Consumer Protection Law

Consumer Protection Law has, until recently, enjoyed the least attention and this complex field was largely unregulated. The South African government promulgated the Consumer Protection Act in 2008, as well as a number of associated regulations, in terms of which consumers enjoy extraordinary protection against suppliers.

Whilst the Consumer Protection Act (hereafter referred to as the CPA) beefs up protection for consumers, which is welcomed, the Act may have unforeseen consequences including increased prices as retailers, wholesalers and manufacturers take steps to minimize potential losses and pay for lawsuits.

There are very important provisions in the CPA that all consumers should take note of when it comes to upholding their rights. Section 61 of the CPA deals with liability for damage caused by goods and what is important is that there is a major difference between the CPA position as the common law requires that the person be negligent or that there be a breach of an explicit or implied contractual term. Section 61, on the other hand, imposes a no-fault liability on any producer or importer, distributor or retailer of any goods for damage caused wholly or partly as a consequence of supplying any unsafe goods, a product failure, defect or hazard in any goods, or inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, irrespective whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be. Thus, the consumer may hold at their discretion any or all persons in the supply chain liable for damages, the one paying the others to be absolved.

The CPA further provides that every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended, are of good quality, in good working order and free of any defects, will be useable and durable for a reasonable period of time having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply, and comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993) or any other public regulation. In addition to the right set out above, if a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier ordinarily offers to supply such goods or acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated and in any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated above.

Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the abovementioned requirements and standards, and the supplier must either repair or replace the failed, unsafe or defective goods, or refund to the consumer the price paid by the consumer for the goods, at the option of the consumer. However, if a supplier elects to repair any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must replace the goods, or refund to the consumer the price paid by the consumer for the goods. The above implied warranty and the right to return goods are each in addition to any other implied warranty or condition imposed by the common law, this Act or any other public regulation, and any express warranty or condition stipulated by the producer or importer, distributor or retailer, as the case may be.

Having been involved on behalf of the industry in every stage of the legislative process and have contributed comments to the DTI in the drafting stages of the legislation, Hahn & Hahn Attorneys are perfectly placed to advise you on the CPA.

Other than the CPA, there are numerous Provincial and Local Authority Laws and By-Laws which regulate various aspects of consumer protection and which should be understood and incorporated into the procedures at all levels of the supply chain.

Further, our attorneys have experience with the various alternative dispute resolution processes afforded to consumers under the CPA such as the National Consumer Commission and the National Consumer Tribunal.

Finally, the Consumer Goods and Services Ombudsman (CGSO) has been accredited under Section 82 of the Consumer Protection Act and is now empowered to deal with consumer complaints in respect of the Consumer Goods and Services industries where these are not covered under other Ombud schemes such as the Motor Industry Ombud.

For assistance and more information, please contact our experts on Consumer Protection Law at Hahn & Hahn Attorneys.