Louis Nel

By Adv Louis Nel B.Comm, LL.B. LL.M., Corporate Legal Facilitator

This is the 1st insert of 8 dealing with the captioned matter – a topic that is regularly entertained by the CPA (the Consumer Protection Act) Commissioner of late [586]

 This is most probably the application of the CPA that most often ‘rears its head’ in the travel & tourism industry but the comments contained in the series of articles are applicable to any business – various sections (8 in total!!) of the CPA apply – the main one is section 17 but we’ll look at each of the 8 & then provide you a ‘what to do’ guideline on each.

 

However, the first thing to do is to have a look at the common law, i.e. the law that applies whether or not you resort to/apply the CPA: 

 

  • It is my view that the CPA has not revoked the common law per se
  • Thus such common law duties as caveat emptor (‘Buyer beware’) and caveat subscriptor (‘Signatory beware’), especially read with my 1st point above, are in my view ‘alive and well’- What does this mean? It means that a consumer/customer/client cannot simply sign any document pertaining to a purchase or other commercial arrangement and then, when the ‘deal goes sour’, expect the CPA to ‘come to their rescue’! They must behave responsibly e.g. read the applicable terms and conditions (‘T&C’), ask questions and be satisfied with the explanation BEFORE they sing and pay – generally speaking, the merchant is required to explain (in more detail than before the CPA)the ‘ins & outs’ of the deal e.g. the use of the equipment, warranty etc (especially e.g. non-refundable deposits & return of goods policies) and for what the consumer is accountable/responsible          
  • Section 2 (10): Interpretation – states that:

 

‘No provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law’

 

  • Section 4 (2): Consumer Rights states that

 

‘The court must develop the common law as necessary to improve the realisation and enjoyment of consumer rights generally, and in particular by persons contemplated in section 3(1)(b)’ (e.g. low income) – This means the common law as it stands now will be extrapolated and developed within the context of the CPA aims, bearing in mind the safeguards and protection of consumer rights it contains. Conversely, the CPA does not mean the end of the common law!    

 

  • Section 56 (4): Implied Warranty specifically states that the implied warrant contained in section 56 (1):

 

‘… applies in addition to any other implied warranty or condition imposed by the common law’

 

  • The above may be read to imply that whilst consumer common law rights are retained and in fact enhanced, supplier common law rights have been revoked – I don’t believe that to be the correct reading or implication of the CPA as inter alia the rules of interpretation clearly states that such a meaning must be unequivocal which I do not believe to be the case – thus there are a number of supplier rights which we will deal with in a separate series of articles   

 

‘WHAT TO DO’ GUIDELINE

 

  • Revisit your documents quote, estimate and T&C
  • Be aware of your rights as a supplier in the CPA – ‘Yes’ there are a few!
  • Notwithstanding the common law duties of the consumer discussed above, ensure that you’ve brought all onerous aspects of the transaction to the attention of the consumer (At least once during your relationship with them), get them to initial or acknowledge in some way the pertinent clauses/that you’ve brought it to their attention & DO NOT assume anything!   
  • Don’t panic when you receive a consumer complaint and/or letter from the consumer commissioner!  

 

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