Louis Nel

ADV. LOUIS NEL

‘A’ SECTION 51 – PROHIBITED TRANSACTIONS, AGREEMENTS, TERMS OR CONDITIONS

• Any transgression of any of the above will result in such activity being void & thus unenforceable [Section 51 (3)] – it could mean the section/clause or the entire agreement!

‘B’ SECTION 52 – POWERS OF COURT TO ENSURE FAIR AND JUST CONDUCT, TERMS AND CONDITIONS

• This section pertains to a transgression of sections 40, 41 & 49
• Factors the court must consider
o Did the consumer get fair value
o The balance of power & e.g. knowledge & literacy of consumer such as first time traveler/buyer
o Forseeable circumstances
o Conduct of the parties
o Use of plain language
o Section 52 (2) (h) – important for T&C & record-keeping:
whether the consumer knew or ought reasonably to have known of the existence and extent of any particular provision of the agreement that is alleged to have been unfair, unreasonable or unjust, having regard to any—
(i) custom of trade; and
(ii) any previous dealings between the parties;

• Steps the court may take:
o court determines transaction or agreement was, in whole or in part, unconscionable, unjust, unreasonable or unfair (i.e. sections 40 & 48) – order supplier to:

(i) Restore money or property to the consumer;
(ii) Compensate the consumer for losses or expenses relating to—
(aa) the transaction or agreement; or
(bb) the proceedings of the court;
(iii) Require the supplier to cease any practice, or alter any practice,
form or document, as required to avoid a repetition of the supplier’s conduct.o person alleges that an agreement, a term or condition of an agreement, or a notice to which a transaction or agreement is purportedly subject, is void in terms of this Act (Section 51) or failed to satisfy any applicable requirements set out in section 49

  • If void: sever part of the agreement, provision or notice; alter it; declare the entire agreement, provision or notice void retroactively;
  • If breaching section 49: sever the provision or notice from the agreement; declare it to have no force or effect;
  • IN ADDITION to the above it can ‘make any order that is just & reasonable’;

‘C’ SECTION 100 COMPLIANCE NOTICE & PENALTIES

• The consumer commissioner (‘CC’) can issue a compliance notice i.e. requiring supplier to rectify transgression;
• Failing that the CC can impose penalties

‘D’ SECTION 111 PENALTIES (if convicted of offence)

• Contravention of section 107 (1) (Breach of confidence), to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment; or
• in any other case, to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment

‘E’ SECTION 112 ADMINISTRATIVE FINES (NATIONAL CONSUMER TRIBUNAL)

• An administrative fine imposed in terms of this Act may not exceed the greater of—

o 10 per cent of the respondent’s annual turnover during the preceding financial year; or
o R1 000 000.

• When determining an appropriate administrative fine, the Tribunal must consider the following factors:

o The nature, duration, gravity and extent of the contravention;
o any loss or damage suffered as a result of the contravention;
o the behaviour of the respondent;
o the market circumstances in which the contravention took place;
o the level of profit derived from the contravention;
o the degree to which the respondent has co-operated with the Commission and the Tribunal; and
o whether the respondent has previously been found in contravention of this Act.

 

DISCLAIMER 

 This newsletter/article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at [email protected],za or on +27 83 679 4556’