CONSUMER PROTECTION ACT - WIPO

1 REPUBLIC OF SOUTH AFRICACONSUMER PROTECTIONACTIRIPHABHULIKI YASENINGIZIMU AFRIKAUMTHETHOWOKUVIKELWA KWABATHENGINo 68, 2008 Creamer Media Pty Ltd +27 11 622 3744 EXPLANATORY NOTE:[]Words in bold type in square brackets indicate omissions fromexisting underlined with a solid line indicate insertions inexisting promote a fair, accessible and sustainable marketplace for CONSUMER productsand services and for that purpose to establish national norms and standardsrelating to CONSUMER PROTECTION , to provide for improved standards of consumerinformation, to prohibit certain unfair marketing and business practices, topromote responsible CONSUMER behaviour, to promote a consistent legislative andenforcement framework relating to CONSUMER transactions and agreements, toestablish the National CONSUMER Commission, to repeal sections 2 to 13 andsections 16 to 17 of the Merchandise Marks Act, 1941 (Act No.)

2 17 of 1941), theBusiness Names Act, 1960 (Act No. 27 of 1960), the Price Control Act, 1964 (Act of 1964), the Sales and Service Matters Act, 1964 (Act No. 25 of 1964), the TradePractices Act, 1976 (Act No. 76 of 1976), the CONSUMER Affairs (Unfair BusinessPractices) Act, 1988 (Act No. 71 of 1988), and to make consequential amendmentsto various other Acts; and to provide for related incidental people of South Africa recognise That apartheid and discriminatory laws of the past have burdened the nation withunacceptably high levels of poverty, illiteracy and other forms of social andeconomic inequality;That it is necessary to develop and employ innovative means to (a)fulfil the rights of historically disadvantaged persons and to promote their fullparticipation as consumers;(b)protect the interests of all consumers, ensure accessible, transparent andefficient redress for consumers who are subjected to abuse or exploitation inthe marketplace; and(c)to give effect to internationally recognised customer rights.

3 That recent and emerging technological changes, trading methods, patterns andagreements have brought, and will continue to bring, new benefits, opportunitiesCreamer Media Pty Ltd +27 11 622 3744 challenges to the market for CONSUMER goods and services within South Africa;andThat it is desirable to promote an economic environment that supports andstrengthens a culture of CONSUMER rights and responsibilities, business innovationand enhanced the reasons set out above, and to give effect to the international law obligationsof the Republic, a law is to be enacted in order to promote and protect the economic interests of consumers; improve access to, and the quality of, information that is necessary so thatconsumers are able to make informed choices according to their individualwishes and needs; protect consumers from hazards to their well-being and safety; develop effective means of redress for consumers; promote and provide for CONSUMER education, including education concerningthe social and economic effects of CONSUMER choices; facilitate the freedom of consumers to associate and form groups to advocateand promote their common interests.

4 And promote CONSUMER participation in decision-making processes concerning themarketplace and the interests of IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,as follows: ARRANGEMENT OF SECTIONSS ectionsCHAPTER 1 INTERPRETATION, PURPOSE AND APPLICATIONPart BPurpose, policy and application of and policy of of CONSUMER of of franchise agreementsCHAPTER 2 FUNDAMENTAL CONSUMER RIGHTSPart ARight of equality in CONSUMER against discriminatory marketing45101520 Creamer Media Pty Ltd +27 11 622 3744 grounds for differential treatment in specific court jurisdiction over this PartPart BConsumer s right to to restrict unwanted direct of time for contacting consumersPart CConsumer s right to s right to select and renewal of fixed-term of repair or maintenance s right to cooling-off period after direct s right to cancel advance reservation, booking or s right to choose or examine s rights with respect to delivery of goods or supply of s right to return goods or servicesPart DRight to disclosure and to information in plain and understandable of price of goods or labelling and trade of reconditioned or grey market by of deliverers, installers and othersPart ERight to fair and responsible standards for marketing of goods or option marketing to coupons and similar loyalty work with persons lacking legal capacity65101520253035 Creamer Media Pty Ltd +27 11 622 3744 FRight to fair and honest , misleading or deceptive schemes and and related s right to assume supplier is entitled to sell , deferrals, and waivers and substitution of and over-bookingPart GRight to fair, just and reasonable terms and , unreasonable or unjust contract required for certain terms and CONSUMER transactions.

5 Agreements, terms or of court to ensure fair and just conduct, terms and conditionsPart HRight to fair value, good quality and applicable to this s rights to demand quality s rights to safe, good quality warranty of on repaired concerning fact and nature of and safe disposal of designated products or monitoring and for damage caused by goodsPart ISupplier s accountability to certificates, credits and services and access to service to hold and account for CONSUMER s in respect of containers, pallets or similar of parts and materials85101520253035 Creamer Media Pty Ltd +27 11 622 3744 3 PROTECTION OF CONSUMER RIGHTS AND CONSUMER S VOICEPart AConsumer s of CONSUMER of rights by dispute complaint to CommissionPart BCommission by of to TribunalPart CRedress by of court to enforce CONSUMER rightsPart DCivil society support for CONSUMER s for CONSUMER PROTECTION CONSUMER PROTECTION group may initiate actionsCHAPTER 4 BUSINESS NAMES AND INDUSTRY CODES OF CONDUCTPart ABusiness of of business for business namesPart BIndustry codes of codesCHAPTER 5 NATIONAL CONSUMER PROTECTION INSTITUTIONSPart ANational and provincial exercise of concurrent CONSUMER PROTECTION authorities105101520253035 Creamer Media Pty Ltd +27 11 622 3744 BEstablishment of National CONSUMER of National CONSUMER may direct policy and require of of inspectors and and reports to

6 MinisterPart CFunctions of provisions concerning Commission of codes of practice relating to of legislative of CONSUMER PROTECTION within organs of and public with other regulatory and recommendations to MinisterCHAPTER 6 ENFORCEMENT OF ACTPart AEnforcement by functions of Commission100. Compliance notices101. Objection to noticesPart BPowers in support of investigation102. Summons103. Authority to enter and search under warrant104. Powers to enter and search105. Conduct of entry and search106. Claims that information is confidentialPart COffences and penalties107. Breach of confidence108. Hindering administration of Act109. Offences relating to Commission and Tribunal110. Offences relating to prohibited conduct111. Penalties112. Administrative fines113. Vicarious liability12510152025303540 Creamer Media Pty Ltd +27 11 622 3744 DMiscellaneous matters114. Interim relief115.

7 Civil actions and jurisdiction116. Limitations of bringing action117. Standard of proof118. Serving documents119. Proof of factsCHAPTER 7 GENERAL PROVISIONS120. Regulations121. Consequential amendments, repeal of laws and transitional arrangements122. Short title and commencementSCHEDULE 1 Amendment of lawsSCHEDULE 2 Transitional effect of of Act to pre-existing transactions and operation of section 11(4)(b)(ii) from requirement to register business preservation of regulations, rights, duties, notices and other regulatory application of repealed employees enforcing previous of certain lawsCHAPTER 1 INTERPRETATION, PURPOSE AND APPLICATIONPart this Act accredited CONSUMER PROTECTION group means a CONSUMER PROTECTION groupthat has been accredited by the Commission in terms of section 78 for the purposescontemplated in that section or elsewhere in this Act; advertisement means any direct or indirect visual or oral communicationtransmitted by any medium, or any representation or reference written, inscribed,recorded, encoded upon or embedded within any medium, by means of which aperson seeks to (a)bring to the attention of all or part of the public (i) the existence or identity of a supplier; or14510152025303540 Creamer Media Pty Ltd +27 11 622 3744 (ii) the existence, nature, availability, properties, advantages or uses of anygoods or services that are available for supply, or the conditions on, orprices at, which any goods or services are available for supply;(b)promote the supply of any goods or services; or(c)promote any cause; agreement means an arrangement or understanding between or among two ormore parties that purports to establish a relationship in law between or amongthem.

8 Alternative dispute resolution agent means (a)an ombud with jurisdiction;(b)an industry ombud accredited in terms of section 82(6); or(c)a person or entity providing conciliation, mediation or arbitration services toassist in the resolution of CONSUMER disputes, other than an ombud withjurisdiction, or an accredited industry ombud; applicable provincial CONSUMER legislation means legislation concerningconsumer PROTECTION that has been enacted by a province; apply , when used in relation to a trade description, price, notice or any similarform of information, means to emboss, impress, engrave, etch, print or weave into,work into or onto, annex or affix to, or incorporate within; business means the continual marketing of any goods or services; business name means a name under which a person carries on a business otherthan the person s full name; Cabinet means the body of the national executive described in section 91 of theConstitution; clearly , in relation to the quality of any text, notice or visual representation to beproduced, published or displayed to a CONSUMER , means in a form that satisfies therequirements of section 22; Commission means the National CONSUMER Commission established by section85; complainant means (a)a person who has filed a complaint with the Commission in terms of section71; or(b)the Commission in respect of a complaint that it has initiated, either directlyor at the (i) direction of the Minister in terms of section 86(b);or(ii) request of a provincial CONSUMER PROTECTION authority or other regulatoryauthority, as the case may be.

9 Consideration means anything of value given and accepted in exchange forgoods or services, including (a)money, property, a cheque or other negotiable instrument, a token, a ticket,electronic credit, credit, debit or electronic chip or similar object;(b)labour, barter or other goods or services;(c)loyalty credit or award, coupon or other right to assert a claim; or(d)any other thing, undertaking, promise, agreement or assurance,irrespective of its apparent or intrinsic value, or whether it is transferred directly orindirectly, or involves only the supplier and CONSUMER or other parties in addition tothe supplier and CONSUMER ;1651015202530354045 Creamer Media Pty Ltd +27 11 622 3744 Constitution means the Constitution of the Republic of South Africa, 1996; CONSUMER , in respect of any particular goods or services, means (a)a person to whom those particular goods or services are marketed in theordinary course of the supplier s business;(b)a person who has entered into a transaction with a supplier in the ordinarycourse of the supplier s business, unless the transaction is exempt from theapplication of this Act by section 5(2) or in terms of section 5(3);(c)if the context so requires or permits, a user of those particular goods or arecipient or beneficiary of those particular services, irrespective of whetherthat user, recipient or beneficiary was a party to a transaction concerning thesupply of those particular goods or services; and(d)a franchisee in terms of a franchise agreement, to the extent applicable interms of section 5(6)(b)to(e).

10 CONSUMER agreement means an agreement between a supplier and a consumerother than a franchise agreement; CONSUMER court means a body of that name, or a CONSUMER tribunal, that hasbeen established in terms of applicable provincial CONSUMER legislation; CONSUMER PROTECTION group means an entity promoting the interests orprotection of consumers as contemplated in section 77; court does not include a CONSUMER court; direct marketing means to approach a person, either in person or by mail orelectronic communication, for the direct or indirect purpose of (a)promoting or offering to supply, in the ordinary course of business, any goodsor services to the person; or(b)requesting the person to make a donation of any kind for any reason; display , when used (a)in relation to any goods, means placing, exhibiting or exposing those goodsbefore the public in the ordinary course of business in a manner consistentwith an open invitation to members of the public to inspect, and select, thoseor similar goods for supply to a CONSUMER ; or(b)in relation to a price, mark, notice or other visual representation, means toplace or publish anything in a manner that reasonably creates an associationbetween that price, mark, notice or other visual representation and anyparticular goods or services; distributor , in relation to any particular goods, means a person who, in theordinary course of business (a)is supplied with those goods by a producer, importer or other di