Consumers must know how to use the Consumer Protection Act to protect their rights.
With World Consumer Rights Day celebrated on 15 March, it is time for consumers to pause and remember that everyone wants your money, but not everyone is willing to respect your rights.
Countries all over the world celebrate World Consumer Rights Day to commemorate 15 March 1962, the day when US president John F. Kennedy mentioned four basic consumer rights in a speech:
- the right to safety;
- the right to choose;
- the right to get information; and
- the right to be heard when you complain.
The organisation Consumers International later added four more basic consumer rights:
- the right to consumer education;
- the right to fair compensation;
- the right to a healthy environment; and
- the right to have your basic needs satisfied.
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How the Consumer Protection Act protects your rights as a consumer
In South Africa, the Consumer Protection Act (CPA) protects your rights as a consumer since 2011.
The CPA was proclaimed to:
- support and protect your economic interests;
- give you better access to better quality information so that you can make better and informed choices;
- protect you from goods and services that could harm you; and
- make it possible for you to receive compensation if you have a valid complaint.
But that is not all. The CPA also aims to ensure that you are educated on consumer issues and the results of your choices, enable consumers to form groups that will support and back their interests and support consumers to participate in decisions in the marketplace that will affect them.
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When does the CPA apply?
The CPA applies to:
- every transaction in South Africa that is not specifically excluded;
- the advertising, marketing and selling of any goods or services;
- transactions in South Africa as well as transactions where the supplier does not make a profit.
Transactions that are not covered by the CPA are usually regulated by another specific act, such as the Long-term Insurance Act, that applies to long-term insurance.
The CPA also covers other transactions between suppliers of goods or services and consumers, such as consumer transactions with clubs, trade unions, associations and societies or other organisations, corporate or incorporated, with voluntary paid or free membership.
An invitation to join a franchise and the transactions that follow, even if the franchise is a business with assets or turnover of more than R2 million per year, are also included as transactions where the CPA applies.
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When does the CPA not apply?
The CPA does not apply to goods and services exchanged in a private sale between two or more consumers (a private sale), goods and services supplied to government or supplied to a company with an annual turnover or asset value of R2 million or more at the time of the transaction.
Consumers must also remember that transactions that are part of a credit agreement under the National Credit Act (such as an instalment sale agreement, credit facility, credit card or loan) and services supplied under an employment contract are also excluded from the provisions of the CPA.
The CPA defines a transaction as an agreement between a consumer and one or more other people or companies to buy goods and services or the process of supplying the goods or services to the consumer for payment.
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Who is a consumer?
According to the CPA, the consumer is someone who:
- is on the receiving end of marketing of goods and services;
- has made a deal with a supplier;
- uses a product or service in certain circumstances, even the person did not make the deal;
- is considering or who has entered into a franchise agreement.
A small business, trust, partnership, body corporate or company with an annual turnover or asset value of under R2 million is also considered a consumer under the CPA.
Who is a supplier?
A supplier is a person or company who markets and provides goods or performs services in the ordinary course of business for consumers, according to the CPA. A service provider is someone who promotes, supplies or offers to supply any service.
However, if you sell a product or service as an individual to another consumer, you are not a supplier.
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The CPA protects these consumer rights
The CPA protects these fundamental consumer rights:
- equality in the consumer market;
- privacy;
- choice;
- disclosure and information;
- fair and responsible marketing;
- fair and honest trading;
- fair, just and reasonable terms and conditions;
- fair value, good quality and safety;
- to be heard and receive a refund.
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Your right to equality in the consumer market
According to section 8 to 10 of the CPA nobody is allowed to discriminate against you when marketing goods and services, but it sets reasonable grounds to treat you differently in certain circumstances, such as not selling alcohol and cigarettes to minors.
Your right to privacy
Sections 11 and 12 of the CPA deal with your right to restrict unwanted direct marketing and regulate times when companies may contact you to market goods and services.
Your right to choose
As part of your right to choose, sections 13 to 21 provide for your right to choose a supplier, when fixed term agreements expire or can be renewed, prior authorisation of repair or maintenance services and a cooling-off period after direct marketing.
Your rights to cancel advance bookings and select or check goods, as well as your rights regarding the supply of goods or services, your right to return goods and unsolicited goods or services are also covered by these sections.
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Your right to disclosure and information
Sections 22 to 28 provide for your rights to get information in plain and understandable language and know the price of goods or services.
Labels and trade descriptions must be affixed to products and suppliers must also disclose when goods have been rebuilt or bought on the grey market and they must keep track of sales. They must also deliver according to their sales staff’s claims and actions and shippers and installers must be able to prove who they are.
Your right to fair and responsible marketing
Your right to fair and responsible marketing is entrenched in sections 29 to 39. These sections provide that bait marketing and negative option marketing are not allowed, while various provisions apply to catalogue marketing, loyalty programmes, trade coupons, competitions, alternative work schemes and referral sales.
Suppliers are also banned from concluding agreements with people who are not commercially competent. Your rights regarding direct marketing are also covered.
Your right to fair and honest trading
Sections 41 to 47 cover your rights to be treated fairly and honestly. Unscrupulous behaviour, false, misleading or deceptive representations, fraudulent schemes and offers and pyramid and similar schemes are not allowed.
This part of the CPA also gives you the right to assume that the supplier may sell the goods on offer. These sections also govern how auctions must be held, how goods can be exchanged, held, waived and replaced and how overselling and over-booking should be handled.
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Your right to fair, just and reasonable terms and conditions
Sections 48 to 52 protect you from unfair, unreasonable or unjust contract negotiations. It stipulates that you must be informed of certain terms and conditions, that certain transactions, agreements, bargaining or conditions are unlawful and that the courts can ensure fair and just conduct, terms and conditions.
Your right to fair value, good quality and safety
In this part of the act, sections 53 to 61 provide for your right to fair value, good quality and safety when buying products or services. You have the right to demand quality service and receive safe goods of good quality.
All goods and services have a guarantee of quality and a guarantee applies to all repaired goods as well. You must also be warned of possible risks. Hazardous materials must be stored correctly and products that have a defect must be recalled, while the merchant and everyone in the manufacturing and sales chain is liable for damages caused by goods.
Sections 62 to 67 determine the supplier’s accountability. It covers lay-bys, prepaid certificates, credits and vouchers and prepaid services. Suppliers must also keep your property safe and account for it. Deposits for containers and the return of parts and materials are also covered by this part of the CPA.
Your right to be heard and refunded
This part of the act deals with the protection of consumer rights, how the rights can be enforced, how complaints are resolved and when you can complain to the National Consumer Commission.
