scholarly journals Parol evidence and the Consumer Protection Act 68 of 2008

2021 ◽  
Vol 24 ◽  
pp. 1-27
Author(s):  
Marianne Lombard
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Standard Form ◽  
Consumer Protection Act ◽  
The United Kingdom ◽  
Consumer Rights ◽  
Bargaining Position ◽  
Protection Legislation ◽  
Strict Enforcement ◽  
The Individual

The conflict between the objectives of the Consumer Protection Act 68 of 2008 – to protect consumers and ensure accessible and transparent redress – and the purpose of the parol evidence rule – to exclude extrinsic evidence and observe the maxim pact servanda sunt ‒ is evident and forms the basis of this article. The purpose of consumer protection legislation is to balance the rights of consumers and suppliers, to protect the interests of consumers and to ensure efficient redress for consumers who have been wronged. The parol evidence rule, which is still in effect in South Africa, prohibits extrinsic evidence in a dispute to interpret a written agreement between parties to ensure certainty on the terms and conditions agreed to in writing. In practice, the parol evidence rule can disadvantage consumers who enter into standard-form contracts, as they normally are in an inferior bargaining position and cannot negotiate the individual terms and conditions of consumer agreements. It is obvious that the strict enforcement of the parol evidence rule in consumer agreements could lead to unjust results in consumer disputes. The provisions of the Consumer Protection Act 68 of 2008 are discussed to establish the extent of the limitation of the parol evidence rule therein. Then, the Consumer Rights Act, 2015 in the United Kingdom is considered to establish the tendency to limit the application of the rule in foreign consumer legislation, and to compare that to the position in South Africa. This article discusses whether the restriction or limitation of the parol evidence rule in the Consumer Protection Act is efficient in reaching the aims and objectives of the Act.  

scholarly journals The Implications of Consumer Protection Legislation for Hotels and Guests in South Africa

2017 ◽  
Vol 9 (2(J)) ◽  
pp. 33-45
Author(s):  
Raeesah Mohamed ◽  
Karunanidhi Reddy ◽  
P. M. Naidoo
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Race And Ethnicity ◽  
Standard Form ◽  
Business Practices ◽  
Open Market ◽  
Low Literacy ◽  
Ethical Business ◽  
Bargaining Position ◽  
Unfair Terms

During the apartheid era, consumers in South Africa, based on their race and ethnicity, were restricted when concluding contracts, as there was no open market trade. As consumers, hotel guests could also be victims of unfair business practices. Hotels use standard form contracts that may include unfair terms that favour the business and which are over-protective of business interests. A significant percentage of the population have low literacy levels, which severely disadvantage them when it comes to understanding the content and consequence of contracts. The Consumer Protection Act (CPA) introduces wide-ranging legal measures to protect consumers, including hotel guests, from exploitation and abuse in the marketplace and sets out comprehensive obligations for hotels. This article provides a descriptive critique based on literature and describes the challenges faced by hotel guests and discusses the implications of the Act for hotels and guests. It concludes that not only does the CPA advocate ethical business practices that are mandatory for hotels, but it also introduces a range of rights and protection for guests as consumers. The CPA has introduced a shift in contract law from a standpoint which allowed the parties the freedom to choose the content of the contract to one where fairness and transparency is imperative, as protection in terms of legislation compensates for the weaker bargaining position of the consumer.

scholarly journals Fundamental Consumer Rights Under the Consumer Protection Act 68 of 2008: A Critical Overview and Analysis

2017 ◽  
Vol 13 (3) ◽  
pp. 301
Author(s):  
Wenette Jacobs ◽  
Philip N Stoop ◽  
René Van Niekerk
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Common Law ◽  
Fair Value ◽  
Wide Field ◽  
Business Practices ◽  
Consumer Protection Act ◽  
Consumer Rights ◽  
The Common ◽  
The Government

South Africa was in need of a comprehensive framework of legislation, policies and government authorities to regulate consumer-supplier interaction. The Consumer Protection Act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 April 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices. Certain areas of the common law regarding consumer rights have been codified by the Act and certain unfair business practices that were previously unregulated are now governed by the Act. The Act has a wide field of application. It applies to every transaction occurring within South Africa for the supply of goods or services or the promotion of goods or services and the goods or services themselves, unless the transaction is exempted from the application of the Act. The Act also specifically regulates aspects of franchise agreements. In terms of the Act, consumers obtain several new rights and some existing rights are broadened and reinforced. These rights are: the right to equality in the consumer market; privacy; choice; disclosure and information; fair and responsible marketing; fair and honest dealing; fair, just and reasonable terms and conditions; and fair value, good quality and safety. The last right in terms of the Act deals with a supplier's accountability to consumers. The authors critically analyse and discuss these rights. It is clear that the Act is written in favour of the consumer. Various provisions of the Act make inroads into the common-law position to strengthen the position of the consumer vis-à-vis the supplier and suppliers are undoubtedly facing an onerous task to prepare to comply, and eventually attempt to comply, with the Act. Although the Act has its own interpretation clause, which provides that it must be interpreted in a manner that gives effect to the purposes of the Act, the Act poses many uncertainties and interpretational and practical challenges. Many questions are therefore raised, some of which remain unanswered. These questions illustrate some of the uncertainties concerning the scope and possible interpretation of the fundamental consumer rights.

scholarly journals PRODUCT LIABILITY: A CHANGING PLAYING FIELD?

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
Christin Gowar
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Product Liability ◽  
New Era ◽  
Law System ◽  
Consumer Law ◽  
Playing Field ◽  
Consumer Protection Act ◽  
The United Kingdom ◽  
The Face

Product liability in South Africa has historically been classified as falling within the sphere of the law of delict generally; with fault being a necessary element for liability. However, this historical classification has changed with the dawn of a new era in consumer law. The Consumer Protection Act 68 of 2008, and more specifically section 61, seems to impose liability without fault on certain parties for harm caused by their goods or products. Section 61, on the face of it, appears to be extremely beneficial for consumers who wish to tackle larger companies and defendants in product liability cases. In practice, though, this may not be the case as section 61 shares a number of similarities with the European Directive on Product Liability of 1985 and the United Kingdom Consumer Protection Act 1987, neither of which has been entirely successful in eliminating fault. This article considers the common-law system which has been applied to product liability cases in the past, and thereafter considers the provisions of the Consumer Protection Act which amend the principles applicable, in order to determine whether section 61 will benefit consumers. The article will further look at how similar provisions in Europe have been interpreted and applied by courts in order to assess the potential problems which might arise fromsection 61 in South Africa. Once these problems have been identified, this article will address a provision which is unique to the South African statute which may go some way in bringing about a different result in South Africa, thereby avoiding the problems faced in Europe.

scholarly journals The Implications of Consumer Protection Legislation for Hotels and Guests in South Africa

2017 ◽  
Vol 9 (2) ◽  
pp. 33
Author(s):  
Raeesah Mohamed ◽  
Karunanidhi Reddy ◽  
P. M. Naidoo
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Race And Ethnicity ◽  
Standard Form ◽  
Business Practices ◽  
Open Market ◽  
Low Literacy ◽  
Ethical Business ◽  
Bargaining Position ◽  
Unfair Terms

During the apartheid era, consumers in South Africa, based on their race and ethnicity, were restricted when concluding contracts, as there was no open market trade. As consumers, hotel guests could also be victims of unfair business practices. Hotels use standard form contracts that may include unfair terms that favour the business and which are over-protective of business interests. A significant percentage of the population have low literacy levels, which severely disadvantage them when it comes to understanding the content and consequence of contracts. The Consumer Protection Act (CPA) introduces wide-ranging legal measures to protect consumers, including hotel guests, from exploitation and abuse in the marketplace and sets out comprehensive obligations for hotels. This article provides a descriptive critique based on literature and describes the challenges faced by hotel guests and discusses the implications of the Act for hotels and guests. It concludes that not only does the CPA advocate ethical business practices that are mandatory for hotels, but it also introduces a range of rights and protection for guests as consumers. The CPA has introduced a shift in contract law from a standpoint which allowed the parties the freedom to choose the content of the contract to one where fairness and transparency is imperative, as protection in terms of legislation compensates for the weaker bargaining position of the consumer.

scholarly journals WHY THE NEED FOR CONSUMER PROTECTION LEGISLATION? A LOOK AT SOME OF THE REASONS BEHIND THE PROMULGATION OF THE NATIONAL CREDIT ACT AND THE CONSUMER PROTECTION ACT

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Tanya Woker
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Global Recession ◽  
Consumer Protection Act ◽  
Protection Legislation ◽  
To Come ◽  
National Credit Act ◽  
The Way

Two statutes focusing on consumer protection have been introduced recently: the Consumer Protection Act due to come into effect in October 2010 and the National Credit Act. There are many who criticize this legislation, arguing that this will overburden the economy and will lead to significant costs for business. In this article I examine some of the reasons why the Department of Trade and Industry deemed it necessary to introduce consumer protection legislation. I conclude by arguing that despite the increased costs for business, the legislation is necessary in order to prevent the exploitation of consumers by business that presently exists in South Africa. I do not, however, seek to answer the question whether this legislation will achieve its lofty aims. This, only time will tell. However, many acknowledge that the introduction of the National Credit Act shielded South Africa from some of the worst excesses of the global recession of 2008/2009. It is hoped that the Consumer Protection Act will likewise change the way many in South Africa do business. 

Towards an Extensive Statutory Protection of Consumers in Timeshare Agreements: A Comparative Perspective

2021 ◽  
Vol 29 (1) ◽  
pp. 117-137
Author(s):  
Yeukai Mupangavanhu
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
The European Union ◽  
Time Sharing ◽  
Related Services ◽  
Consumer Protection Act ◽  
Statutory Protection ◽  
Unfair Terms ◽  
High Level

Timeshare property interest has become a major business worldwide. The protection of consumers in various timeshare-related contracts has been characterised by challenges due to outdated laws, lack of appropriate legislation as new products are introduced on the market as well as the inclusion of unfair terms. The European Union (EU) adopted the Timeshare Directive 2008/122/EC which governs a broad range of timeshare-related contracts, namely: timeshare, long-term holiday products, and resale and exchange contracts. In comparison, South Africa and Kenya do not have consolidated legislation that govern timeshare-related contracts. In South Africa, timeshare agreements fall under the Consumer Protection Act 68 of 2008, the Property Time-sharing Control Act 75 of 1993 as well as under common law. In Kenya, the Consumer Protection Act 46 of 2012, which was revised in 2016, governs specific consumer agreements including timeshare contracts. The article compares the position of consumers who enter into timeshare-related services in South Africa, Kenya and the EU. It is argued that the problems faced by consumers who enter into timeshare-related contracts in South Africa and Kenya necessitate legislative protection which should consist of a consolidated statute that specifically regulates such contracts for the attainment of a high level consumer protection.

scholarly journals EQUALITY, THE CONSUMER PROTECTION ACT AND CUSTOMER-SEGMENT PRICING STRATEGIES: IS THERE RELIEF FOR THE POOR RICH TOURIST?

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Mark Tait ◽  
Madéle Tait
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
National Park ◽  
Negative Impact ◽  
Tourism Industry ◽  
Pricing Strategies ◽  
Price Differentiation ◽  
Consumer Protection Act ◽  
Customer Segment ◽  
The Republic

The year 2010 is Soccer World Cup year in South Africa. From watching the press and other media it quickly becomes apparent that this event is perceived as something of a cash cow to be used (and sometimes even abused) to generate maximum profit for certain industries and its businesses. Complaints have been made about airlines and accommodation establishments hiking prices excessively. The tourism industry has been warned about the negative impact such exorbitant prices may have on tourism in the future as South Africa may no longer be considered as a value-for-money destination. The hiking of prices is based on an anticipated increase in demand for certain services and products caused by the expected influx of soccer tourists. Businesses world-wide employ different pricing strategies to try and optimize revenue. One such pricing strategy that is employed is to differentiate between citizens and foreign nationals when charging for a service or product. This strategy in the context of the tourism industry is the focus of this note. Whilst the tourist is visiting South Africa s/he may want to visit some attractions and it is often at these places that an interestingsituation can be observed. International tourists have to pay one price whereas citizens pay a reduced price. For instance, a visit to the website of the Addo Elephant National Park reveals that SANParks asks different prices – for South African citizens and residents R30 per day visit, SADC nationals R60 per day visit, and foreign visitors R130 per day visit to the Addo Elephant National Park. Similar price differentiation is employed by private businesses as well. Other jurisdictions in Africa also make use of similar customer-segment pricing strategies. The Ugandan Wildlife Authority differentiates between admission fees for foreign non-residents and East-Africans to protected areas such as Lake Mburo and the Semuliki National Park. The Consumer Protection Act 68 of 2008 (hereinafter “the CPA”), once operational, will prohibit the charging of different prices for any goods or services to any persons or category of persons on the basis of one or more of the grounds of unfair discrimination contemplated in section 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution) or Chapter 2 of the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter “the Equality Act”), amongst others. Does this mean that suppliers of services and products to tourists who differentiate in the prices asked between citizens and non-citizens will fall foul of this provision of the CPA? This is the question this note will endeavour to answer.

scholarly journals New Clause in Bank Credit Agreement in Relation to Consumer Protection Act (Study on PT. Bank Negara Indonesia, Tbk. Denpasar Branch)

2021 ◽  
Vol 8 (1) ◽  
pp. 30-36
Author(s):  
Komang Yustika Dewi Suryaningsih ◽  
A.A.A. Ngr. Tini Rusmini Gorda
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Problem Formulation ◽  
Legal Issue ◽  
Consumer Protection Act ◽  
Legal Consequence ◽  
Protection Theory ◽  
Credit Agreement ◽  
Balancing Principle ◽  
Credit Contract

Credit agreement in standard form which is being made unilaterally by the bank until present is still becoming a special legal issue in agreement field of civil law. In addition, viewed from the side of the agreement it is also against consumer protection law as set in Consumer Protection Act. Problem formulation of is divided into namely regarding the existence of standard clause in bank agreement if associated with Article 18 of Consumer Protection Act and legal consequence of standard clause in credit agreement associated with consumer protection. This study aims to identify the presence of standard clause in banking agreement if related with Article 18 of Consumer Protection Act and legal consequence to the standard clause in credit contract is associated with consumer protection.  The research is a juridical empirical. The location is on PT. Bank Negara Indonesia in Denpasar city. The author is guided by laws and regulations related with public fact, that is first problem formulation is analyzed from balancing principle and next the second problem formulation is from consumer protection theory. The result shows that the implementation of the provision tends to protect the bank as businesses. Moreover, the legal consequence of Bank BNI’s credit contract which does not meet the provision will result in null and void.

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