The Regulation of False Advertising in South Africa: An Analysis of the Consumer Protection Act 68 of 2008 and Self-Regulation

2021 ◽  
Vol 33 (2) ◽  
pp. 260-288
Author(s):  
Yeukai Mupangavanhu ◽  
Dominique Kerchhoff
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Self Regulation ◽  
Advertising Industry ◽  
Goods And Services ◽  
Additional Layer ◽  
Consumer Protection Act ◽  
Deceptive Advertising ◽  
Consumer Contracts

The Consumer Protection Act 68 of 2008 (CPA) regulates the provision of goods and services, the conclusion of consumer contracts as well as the promotion and marketing of goods and services. It also protects consumers from unscrupulous advertisers who use false and misleading advertisements to induce consumers to enter into contracts which they would otherwise not have concluded. This article seeks to critically analyse the legislative provisions relating to false, misleading, and deceptive advertising, and the seemingly accessible and efficient legal redress mechanism created under the CPA. Self-regulation by bodies such as the Advertising Regulatory Board, which is responsible for the regulation of the advertising industry in South Africa, is also discussed in detail. The article concludes that the co-existence of the CPA and self-regulation is pertinent to ensure that consumers are adequately protected from unscrupulous advertisements. This is because self-regulation provides an additional layer of protection to consumers. It is also argued that the forums created under the CPA should be given powers to declare certain promotional activities and advertisements unfair, unjust or unreasonable.

scholarly journals Judicial Guidance on the Application of Section 49 of the Consumer Protection Act, 2008 – Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa (Pty) Ltd [2020] 1 All SA 857 (WCC)

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 948-960
Author(s):  
Mark Tait
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Western Cape ◽  
Negative Consequences ◽  
High Court ◽  
Consumer Protection Act ◽  
Consumer Contracts ◽  
Number Of Publications ◽  
The Impact

In South Africa, the legislature’s response to the negative consequences resulting from the pervasive use of disclaimers by suppliers has been to regulate the use of these terms through the enactment of a number of provisions in the Consumer Protection Act 68 of 2008 (CPA), including sections 48, 49 and 51. A number of publications have considered the meaning of these provisions and the impact they may have on the use of disclaimers in consumer contracts. As a consequence of the widespread use of disclaimers and the adverse consequences they may hold for consumers, any judicial pronouncement on the impact of the CPA on these clauses is significant. In Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa ([2020] 1 All SA 857 (WCC) (Skydive v UPS)), the Western Cape High Court was afforded the opportunity to consider the impact of aspects of section 49 specifically on the use of a clause in a consumer agreement excluding the risk or liability of suppliers (referred to as an “exemption clause” in this note).Section 49 of the CPA applies to four distinct types of clause enumerated in section 49(1) – namely, clauses limiting the risk or liability of suppliers in respect of any other person; clauses constituting an assumption of risk or liability by the consumer; clauses imposing an obligation on the consumer to indemnify the supplier for any cause; and clauses requiring a consumer to acknowledge a particular fact. As indicated, in Skydive v UPS, the contentious clause was one excluding the risk or liability of the supplier. The focus of this note then is on the interpretation and application by the court in Skydive v UPS of the relevant provisions of section 49 of the CPA to an exemption clause.

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 CONSUMER PROTECTION IN THE SUPPLY OF SERVICES: A COMPARATIVE STUDY BETWEEN THE CONSUMER PROTECTION ACT 1999 AND ISLAMIC LAW

2012 ◽  
Vol 18 (1) ◽  
Author(s):  
Elistina Abu Bakar ◽  
Naemah Amin
Keyword(s):  
Comparative Study ◽  
Consumer Protection ◽  
Islamic Law ◽  
Service Providers ◽  
Goods And Services ◽  
Left Behind ◽  
Consumer Protection Act ◽  
The Law

The Consumer Protection Act 1999 (CPA) that came into force on 15 November 1999 represents a milestone in consumer protection in Malaysia.1 It has several important provisions, some of which are more beneficial than those found in the law of contract and law of tort since its objective is specifically to protect the interest of consumers. The statute is applicable to both goods and services but the provisions on services are very important because previously the laws regulating the supply of services seem to be left behind compared to those regulating goods. The aim of this paper is to examine the relevant provisions of the CPA and make a comparative study with the protection available under the Islamic law of muʿāmalāt. The central discussions are on section 53, section 54 and Part IX of the CPA since they deal specifically with the supply of services. The liabilities of the service providers are scrutinised as well as consumers’ rights of redress

scholarly journals THE APPLICATION OF THE PLAIN AND UNDERSTANDABLE LANGUAGE REQUIREMENT IN TERMS OF THE CONSUMER PROTECTION ACT – CAN WE LEARN FROM PAST PRECEDENT?

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
Stephen Newman
Keyword(s):  
Consumer Protection ◽  
Consumer Protection Act ◽  
Consumer Contracts ◽  
Language Requirement

In many instances consumers enter into contracts when buying goods or services. These contracts are extremely important as they contain the terms under which the contract is concluded. The terms may also be contained on the reverse side of a receipt or, on occasion, in a separate document which is given to them either when they conclude the contract or at a later stage. In addition to written contracts which contain terms and notices placed at business premises warning consumers of various hazards or consequences also bind consumers. However, consumers will seldom read the contractual documents that they sign and notices are also often ignored. A variety of reasons for this can be put forward; amongst others, consumers are commonly more interested in obtaining the goods rather than the consequences of the purchase. They may feel that they trust the business that they are dealing with to deal honestly, or they may simply believe that they will not be able to understand the terms and conditions, so they do not bother to read them. Van den Bergh (Readable Consumer Contracts (1985) 1) proposes that one of the reasons for the latter may be that the terms or notices are written in a manner which is unattractive and unintelligible to consumers. A possible solution to this is to try and ensure that all written material is in a format and style which is easy to read and in a language which is easy for the consumer to understand. This is the objective of plain and understandable language requirements in legislation.

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.

Enforcement of Foreign Judgment in E-Commerce Consumer Contracts In Malaysia: Issues and Challenges

2015 ◽  
Vol 12 (2) ◽  
pp. 67
Author(s):  
Shazanah Sarwar Khan ◽  
SHEELA JAYABALAN
Keyword(s):  
Electronic Commerce ◽  
Consumer Protection ◽  
Convenient Method ◽  
Consumer Contract ◽  
Conflict Of Laws ◽  
Online Transactions ◽  
Goods And Services ◽  
Consumer Contracts ◽  
Foreign Judgment

Electronic commerce or e-commerce is gaining momentum in Malaysia. Consumers are finding transacting online to be a convenient method especially to buy goods and services. As online transactions involve transborder commerce, disputes are inevitable. As such the question of conflict of laws arises, one of which involves enforcement of foreign judgement. Even though there is a law regulating enforcement of foreign judgement in Malaysia, however it does not take into consideration consumer protection. Adapting doctrinal research, this article discusses issues and challenges arising in the enforcement of foreign judgement in e-commerce consumer contracts in Malaysia. Keywords: Enforcement of Foreign Judgement, Reciprocal Enforcement of Foreign Judgement Act 1958, Brussels I Regulation, E-Commerce Consumer Contract

Consumer Protection Measures in Non-Life Insurance Contracts: A South African and Australasian Trend?

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Samantha Huneberg
Keyword(s):  
South Africa ◽  
New Zealand ◽  
South African ◽  
Consumer Protection ◽  
Life Insurance ◽  
Insurance Industry ◽  
Protection Measures ◽  
Insurance Contracts ◽  
Consumer Protection Act ◽  
Worldwide Phenomenon

Consumer protection has gained prominence in many different industries worldwide. In South Africa, the consumer protection trend was first identified in the promulgation of the National Credit Act and the Consumer Protection Act. Extending protection to the insurance industry has not been far behind. In recent years, South Africa has promulgated new legislative measures specifically aimed at the protection of consumers in relation to insurance contracts (policyholders). This trend is fast becoming a worldwide phenomenon with both Australia and New Zealand also recognising the importance of consumer protection measures in their insurance legislation. This article considers the position in South Africa, Australia and New Zealand with regard to consumer protection measures in insurance legislation within the non-life insurance sphere.

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