"Innovative Orders" Under the South African Consumer Protection Act 68 of 2008

This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time". The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures".

Developing and implementing an anti-corruption ethics and compliance programme in the African environment

This article discusses the development and implementation of anti-corruption ethics and compliance programme in the African business environment. In the past decade, an international legal framework has been developed to tackle corruption both in public and private sectors. This framework includes the United Nations Convention against Corruption (UNCAC), which entered into force in 2005, and the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which entered into force in 1999. These instruments mandate that State Parties must criminalise and punish a variety of corrupt practices. Relevant domestic laws have a direct impact on business, especially in States Parties instruments that require the establishment of liability of legal persons for corrupt acts. The African Union Convention also requires States Parties to establish mechanisms to encourage participation by the private sector in the fight against unfair competition, respect of the tender procedures and property rights. The paper details various steps needed to efficiently and effectively implement anti-corruption ethics and compliance programme in the African context. The first part of the paper develops the primary objective of the corruption risk assessment which is to better understand the risk exposure so that informed risk management decisions may be taken. A structured approach for how enterprises could conduct an anti-corruption risk assessment will be outlined in this first section. The author argued in this same first section that each enterprise’s own risk assessment exercise is unique, depending on that enterprise’s industry, size, location, and other factors inherent to that organisation. The second part of the paper drafts the development and the implementation of an anti-corruption programme. The paper concludes by stating that an anti-corruption and compliance programme is not a panacea for fighting all the ills on corruption and fraud problems that a certain country or company is facing.

Export compliance for life sciences

Long before worrying about US Food and Drug Administration compliance, organisations that work with foreign employees, contractors, vendors or partners need to be concerned with the importation and exportation of technological knowledge – the so-called ‘deemed exports’. This is particularly apt for executives in the biopharmaceutical, biotechnology and medical device fields who outsource research and development overseas or who hire non-US citizens. US export regulations have strict guidelines on the types of knowledge that cannot be shared with non-US citizens and carry harsh penalties for non-compliance that fall equally on the organisation in question and its executives who ought to have known better. This paper presents an eight-step strategy to develop a regulatory compliance programme that meets US export compliance regulations.