The CPA endeavours to foster an equitable, reachable, and sustainable market for consumer services and goods. It sets out national standards for consumer safeguarding, enhances consumer information quality, and forbids unjust marketing and business behaviours. This framework ensures equitable treatment of consumers with access to critical information.

Q2: Who falls under the category of a consumer?

A consumer is defined as an individual or a juristic person (company or close corporation) marketed to for goods or services and engages in transactions with suppliers in South Africa. However, only juristic persons with an asset value or annual turnover at the time of the relevant transaction(s) of less than R2m are entitled to all the protections under the CPA (as proclaimed by the Minister of Trade and Industry, Government Gazette No 34181 of 1 April 2011). All individual consumers (natural persons including sole proprietor business owners and partners in a partnership) have all the rights and protections under the CPA.

Overview of consumer rights

Q3: What rights do you have as a consumer?

Consumers have various key rights, including:

Equality rights. All customers should be treated fairly by suppliers and without favouritism.
Equitable access to products should be granted to all.
Quality assurance. Products must meet defined quality benchmarks.
Transparent pricing. Prices ought to be clear and reasonable.

Q4: What privacy rights do you have as a consumer?

Consumers can safeguard their privacy from unwelcome marketing, including blocking unwanted communications like SMS, calls, letters, or emails from specific suppliers. Consumers have the choice to accept, restrict, or decline direct marketing. Upon opting out, companies must cease communication.

Q5: What does ‘the right to choose mean’ for consumers?

Consumers have critical rights within the right to choose:

Price comparison. The authority to compare prices and products freely without coercion into bundled deals. A bundled deal is where if you buy one item, you must also buy another item.
Fixed-term contracts. The ability to terminate agreements at term's end without penalties given 20 days' prior written notice. Agreements renew monthly unless cancelled.
Repairs and maintenance. Requesting no-charge written repair estimates with repair approval before billing.
Direct marketing. A five-day rescission period to annul contracts with no penalties, ensuring refunds within 15 days.
Return rights. The right to return flawed or unsafe goods for full refunds and retain unrequested goods after 20 business days.

Q6: What information needs to be disclosed to you as a consumer?

Consumers have multiple rights concerning information disclosure:

Clear contracts. Receipt of contracts in plain language for clarity.
Transparent pricing. Display of prices, unit costs, and clear promotion duration. Offered prices must align with the lower one.
Accurate labelling. Correct product labelling with no misleading data and clear details like origin and expiry.
Sales records. Requestable receipts indicating supplier contact information, product specifics, and total prices.
Delivery verification. Presentation of delivery personnel identification upon request.

Q7: What are consumers' rights concerning equitable marketing practices?

Significant rights are available to consumers regarding fair and responsible marketing:

No deceptive marketing. No misleading pricing or availability assurances. Advertisements must accurately state availability.
Non-forced services. No automatic sign-ups without consent. Refusal and non-payment rights for unrequested goods or services.
Direct marketing policies. Notification of a five-day cancellation window without costs for goods marketed directly.
Catalogue shopping obligations. Catalogue suppliers must provide clear business information and return policies.
Promotional information. Detailed offer information shared. Additional charges on coupon use are prohibited, excluding membership fees.
Customer loyalty programmes: Transparent programmes with clear joining guidelines and benefits.

Q8: What rights do consumers hold for fair and honest transactions?

Consumers deserve safeguards ensuring fair and honest dealings:

Protection against unethical conduct. Bans on physical coercion or harassment, and safeguarding against abusive practices.
Prevention of misleading data. Ban on false or misleading product details, preventing exaggeration or confusion.
Anti-fraud measures. Protection against fraudulent activities like counterfeiting or scams.
Prohibition of pyramid schemes. Bans on pyramid schemes and similar scams promising unrealistic returns.
Legitimate assumption. The right to assume that suppliers are legally entitled to sell the goods and that the goods comply with relevant laws. Suppliers hold the responsibility to ensure lawful sales to consumers.
Auction policies. Clear auction conduct, announcing each sale separately, and informing buyers of lower prices.

Product substitutions

Consumers should expect suppliers to view deferrals, waivers, and substitutions as modifications to existing agreements, not as opportunities to create new agreements.
Consumers have the right to substitute goods or products and are entitled to the same protections under the CPA for these substituted goods, from the date of delivery.
Suppliers are required to deliver to consumers, amended sales agreements or records, describing the substituted goods, but without making other changes to the original agreements or records.

Protection against over-selling/over-booking. Over-selling refers to the practice of accepting payments from customers without a commitment to deliver the goods or services. In case of non-fulfilment, customers can claim refunds, potentially with interest.

Q9: What rights safeguard consumers regarding just, fair, and reasonable terms and conditions?

Consumers hold rights ensuring fair, just and reasonable terms:

Protection from unfair terms. Shielding consumers from unfair terms and waiver of rights that are unfair, unjust or unreasonable such as:
- That are contrary to the CPA.
- Mislead or deceive consumers.
- Subject the consumers to fraudulent conduct.
- Directly or indirectly deprive consumers of rights in terms of the CPA.
- Avoid suppliers’ obligations or duties in terms of the CPA.
- Limit or exempt suppliers of goods or services from liability for any loss, directly or indirectly attributable to the gross negligence of the suppliers or any persons acting for or controlled by the suppliers.
- Constitute an assumption of risk or liability by the consumers for a loss.
- Impose an obligation on consumers to pay for damages.
- Require the consumers to enter into supplementary agreements.
- Falsely express an acknowledgement by the consumers that before the agreement was made, no representations or warranties were made in connection with the agreement by the supplier or a person on behalf of the supplier.
- Require the consumers to forfeit any money to the supplier.
Risk notification. Pre-signing disclosure of potentially risky clauses, eg limit the consumer’s rights excessively, waive consumer rights, impose unfair cancellation fees, or contain ambiguous language that is harmful to consumer rights.
Free contract copies. Access to cost breakdowns and contract copies, even unsigned ones (eg if the transaction was concluded via telephone).
Refusal of unjust terms. Rights to deny misleading or fraudulent terms restricting or precluding consumer rights.
Court access. The ability of consumers to address unsatisfactory decisions of the National Consumer Tribunal investigating unconscionable, unjust or unfair conduct by suppliers to an appropriate court.

Q10: What rights protect consumer value, quality, and safety?

Consumers have the right to expect quality goods and services, are of fair value and safe to use:

Safe goods. Consumers are entitled to expect goods to be:
- Safe to use (as per instructions on use and not due to misuse or abuse by the consumer).
- Good quality and fit for purpose.
- Good working condition and durable for a period.
- Free of defects.
- Meet the standards in terms of the Standards Act of 1993.
Quality warranty. Suppliers provide an implied warranty in respect of Safe Goods as described above, ie safety, good quality, and durability.
- Consumers are entitled to return goods to suppliers without penalty and at supplier’s risk within six months of delivery should goods be inferior, unsafe or defective.
- Suppliers are obligated to refund, repair or replace the defective, unsafe or defective goods.
Repair guarantees. In respect of repairs to goods or parts, the supplier must:
- Warrant that the repair is new, or reconditioned parts are safe and usable.
- Qualified labour personnel performed the repair.
- If repaired goods are still defective or unsafe, consumers are entitled within three months of such repair to claim replacement of the goods or refund.
Service quality. In respect of services performed by suppliers, they must ensure:
- Timely performance and completion of services.
- Timely notification of unavoidable delays.
- Expectation of high-quality service performance.
- Any goods provided in terms of the service meet the Safe Goods standards mentioned above, remedy of any defects in the service performed (and associated goods) or refund consumers a reasonable amount of price paid for any sub-standard services.
Safety warnings. Suppliers must inform consumers of any uncommon risks, dangers not typically known, and potential serious harm or death hazards. Additionally, suppliers must label hazardous goods, offer safety instructions, and ensure adequate handling information for consumers.
Safe disposal. Suppliers are responsible for safely disposing of any hazardous waste.
Product recalls. Procedures for unsafe product recalls ensuring consumer protection.
Damage claims. Suppliers remain liable for injuries/death caused by:
- Supply of unsafe or defective goods.
- Product failure, defect or hazards in any goods.
- Inadequate instructions/warnings identifying hazards from use of the goods irrespective of negligence on the part of the supplier (instructions/warnings must identify and warn consumers of the risks).

Q11: How does supplier accountability pertain to consumer rights?

Ensuring supplier accountability are essential consumer rights:

Layby agreements. Reliable entry rights into layby pacts, with provisions for non-delivery.
Prepaid services. Responsible handling of prepayment funds to stipulate like no self-usage and loss accountability.

Q12: Are second-hand goods protected by the CPA?

Yes, second-hand goods are within CPA's scope. Goods cover tangible items, encompassing second-hand goods, ensuring quality, functionality, and defect-free items irrespective of newness.

Q13: What does the CPA require of suppliers in terms of return of goods?

There is no general right of return except under certain circumstances.

Under the CPA, there is no general right of return for goods. This means:

A consumer cannot return an item simply due to a change of heart or regret after purchase.
While some retailers allow returns as a courtesy, this is not a legal obligation.
The CPA specifies limited circumstances in which goods can be returned, ensuring consumer rights are balanced with supplier obligations.
When can goods be returned under the CPA? There are four specific instances under the CPA when consumers are entitled to return goods:
- Cooling-off period for direct marketing
  - Goods purchased through direct marketing can be returned within 5 days of receipt.
  - Consumers can:
    - Return the goods.
    - Cancel the contract without penalty.
    - Receive a full refund.
    - The consumer must cover the return shipping costs.
- Goods not seen before purchase
  - If goods were not inspected prior to purchase, consumers are entitled to inspect them upon delivery. If:
  - The goods do not meet reasonable expectations of type or quality.
  - Custom-ordered goods do not match agreed specifications.
  - Consumers can:
    - Refuse delivery.
    - Cancel the contract without penalty.
    - Receive a full refund.
    - The supplier is responsible for return costs.
- Goods unsuitable for a particular purpose
  - If goods are purchased based on a supplier's assurance that they are suitable for a specific purpose and they fail to meet that purpose:
  - Consumers have 10 days to return the goods and cancel the contract without penalty.
  - The supplier must cover return costs.

Exceptions

Returns are not allowed if:
- Regulations prohibit the return of specific goods (eg for health or safety reasons).
- The goods have been altered, combined, or disassembled after delivery.

Implied warranty of quality. As mentioned previously, there is an implied warranty of quality for goods in respect of fitness for intended purpose, free of defect and durability for a reasonable period of time.
- If goods fail to meet these standards, within 6 months, the consumer can:
  - Return the goods.
  - Request a replacement.
  - Request repairs.
- Important note. The implied warranty cannot be waived or excluded by a general voetstoots clause (which was previously permitted under the common law) unless specific defects were disclosed and accepted by the consumer.

Refund policies

When entitled to a refund under the CPA, consumers have the right to choose how they receive it:

Cash, not just in-store credits or vouchers.
Under Section 56, the consumer can decide whether to receive a refund, replacement, or repair.

Online purchases and the ECT Act

For online transactions, the Electronic Communications and Transactions Act (ECT Act) applies:

Consumers have a 7-day cooling-off period after delivery.
Goods can be returned for any reason without penalty, but the consumer must cover return costs.

The ECT Act overrides certain CPA provisions, so suppliers must ensure their online returns’ policies comply with these regulations.

Tips for suppliers

Ensure your returns and refund policies comply with the CPA and, if applicable, the ECT Act.
A clear, fair returns policy, combined with excellent customer service, can prevent disputes and complaints to the National Consumer Commissioner.

Q14: What consumer rights, if any, do juristic persons have?

The focus of the CPA remains primarily on shielding individual consumers. As mentioned previously juristic persons, ie companies, etc with turnovers above R2m are exempt from the protections under the CPA. The turnover basis is based at the time of the relevant transaction. Any juristic person with a turnover less than R2m therefore has all the protections under the CPA. Thus companies with turnover above R2m are not entitled to rights such as:

Protection against unfair contract terms.
The right to fair, good quality goods or services.
Recourse through the National Consumer Tribunal.

Exceptions Under the CPA

Even if a juristic person exceeds the R2m turnover threshold, certain provisions of the CPA may still apply in a broader sense:

Supplier obligations. Suppliers must ensure truthful marketing, avoid unconscionable conduct, and adhere to basic quality standards for all customers, including large juristic persons.
Product liability. If a product is defective, anyone harmed (including larger juristic persons) may have recourse under Section 61 of the CPA, which governs liability for harm caused by unsafe or defective goods.
Rights under general law. In addition, companies above R2m turnover still have remedies under:
Contract law. Rights to enforce fair and agreed-upon terms in contracts.
Common law remedies. Protections against fraud, misrepresentation, and breach of contract.
Competition law. Protections against anti-competitive practices or abuse of dominance.
Voluntary application. In some cases, parties may contractually agree to apply certain CPA protections even if one party is not a qualifying consumer.

Q15: How do consumers register complaints with the National Consumer Commission?

File complaints with the National Consumer Commission by form submission on their site at www.thencc.gov.za or via (012) 428 7000. Email support is available at complaints@thencc.org.za. The National Consumer Tribunal, established under the National Credit Act of 2005 (NCA) is also responsible for adjudication of violations of both NCA and the CPA.

Other useful links:

DTI Customer Contact Centre: 0861 843 384

DTI Office of Consumer Protection: (012) 394 1436 / 1558 /1076

DTI e-mail: contactus@thedti.gov.za

DTI website: www.thedti.gov.za

National Consumer Tribunal: (012) 663 5615

NCT e-mail: registry@thenct.org.za

NCT website: www.thenct.org.za

Q16: What is relationship between the CPA and the National Credit Act (NCA)?

The CPA and the NCA are both designed to protect consumers in South Africa. While they share some overlap, they have distinct focuses:

CPA

Broader scope. The CPA covers a wide range of consumer transactions, including the sale of goods, provision of services, marketing practices, and consumer rights in general.
Key areas of focus:
- Fair business practices. Prohibits misleading, deceptive, and unfair business practices.
- Product safety and quality. Ensures goods and services are safe and fit for purpose.
- Consumer information. Requires businesses to provide clear and accurate information about their products and services.
- Consumer rights. Protects consumers' rights to fair value, choice, privacy, and redress.

NCA

Specific focus on credit transactions. Primarily deals with credit agreements, including loans, mortgages, and credit cards.
Key areas of focus:
- Responsible lending. Ensures credit providers act responsibly and consider a consumer's ability to repay.
- Affordability assessments. Requires credit providers to assess a consumer's ability to repay before granting credit.
- Disclosure requirements. Mandates clear and comprehensive disclosure of credit terms and conditions.
- Debt counselling and debt review. Provides mechanisms for consumers to manage debt and avoid over-indebtedness.

Interplay between the CPA and NCA

Overlap. Both Acts cover some common ground, particularly in areas like fair business practices, disclosure requirements, and protecting consumers from unfair treatment.
Complementary. The CPA and NCA are intended to work together to provide comprehensive protection for consumers in South Africa.
Hierarchy. In cases of conflict between the two Acts, the provision that provides greater protection to the consumer will generally prevail.

In essence, the CPA provides a broad framework for consumer protection, while the NCA focuses specifically on credit transactions. The two Acts complement each other to create a robust legal framework that safeguards the rights and interests of consumers in South Africa.

The information provided is for information purposes and does not constitute legal advice. Contact a lawyer should you require assistance. Legal Dynamix is not a law firm and does not provide legal advice on the subject matter contained herein.

A summary of the Consumer Protection Act

Quick links

Introduction

Q1: What is the aim of the Consumer Protection Act (CPA) in South Africa?