The Consumer Protection Act Made Easy

Author : Advocate N.J. Melville
Published by Book of Life Publications
ISBN: 978-0-620-44987-8
Reviewed by Fiona de Villiers

If you’re a regular newspaper reader, you’ll have noticed an increase in the number of reports related to the Consumer Protection Act, which came into effect on 1 April 2011. The sudden increase in media coverage (taking mainly the form of a flood of complaints to consumer journalists about defective products or sub-par service) is an indicator of how badly we have needed this new piece of legislation in South Africa.

Says Advocate N.J. Melville, author of The Consumer Protection Act Made Easy in his introduction, “The Act seeks to protect us from hazardous products and hidden risks and dangers. The scope for the suppliers of goods and services to escape liability for their wrongdoings by the use of contractual exemption clauses has been greatly reduced.”

Raising the bar

Melville was for many years the Banking Ombudsman, and was therefore superbly placed to put together this comprehensive guide to a complex, far-reaching act. He’s seen both sides – buyer and seller – of the coin, as it were, and issues in the introduction the following caveat, which can be directly applicable to those who manage and work in schools:

For those of you who are in business, or even those who operate non-profit organisations, the bar has certainly been raised. Not only may you now be held liable for any damages that customers may suffer as a result of you supplying defective and dangerous product, irrespective of whether or not you were at fault, but you will not always be able to hold consumers to contractual agreements that they have signed.

Those of you who use pro forma contract documents will undoubtedly have to revise them to ensure that they are fair, are written in plain language and contain no prohibited clauses. To ensure that you do not fall foul of the fairly harsh penalty provisions of the Act, you will need to make sure that you comply in all respects with the Act. You may have to re-price your goods and services to take into consideration the increased risks that you will have to bear.

This extract captures the tone and purpose of this excellent guide, which seeks to create educated consumers who will understand the Act and its implications, as well as their rights and responsibilities.

An uncertain future

That education begins with the first chapter which details the complicated and prolonged genesis of the Act, described as one of the best on the continent. Should you not wish to familiarise yourself with this legislative aspect, Melville has made it easy to pass over to another chapter without missing out on any of the important definitions, explanations or considerations. I found it extremely worthwhile to progress sequentially through the entire guide, which to my great relief, is not only written in plain language (a fundamental stipulation of the Act) but is all extremely interesting.

Chapter two deals with the scope of the Act, and chapter three with its impact on contracts pre-dating its arrival. In chapter four, readers can familiarise themselves with the legal framework of the Act, and the legislative environment of which it is a part. Melville makes the crucial point that both ordinary consumers and the legal mechanisms set up to interpret and uphold the Act – the Consumer Court, Tribunal and Commission – will most certainly have their work cut out for them. In many cases, issues brought before them will have no legal precedent. In still others, other pieces of legislation may ‘muddy the waters’. For example, if a supplier is called to answer to claims in court, Section 35 (3) (h) of the Constitution creates the right to remain silent, and not to testify during the proceedings.

Some may have to overhaul their business practices

Issues that could pertain to some education institutions and those with whom they transact appear in this book in abundance from chapter five onwards. The Act specifically prohibits, for example, unwanted directed marketing, and details a restriction on times when consumers can be contacted. There may be no conditional bundling of goods and services, nor may contracts require a consumer to waive any rights. Suppliers will also be subject to an exhaustive list of obligations.

Melville also spends time discussing discriminatory marketing. Not only will suppliers not be allowed to make unproven claims, but they are also, for example, prevented from targeting particular market segments for preferential attention, and from excluding a particular community from supply.

Differential treatment may, in many cases, result in legal action. Those who work in and run schools should pay particular attention to Melville’s discussions of exemption clauses and public liability insurance cover, the definition of ‘quality’ goods and services and the rights and obligations attached thereto, accountability, registration issues, and enforcement of the Act and dispute resolution. The matter of plain language and compliance with the Act are also essential reading.

Quite simply, concludes Melville, “The Act promotes informed consent. For consumers to make informed decisions, they need to have all the relevant information relating to a transaction.”

Don’t miss our feature on The Consumer Protection Act and schools in our forthcoming spring 2011 issue.

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Category: Book Reviews, Winter 2011

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