1 / 26

Consumer Protection in South Africa: Redress and Rights

Gain insight into consumer protection in South Africa and explore the provisions of the Consumer Protection Act and the National Credit Act in terms of redress for consumers.

klondon
Download Presentation

Consumer Protection in South Africa: Redress and Rights

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Sixth Annual African Consumer Protection Dialogue Conference - Malawi Topic: Consumer Redress Date: 8 – 10 September 2014 Author: John Simpson – NCT Tribunal Member

  2. Disclaimer This material has been developed to provide insight into consumer protection in South Africa and the provisions of the some of the South African Consumer Protection Laws. It is not intended to be an exhaustive authority and a view taken by the National Consumer Commission, National Credit Regulator or the National Consumer Tribunal, in respect of the provisions of the legislation in respect of specific matters before the National Consumer Commission, National Credit Regulator or the National Consumer Tribunal,.

  3. Scope of the presentation Part A - Overview of consumer protection in South Africa Part B - Selected sections from the Consumer Protection Act 68 of 2008 (CPA) Part C - Role of the National Consumer Tribunal (NCT) Part D - Selected NCT cases - redress in terms of the CPA Part E - Redress by the NCT in terms of the National Credit Act 34 of 2005 (NCA)

  4. PART A: OVERVIEW OF CONSUMER PROTECTION IN SOUTH AFRICA

  5. Background IMPERATIVES FOR CONSUMER PROTECTION LAWS IN SA • Freedom of contract was mainstay of SA law – “Caveat subscriptor” – abuses were rife • Lack of coherent system of consumer protection • Lack of access to redress was endemic • Constitutional imperatives of SA constitution • Need to align to global imperatives • Internationally recognised consumer rights • UN Guidelines on consumer protection

  6. BACKGROUND (Cont.) Lack of access to redress endemic • Not maximized in coherent and cohesive way • Reliance of court system • Enforcement left to consumers

  7. BACKGROUND (Cont.) The South African Constitution • Bill of rights - Human rights and consumer rights • Access to justice - Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum • Administrative justice - Lawful, reasonable and procedurally fair, written reasons, review by court or tribunal

  8. Delivery Model I

  9. Fundamental consumer rights in CPA • Equality in the consumer market • Privacy • Choose • Disclosure and Information • Fair and responsible marketing • Fair and honest dealing • Fair, just and reasonable terms and conditions • Fair value, good quality and safety • Supplier’s accountability to consumers

  10. PART B: SELECTED SECTIONS FROM THE CPA & NCA PROVIDING REDRESS TO CONSUMERS

  11. National Credit Act Section 80 Credit provider must conduct an affordability assessment to determine whether the consumer can afford to repay the loan applied for. If the assessment is not done/the consumer did not understand the risks, costs, obligations/the credit agreement results in the consumer being over-indebted – then the agreement is regarded as reckless. Section 83 Tribunal can declare agreement reckless and set aside all the consumer’s obligations under the agreement or suspend the effect of the agreement. Section 128 Credit providers are required to sell repossessed goods as soon as reasonably practical and for the best price reasonably obtainable. The Tribunal can review such sales and order that an additional amount exceeding the net proceeds of the sale be paid to the consumer’s account. Section 150 (h) If the Tribunal finds that a credit provider engaged in prohibited conduct it can order the repayment to the consumer of any excess amounts charged with interest (fees/charges etc.)

  12. Consumer Protection Act Section 54 Consumer has right to demand quality service. If quality service not provided consumer can require supplier to remedy the defect in the quality of the service or the goods or require a refund of a portion of the price paid for the services. Section 55 Consumer has a right to safe good quality goods Section 56 If goods not safe and of good quality the consumer can return the goods within a period of 6 months and choose between a refund, repair or replacement. Section 57 Strict liability on suppliers, producers, importers, distributors or retailers for harm caused by unsafe goods, defects, lack of warnings on goods etc.

  13. PART C: ROLE OF NATIONAL CONSUMER TRIBUNAL (NCT)

  14. Establishment and Jurisdiction The National Consumer Tribunal was established in terms of section 26 of the National Credit Act (NCA), Act 34 of 2005. “Tribunal” in the Consumer Protection Act (CPA) refers to the National Consumer Tribunal established by the NCA. The Tribunal: • Has jurisdiction throughout South Africa; • Is a juristic person; • Is a Tribunal of record; and • Must exercise its functions in accordance with the NCA or • other applicable legislation – i.e. is a creature of statute • Tribunal order has the status of a high court order

  15. Conduct of hearings The Tribunal has to conduct its hearings in accordance with section 142 of the NCA • In an inquisitorial manner, • As expeditiously as possible, • As informally as possible; and • In accordance with the principles of natural justice.

  16. The Tribunal can inter alia make the following orders: Grant Interim relief; Declare conduct to be prohibited; Issue an interdict for prohibited conduct; Confirm Consent Orders; Condone non-compliance with its rules and procedures; Any other appropriate order required to give effect to a right as contemplated in the NCA or CPA; Impose administrative fines Orders of the Tribunal

  17. PART D : SELECTED NCT JUDGMENTS – REDRESS IN TERMS OF THE CPA

  18. 7142.2012/73(3)&75(1)(b)&(2) CPA Gerhard Roelof Coertze v RoceliaYoung Parties agreed that Ms Young would provide marketing related services R20 000.00 paid in advance. Relationship soured. Parties agreed that R17 000.00 would be repaid. Payment not made and the Applicants approached the National Consumer Commission (NCC). Payment still not made after conciliation meeting. Applicant approached NCT. The Tribunal found that the Applicant’s claim fell under the CPA and the Tribunal granted leave for the matter to be heard. The Tribunal found that the Respondent had not rendered a quality service as required by section 54(1) of the CPA. In terms of section 54(1) the Applicants could insist on the defective service being remedied or on a refund of a reasonable amount paid for the services. The Tribunal ordered the Respondent to pay R17 000 to the Applicant as agreed to between the parties previously. NCT judgements

  19. 10686/2013/75(1) P Byleveld v Execor Twelve Pty Ltd t/a Motor City and NCC Dispute regarding the defects in a motor vehicle purchased from the Respondent. Matter not resolved at the NCC and applicant approached tribunal. The Tribunal found that non-referral notice issued by NCC sufficiently compliant therefore Tribunal could consider the matter. The Tribunal granted leave and found that the Respondent had contravened section 55(1) of the CPA - not supplied goods which were safe and of good quality. Further contravened section 54(1) of the CPA - not provided quality services to the Applicant. The Tribunal ordered the Respondent to pay R33 000.00 to the Applicant. NCT judgements cont.

  20. Certificate issued to allow access to High Court for damages Section 164(3)(b) of NCA allows consumer to pursue claim for damages suffered - if certificate issued by Chairperson of NCT. In matter of NCR v Bornman and others (656.2010) the Tribunal found that the debt counsellor had engaged in prohibited conduct. Bornman appealed decision to the High court and subsequently the Supreme court of Appeal. Both appeals were dismissed. In matter of GV Van Tonder (12846.2014) the Chairperson issued a certificate allowing a consumer affected in the Bornman matter to pursue a claim for R39 725.00 in damages in the High court. The certificate is conclusive proof of its contents and is binding on a civil court. NCT judgements cont.

  21. PART E : REDRESS BY THE NCT IN TERMS OF THE NCA

  22. Orders and Redress • Tribunal can impose administrative penalties (section 151 of NCA) • Administrative penalties awarded to date in excess of R21m • Werlan matter R900 thousand fine – Credit provider overcharged very poor farm workers. • Numerous de-registrations of credit providers and debt counsellors for prohibited conduct • Refunds to consumers – Bornman, Barko, African Bank – (settlement agreement of R20m)

  23. NCT Judgments All judgments of the NCT are available on www.thenct.org.za www.saflii.org 23

  24. SAFLII website 24

  25. Our contact details • Office Hours: • Monday to Friday, excluding public holidays, from 09:00 to 16:00 • Postal Address: • Private Bag X 110 • CENTURION • 0046 • Physical Address: • The National Consumer Tribunal • Ground Floor, Building B, • 272 West Avenue • Lakefield Office Park • Centurion • Telephone:(012) 663 5615. • Fax:(012) 663 5693. • E-mail:Registry@thenct.org.za 25

  26. THANK YOU 26

More Related