NATIONAL CONSUMER COMMISSION &THE CONSUMER PROTECTION ACT 68 of 2008
NATIONAL CONSUMER COMMISSION
Public Entity established in terms of the Consumer Protection Act No. 68 of 2008 (CPA);
Commission responsible for enforcement of the CPA, national jurisdiction;
Commission Operational since 01 April 2011
NCC FUNCTIONAL AREAS
Advocacy Education and Awareness (Consumer/ Business Education ; Stakeholder Relationship Management; Positioning the NCC as South Africa’s consumer voice)
Investigations ( reactive or pro-active)
Complaints Handling (Call centre; receipt, negotiated settlement ; conciliation ; compliance notices)
Legal ( representing the NCC at Tribunal)
Research (for policy improvement)
Investigations ( reactive or pro-active)
Complaints Handling (Call centre; receipt, negotiated settlement ; conciliation ; compliance notices)
Legal ( representing the NCC at Tribunal)
Research (for policy improvement)
CONSUMER LAW REVIEW
Outdated; no substantial review since 1989
Weak enforcement mechanisms and structures;
Relied on criminal sanctions
Fragmented regulation across sectors;
Global and domestic environment has changed significantly – Opening up of markets and movement of people, goods and services across borders;
Weak enforcement mechanisms and structures;
Relied on criminal sanctions
Fragmented regulation across sectors;
Global and domestic environment has changed significantly – Opening up of markets and movement of people, goods and services across borders;
RESEARCH CONDUCTED
85% of South African consumers, especially rural consumers, are not aware of their rights and 75% indicated that the courts were inaccessible;
Increasing incidents of misleading and bait advertising, on honoring of guarantees, abuse of information, non disclosure, unfair contract terms
42% of consumers who complained were refused assistance (65% in rural areas) and only 21% are aware of the various institutions that assist consumers (16% for provincial courts);
Consumers prefer better disclosure, simpler administrative remedies in
the form replacements and refunds and accessible dispute resolution.
An average of 60% of consumers do not complain when they experience problems because they do not know where to go or lack confidence in
the system of consumer redress and enforcement.
Increasing incidents of misleading and bait advertising, on honoring of guarantees, abuse of information, non disclosure, unfair contract terms
42% of consumers who complained were refused assistance (65% in rural areas) and only 21% are aware of the various institutions that assist consumers (16% for provincial courts);
Consumers prefer better disclosure, simpler administrative remedies in
the form replacements and refunds and accessible dispute resolution.
An average of 60% of consumers do not complain when they experience problems because they do not know where to go or lack confidence in
the system of consumer redress and enforcement.
NEW CONSUMER REGIME
The Consumer Protection Act No. 68 of 2008; (CPA) came into effect on 01 April 2011;
Overarching piece of legislation;
Prescriptive in nature;
9 UN consumer rights given legislative backing;
Mandatory for business to uphold;
Establishes the National Consumer Commission
Overarching piece of legislation;
Prescriptive in nature;
9 UN consumer rights given legislative backing;
Mandatory for business to uphold;
Establishes the National Consumer Commission
CHAPTER 1 Part A
The Act expands on the conventional definition of “consumer” by -
– Including users, beneficiaries or recipients of goods and services so as to extend redress to third parties especially with regards to product liability; and
– Including franchisees who currently have very limited protection through a voluntary industry code of conduct.
– Small business with a turnover up to R3m
Definition of supplier not limited to retailers only but to any public
or private entity (Government institutions and all state organs)
that promotes or supplies goods and services to consumers.
– Including users, beneficiaries or recipients of goods and services so as to extend redress to third parties especially with regards to product liability; and
– Including franchisees who currently have very limited protection through a voluntary industry code of conduct.
– Small business with a turnover up to R3m
Definition of supplier not limited to retailers only but to any public
or private entity (Government institutions and all state organs)
that promotes or supplies goods and services to consumers.
PROTECTION OF CONSUMER RIGHTS
Who can lodge a complaint?
An individual acting on his or her own behalf
An authorized person acting on behalf of another who cannot act for him/herself;
Person acting as a member or in the interest of affected group or class;
Person acting in the public interest with leave of the Tribunal or court
Association acting on the interests of its members.
An individual acting on his or her own behalf
An authorized person acting on behalf of another who cannot act for him/herself;
Person acting as a member or in the interest of affected group or class;
Person acting in the public interest with leave of the Tribunal or court
Association acting on the interests of its members.
CONSUMER RIGHTS
Part A: Right of equality in the consumer market:
• Prohibit any form of unfair discrimination in line with the Equality Act and the
• Constitution. The Equality Court has jurisdiction to adjudicate cases on referral from the Consumer Commission.
Part B: Right to privacy:
• Limits the use of consumer’s personal information
• Provides for “Opt out” Register option for unsolicited marketing communication.
• Consumers can also register a pre emptive block on a register to be
operated by government or industry.
Part C: Right to Choose
• Prohibits automatic renewal of fixed term agreements
• Requires quotes for maintenance and repair services
• Provides for right to return goods and receive refunds within fifteen days.
• Prohibit any form of unfair discrimination in line with the Equality Act and the
• Constitution. The Equality Court has jurisdiction to adjudicate cases on referral from the Consumer Commission.
Part B: Right to privacy:
• Limits the use of consumer’s personal information
• Provides for “Opt out” Register option for unsolicited marketing communication.
• Consumers can also register a pre emptive block on a register to be
operated by government or industry.
Part C: Right to Choose
• Prohibits automatic renewal of fixed term agreements
• Requires quotes for maintenance and repair services
• Provides for right to return goods and receive refunds within fifteen days.
CONSUMER RIGHTS
Disclosure and information:
• Give consumers the right to information in plain and understandable language
• Require compulsory display of prices and provision of transaction records
• Requiring product labels and trade descriptions not to be misleading;
Fair and responsible advertising, marketing and promotion:
• Prohibits unfair marketing practices (bait, referral, negative option.)
• Regulates promotional competitions
• Sets standards for customer loyalty programs
Fair and honest dealings
• Prohibits false, misleading and deceptive representations;
• Prohibits overselling and overbooking;
• Prohibits unconscionable conduct.
Right to Fair, just and reasonable terms and conditions
• Prohibits unfair, unreasonable or unjust contract terms
• Outlaws unilateral changes to contracts
• Outlaws certain types of agreements (minors, negative option, etc)
• Outlaws any form of contracting out
Right to Fair Value, Good Quality and safety:
Facilitates access to quality service, safe goods and services and redress by:
• Providing statutory warranties for safety and quality
• Introducing a general product safety monitoring and recall regime
• Extending strict liability to retailers for illness, injury, damage to property and death as a result of defective goods or improper labeling.
Supplier Accountability
Fiduciary duty: a supplier in possession of any prepayment, deposit,
membership fee or other money belonging to the consumer, the supplier:
• Must not treat property as his; liable to the consumer for any loss suffered
• Exercise care, diligence and skill
Further, the duty of care also applies to the executor, administrator or liquidator of the supplier
If supplier fails to deliver any goods, the supplier must at the option of the consumer:
• Supply equivalent or more superior products ;or
• Refund (1) money paid plus interest or (2) double the amount paid
If consumer terminates the supplier may charge termination fee and refund balance to consumer.
• No fee to be charged if consumer sick/dead or when the supplier did 1n2ot forewarn the consumer about termination/penalty fee.
• Give consumers the right to information in plain and understandable language
• Require compulsory display of prices and provision of transaction records
• Requiring product labels and trade descriptions not to be misleading;
Fair and responsible advertising, marketing and promotion:
• Prohibits unfair marketing practices (bait, referral, negative option.)
• Regulates promotional competitions
• Sets standards for customer loyalty programs
Fair and honest dealings
• Prohibits false, misleading and deceptive representations;
• Prohibits overselling and overbooking;
• Prohibits unconscionable conduct.
Right to Fair, just and reasonable terms and conditions
• Prohibits unfair, unreasonable or unjust contract terms
• Outlaws unilateral changes to contracts
• Outlaws certain types of agreements (minors, negative option, etc)
• Outlaws any form of contracting out
Right to Fair Value, Good Quality and safety:
Facilitates access to quality service, safe goods and services and redress by:
• Providing statutory warranties for safety and quality
• Introducing a general product safety monitoring and recall regime
• Extending strict liability to retailers for illness, injury, damage to property and death as a result of defective goods or improper labeling.
Supplier Accountability
Fiduciary duty: a supplier in possession of any prepayment, deposit,
membership fee or other money belonging to the consumer, the supplier:
• Must not treat property as his; liable to the consumer for any loss suffered
• Exercise care, diligence and skill
Further, the duty of care also applies to the executor, administrator or liquidator of the supplier
If supplier fails to deliver any goods, the supplier must at the option of the consumer:
• Supply equivalent or more superior products ;or
• Refund (1) money paid plus interest or (2) double the amount paid
If consumer terminates the supplier may charge termination fee and refund balance to consumer.
• No fee to be charged if consumer sick/dead or when the supplier did 1n2ot forewarn the consumer about termination/penalty fee.
Role of the NCC
The Commission has the responsibility to enforce the Act by –
• Initiating complaints on systemic issues affecting consumer generally;
• Investigating complaints referred by consumers, or any person entitled to do so by the Act;
• Issuing compliance notices to entities investigated;
• Negotiate settlement of complaints where suppliers wants to settle the matter without referral to the Tribunal;
• Facilitating conclusion of consent orders;
• Referring matters to the Tribunal for adjudication;
• Refer matters to the Equality Court.
• Accreditation of Consumer Groups, Industry Codes of conduct and Ombud Schemes
• Initiating complaints on systemic issues affecting consumer generally;
• Investigating complaints referred by consumers, or any person entitled to do so by the Act;
• Issuing compliance notices to entities investigated;
• Negotiate settlement of complaints where suppliers wants to settle the matter without referral to the Tribunal;
• Facilitating conclusion of consent orders;
• Referring matters to the Tribunal for adjudication;
• Refer matters to the Equality Court.
• Accreditation of Consumer Groups, Industry Codes of conduct and Ombud Schemes
Role of the Provinces
In terms of section 84 of the Act Provinces may do the following in respect of matters in their province -
• Issue compliance notices to any person carrying on exclusive business in the province
• Facilitate mediation/conciliation
• Refer dispute to consumer court if there is one in that province
• Request the Commission to initiate a complaint.
• Issue compliance notices to any person carrying on exclusive business in the province
• Facilitate mediation/conciliation
• Refer dispute to consumer court if there is one in that province
• Request the Commission to initiate a complaint.
National Consumer Commission Contact Center
No: 012 761 3000
Email: [email protected]
Source: Bulelwa Hewu on behalf of NCC