What consumer protection measures were there before the CPA?
1. Legislation
- Unfair Business Practices Act
o Enabling rather than proscribing à did not prohibit but enabled the
Committee to investigate.
o Unfair business practices à criminal act but SARS was too
overwhelmed (Pepsi-Cola).
- Other legi à only applied to certain agreements.
*** Main problem à legi is scattered and inconsistent ***
2. Industry self-regulation
- Disadvantages
o Many companies don’t know Code applies.
o Voluntary membership à difficult to enforce code.
3. Common law
- Consumers might not know they have these remedies
- Can be contractually excluded.
- Not good for large corps
o Defective consent à pressuring to quickly enter agreements.
o Deception of consumers à false statements about the product.
o Unfair contract terms à contract in favor of selling (condemning this
must be done sparingly: Napier).
o Defective goods.
,What are the theories?
1. Classic model
- Freedom-orientated
o Freedom of contract à pacta sunt servanda.
2. Neoliberalism
- Consumer protection à equal bargaining power.
What theories do courts use?
1. Before CPA
- Classic model à good faith is not self-standing rule
o Just underlying value given expression by existing rules.
2. After CPA
- Neoliberalism à Good faith and dignity is important in consumer contracts.
What is procedural and substantive fairness?
1. Procedural fairness
- Circumstances around conclusion of contract are fair
o Transparency and balancing interests.
- CPA à prohibit against deception of consumers.
2. Substantive fairness
- Person-orientated approach à advancing social and economic justice
- CPA à fair T&C’s.
, When was the CPA enacted?
1. Early effective date 24 APRIL 2010
- Schedule 2 in force à agreements before CPA existed are not subject to CPA
o Unless
(1) Agreement would have been subject to CPA had it existed.
(2) Agreement still in force 2yrs after CPA’s gen effective date.
2. General effective date 31 MARCH 2021
- Most sections but also S61 in force à transactions that happened on / after
gen effective date
o Consumer can hold supplier liable for defective goods.
What is the purpose of the CPA?
1. Advance social and economic welfare of consumers
- Legal framework.
- Rebalance bargaining power
- Ensure vulnerable consumers are protected
o Low income.
o Remote areas.
o Minors and seniors.
o Can’t read / comprehend products.
Who must enforce the CPA?
1. The NCC
- Promote the purpose of the CPA.
1. Legislation
- Unfair Business Practices Act
o Enabling rather than proscribing à did not prohibit but enabled the
Committee to investigate.
o Unfair business practices à criminal act but SARS was too
overwhelmed (Pepsi-Cola).
- Other legi à only applied to certain agreements.
*** Main problem à legi is scattered and inconsistent ***
2. Industry self-regulation
- Disadvantages
o Many companies don’t know Code applies.
o Voluntary membership à difficult to enforce code.
3. Common law
- Consumers might not know they have these remedies
- Can be contractually excluded.
- Not good for large corps
o Defective consent à pressuring to quickly enter agreements.
o Deception of consumers à false statements about the product.
o Unfair contract terms à contract in favor of selling (condemning this
must be done sparingly: Napier).
o Defective goods.
,What are the theories?
1. Classic model
- Freedom-orientated
o Freedom of contract à pacta sunt servanda.
2. Neoliberalism
- Consumer protection à equal bargaining power.
What theories do courts use?
1. Before CPA
- Classic model à good faith is not self-standing rule
o Just underlying value given expression by existing rules.
2. After CPA
- Neoliberalism à Good faith and dignity is important in consumer contracts.
What is procedural and substantive fairness?
1. Procedural fairness
- Circumstances around conclusion of contract are fair
o Transparency and balancing interests.
- CPA à prohibit against deception of consumers.
2. Substantive fairness
- Person-orientated approach à advancing social and economic justice
- CPA à fair T&C’s.
, When was the CPA enacted?
1. Early effective date 24 APRIL 2010
- Schedule 2 in force à agreements before CPA existed are not subject to CPA
o Unless
(1) Agreement would have been subject to CPA had it existed.
(2) Agreement still in force 2yrs after CPA’s gen effective date.
2. General effective date 31 MARCH 2021
- Most sections but also S61 in force à transactions that happened on / after
gen effective date
o Consumer can hold supplier liable for defective goods.
What is the purpose of the CPA?
1. Advance social and economic welfare of consumers
- Legal framework.
- Rebalance bargaining power
- Ensure vulnerable consumers are protected
o Low income.
o Remote areas.
o Minors and seniors.
o Can’t read / comprehend products.
Who must enforce the CPA?
1. The NCC
- Promote the purpose of the CPA.
