Does the Consumer Protection Act 68 of 2008 have the effect of reviving the abolished exceptio doli generalis?

Abstract

The question to which this study will attempt to find a satisfactory answer, is whether the new Consumer Protection Act 68 of 2008 (CPA) has revived the abolished exceptio doli generalis. The exceptio doli was introduced in about 66 BC by the praetor Gaius Aquilius Gallus. An exceptio was a legal defence to a claim. The exceptio doli required the judge to take account of the fraud of which the plaintiff had been guilty of at the time of concluding the transaction, or of the dolus of which the plaintiff was guilty in actually instituting the action. It appears that the provisions of sections 40, 41 and 48 of the CPA reaffirm the existence of the exceptio doli generalis in the South African law of contract, since these provisions provide the same function and outcome that defence did. The section that speaks to the heart of the exceptio doli generalis, is section 40(1) which provides that a supplier or an agent of the supplier must not use physical force, coercion, undue influence, pressure, duress or harassment, unfair tactics or any other similar conduct, in connection with the supply of services to a consumer and also in the negotiation, conclusion, execution or enforcement of an agreement. Section 52 of the Act deals with contraventions of sections 40, 41 and 48 of the Act. It grants the ordinary courts the power to declare agreements, in whole or in part, unfair or unconscionable. That only the ordinary courts would have jurisdiction in respect of unfair contract terms, is not stated unequivocally, but is implicit in the absence of any reference to the NCT or provincial consumer courts in section 52. It is a well-known fact that the costs, risks and effort of court action are just too high for ordinary consumers, including middle class consumers. For this reason it is unlikely that this legislation in its current form will have a real impact on the eradication of unfair contract enforcement. What is suggested, is an amendment to section 52 in order to bestow jurisdiction on the NCT and the consumer courts as well may also make any further order it considers just and As an alternative to the amendment of section 52, it is submitted that the legislature should create a statutory rule, because it seems that the exceptio doli generalis as well as the CPA are not up to the task. What is suggested, is legislation that deals specifically and exclusively with unreasonableness, unconscionableness and oppressiveness in contracts or terms of contract. The enactment of legislation dealing specifically with the problems previously dealt with by applying the exceptio doli generalis, will ensure that legal certainty is created as to the availability of a remedy in circumstances where the enforcement of a contract is unfair. This is in accordance with the proposal made by the South African Law Commission’s Project 47.