April fool’s day : does the CPA reintroduce the exceptio doligeneralis?

Abstract

Modern law of contract in South-Africa can be seen as a dynamic field of law. It encompasses key principles such as freedom of contract, autonomy, good faith and public policy. These principles are seen as important concepts that underlie the substantive law of contract. The Consumer Protection Act, introduced in 2008 and operational since 31 March 2011, has contributed to this dynamic field of law. Unfortunately the uncertainties regarding the application of widely articulated definitions associated with the act remain a concern. Many legal academics have tried to alleviate the possible difficulties posed by the application of the CPA by means of constructive criticism, in-depth analysis of practical aspects and submissions to the legislator during the past three years. The exceptio doligeneralis has offered similar protection for consumers in circumstances where it seemed as if no remedy would provide a similar equitable outcome. This defence was available when a plaintiff wanted to enforce legal action in circumstances that are unconscionable. The defendant could raise these circumstances as a defence to the action of enforcement. The potential difficulties associated with the CPA are not entirely similar to the uncertainties created by the application of the exceptio doli in the past. The widely articulated definitions present a bigger problem of uncertainty. This may in certain circumstances be to the detriment of the consumer. Consumers are afforded rights in terms of the CPA but it does not necessarily mean that the enforcement of these afforded rights is in place. There are technical difficulties regarding the interpretation of terms such as “agreement”, “unfair tactics” or “pressure” to name but a few. There are still no guidelines provided to assist consumer tribunals to adhere to the purpose of the act in a fair and organised manner. The question that arises is whether these afforded rights seem better than what it actually is; leaving us to believe that the common law regarding consumer protection can be codified. This study is an attempt to demonstrate that the CPA might not have the desired outcome as initially anticipated. The CPA unfortunately, in my opinion, represents an April fool’s day. Sections 40, 48 and 51 of the CPA will perhaps have a similar effect than the exceptio doligeneralis. These sections offer protection to a consumer if there are unfair, unreasonable or unjust circumstances. The widely articulated sections create an inclusive protecting mechanism rather than excluding. Any contract, term or clause thereof will be interpreted in such a way to benefit a consumer. It is submitted that it will not be possible to attach precise meanings to concepts such as good faith, public interest or fairness. There will always be a different understanding in a particular language and within a variation of context. The main goal to be achieved, the rules of the law of contract should reflect attempts to achieve a balance between fundamental principles such as fairness and good faith, and economic policies such as economic efficiency and the facilitation of honest market participation.