Unfair commercial practices in terms of the Consumer Protection Act 68 of 2008

Abstract

The Consumer Protection Act is a comprehensive piece of legislation which aims to regulate the consumer market widely. The South African situation, in comparison with the European Union for example, reveals that the general purpose and principle of the European Unfair Commercial Practice Directive (hereinafter the UCPD) is to create a general statutory duty to trade fairly in consumer transactions. The UCPD aims to eliminate distortions in the international market caused by different laws of unfair trading. The enactment of the CPA is a clear indicator that the legislator has taken note of international trends in the field of consumer protection and has fulfilled the promise to bring South African Law in line with international consumer law and practice. The aim in the dissertation is critically to analyse the provisions of the CPA in relation to unfair commercial practices. The core focus lies with the critical analyses of sections 40, 41 of the CPA in this regard. The dissertation attempts to explain the rationale for a comparison with the UCPD and how this comparison assists in addressing issues that the critical analysis of the unfair commercial practice provisions in the CPA elucidate. It is hoped that the comparison will bring to light shortfalls and inconsistencies, as well as consistencies, between these pieces of legislation (CPA and UCPD). The law needs to promote and to protect the economic interest of consumers, to improve access to information that is necessary for the consumer to be able to make an informed choice, to protect consumers from any hazard which is a threat to their well-being and safety, to develop effective means of redress for consumers, to promote and provide consumer education and to promote consumer participation. Focus will be on the conduct of the supplier and is limited to a discussion of sections 40 and 41. With regards to section 40 the focus is on unconscionable conduct. An extensive explanation of unfair commercial practices in terms of the UCPD will be provided, and includes a broad overview of the relevant articles read together with the relevant recitals. An overview of definitions, concepts and case law will is presented in order to offer a clear view of unfair commercial practices in terms of the said directive. The research aims will be achieved by examining national and international legislation, relevant case law (where applicable and possible) from South Africa, The European Court of Justice (ECJ) and member states. The result will be that the consumer has greater confidence in the protection the law provides and which offers a similar level of redress to consumers so that they are not discouraged that the law has only face value. Instead, consumers will be encouraged to defend their rights and will be educated as to what they are entitled.