Abstract:
The vast majority of jurisdictions (in particular, the European
Union and South Africa) conform to the United Nations
Guidelines for Consumer Protection, whereby governments are
encouraged to establish and maintain legal and administrative
measures to enable a consumer to obtain redress through both
formal and informal procedures, with particular regard to the
needs of vulnerable (low-income) consumers. The Guidelines
for Consumer Protection encourage the resolution of consumer
disputes in a manner that is not only fair and expeditious, but
also includes the establishment of voluntary mechanisms
and procedures. In this regard, the European Union and
South Africa have established redress and enforcement of
consumer protection mechanisms with a primary focus on
consensual consumer dispute resolution and, more specifically,
alternative dispute resolution. This does not, however,
diminish the important role and responsibility that courts
have in the effective enforcement of consumer protection law.
This contribution aims to establish the role of the courts in
this regard, not only for the advancement of consumer rights
and consumer protection law, but also taking into account
the ex officio role of the courts in relation to the effective
(or ineffective) alternative dispute resolution mechanisms
that are currently in place. The contribution analyses the
comparative positions in the European Union and South Africa.
In terms of the European Union position, focus is placed on the
application of the relevant consumer directives within Member
States, taking into account pre-existing national law and its
interpretation by national courts. The primary focus, in terms
of the South African position, is an analysis of the enforcement
institutions and redress provisions contained in the Consumer
Protection Act 68 of 2008, taking into account the interpretation
of these provisions by the relevant institutions and the courts. This contribution highlights problematic issues with the
current alternative dispute resolution mechanisms, resulting in
ineffective consumer protection and the ex officio role of the
courts to address these issues. It aims to confirm that the right
to access to the courts is a constitutionally entrenched right and
a balance between effective formal and informal enforcement
should be the aim.
