Does the Consumer Protection Act 68 of 2008 provide adequate protection to the consumer with regard to unfair or unconscionable commercial practices?

Abstract

This dissertation aims at addressing the question of whether the CPA provides adequate protection to the consumer with regards to unfair or “unconscionable” commercial practices. In terms of unfair commercial practices, this dissertation highlights that protection against such practices is provided through the fundamental right to fair and responsible marketing, which is regulated by Part E of the CPA. Furthermore, these sections enable the consumer to hold the supplier accountable to a general marketing standard. This protection is furthermore aided by the interaction between sections 29 and 41 of the CPA, in that a producer, importer, distributer, retailer or service provider is prohibited from marketing any goods or services, as mentioned in section 41 of the CPA, in a manner that is reasonably likely to imply a false or misleading representation. In terms of “unconscionable” commercial practices and representations, this dissertation highlights that protection against such practices, is provided for by sections 40 and 41 of the CPA. In terms of these sections, the CPA provides a wide ambit of application with regards to “unconscionable” conduct on behalf of the supplier. Due to such, numerous problems have arisen such as: The effectiveness of the defence of “unconscionability”. In conclusion, the aims of this dissertation are to: Firstly, analyse sections 29, 40 and 41 of the CPA, in order to determine the scope of their protection towards consumers and how they interact with one another; secondly, to interpret the CPA in order to highlight any remedies available to the consumer; and lastly, to highlight what challenges are encountered, when applying the CPA to unfair or “unconscionable” commercial practices.