The international interpretation of unconscionable conduct and the unconscionability factors contained in section 40 of the Consumer Protection Act 68 of 2008

Abstract

This dissertation interprets the meaning and application of the concept unconscionable conduct as well as the factors that constitute unconscionability, contained in section 40(1) of the Consumer Protection Act 68 of 2008 (CPA), by comparing consumer laws and definitions from different countries with South Africa. This dissertation illustrates that the generic term unconscionable conduct is not well known in South Africa, despite the provision thereof in the CPA. There is consequently uncertainty regarding this concept and it is therefore necessary to include a more in depth definition and explanation. The dissertation furthermore attempts to establish concrete definitions for the unconscionability factors such as, physical force against a consumer, coercion, undue influence, pressure, duress or harassment and unfair tactics. These factors are not defined anywhere in the CPA and well-constructed definitions will reduce uncertainty and interpretation problems Two conclusions can be drawn from this dissertation: Firstly, that the concept of unconscionable conduct must be expanded, improved and explained. This will ensure that all suppliers know the consequences of unconscionability and that the consumer can have the peace of mind to know they will be protected under all circumstances. Secondly, that the CPA must be improved with regards to the factors of unconscionability. By removing unnecessary factors and providing concrete definitions to the remaining factors will ensure that the entire concept is easier to understand and apply.