Enforcement of consumers' rights under the Consumer Protection Act 68 of 2008

Abstract

In the foundational consumer protection policy document, the Draft Green Paper on the Consumer Protection Framework (Green Paper), the South African policymaker proclaimed that a ‘lack of enforcement results in widespread non-compliance with legal provisions, defeating the objectives of regulation.’ Item 22 of the revised United Nations Guidelines for Consumer Protection (revised UN Guidelines) urges the Member States to develop, strengthen or maintain consumer protection enforcement measures. Although the revised UN Guidelines are a non-binding international soft law instrument, they influence national regulatory regimes. Despite the proclamations in the Green Paper and the revised UN Guidelines, numerous challenges hinder the enforcement of consumers’ rights provided under the Consumer Protection Act 68 of 2008 (CPA). This thesis is an earnest attempt to identify and analyse all the challenges that impede the enforcement of CPA consumers’ rights and propose solutions to improve the enforcement of these rights.

Chapter 1 is the introductory chapter wherein an overview of the legislative framework that governs the enforcement of consumer’s rights and the enforcement mechanisms are discussed. The primary CPA section that provides for the enforcement of consumers’ rights, section 69, and all the entities that may be approached to enforce consumers’ rights are discussed in general terms. This part of the thesis includes the research statement and objectives, the research methodology, the choice of comparative jurisdictions, an overview of each chapter, delineations and limitations, and the referencing technique.

In Chapter 2, the numerous challenges faced by consumers who want to enforce their rights are identified through a study of multiple judgements and rulings of the National Consumer Tribunal (Tribunal or NCT) and South African high courts. In addition, an analysis of the legislative enforcement framework and enforcement mechanisms provided in the CPA is conducted. The identified challenges include several legislative drafting anomalies, a lack of clarity about the role and powers of some of the entities responsible for the enforcement of consumers’ rights, and the cumbersome enforcement processes and procedures that hinder the enforcement of consumers’ rights. One of the most critical discussions is whether the primary entity mandated to enforce the CPA, the National Consumer Commission (Commission or the NCC), should investigate individual complaints given its limited resources. To answer this question and discover investigation and enforcement strategies that are not prescribed under the CPA, a focused study on how consumer protection laws are implemented in the United States of America is conducted in Chapter 3. This is a shorter chapter than Chapter 4 wherein a more comprehensive study of the Australian legislative enforcement framework and enforcement mechanisms is conducted.

Chapter 5 summarises the challenges that hinder the enforcement of consumers’ rights and proposes measures to improve the enforcement of consumers’ rights. While some proposals seek to rectify legislative drafting errors and lacunae that have been the subject of journal articles and law textbooks, the most innovative recommendations are based on the study of the two comparable jurisdictions discussed in Chapter 3 and Chapter 4. Due to the identified challenges’ specificity and the distinctiveness of the necessary interventions, the proposed solutions are discussed under separate headings. The entire discourse is summed up under the final remarks.