A NEW ANSWER TO AN OLD PROBLEM: COULD THE FACILITATION OF AN ACTIVE CIVIL SOCIETY BE AN EFFECTIVE STRATEGY TO ENHANCE THE CONSUMER PROTECTION ACT'S EFFECTIVENESS (original) (raw)
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Towards a new consumer rights paradigm: Elevating consumer rights to human rights in South Africa
Despite the increasing number of countries that have enshrined consumer rights as fundamental human rights in their constitutions, opinions remain divided on the legitimacy of recognising consumer rights as human rights. The view against accepting consumer rights as human rights is similar to that which questions the appropriateness of the economic, social and cultural rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) as human rights. Yet, we have witnessed a surge in ratification of the ICESCR – precisely because of increasing recognition that socio-economic vulnerability is a scourge that must be excised in order to ensure human wellbeing. The same concern impels imbuing consumer rights with the status and imprimatur of human rights. In light of the complexities of products and services brought about by advancement in technology, globalisation, increasing roles of multinational corporations in trade and, particularly, information deficit on the part of the consumer, there is indeed a need to integrate basic consumer rights into human rights, nationally and internationally. My central argument in this article is that although the Bill of Rights in the Constitution of the Republic of South Africa, 1996 does not explicitly mention consumer rights, some of the Fundamental Consumer Rights contained in the Consumer Protection Act 2008 could be viewed as an extension of the Bill of Rights in the marketplace and should be so recognised.
Enforcement and Effectiveness of Consumer Law
Ius Comparatum - Global Studies in Comparative Law, 2018
This contribution considers the enforcement and effectiveness of South African consumer law. It first sets out the legal and policy framework, including the most important legislation and strategic plans of some institutions tasked with enforcement. Thereafter specialist enforcement agencies are considered, including the National Consumer Commission and Financial Services Board. Experience with enforcement by these bodies, including statistics on complaints handling are discussed. Provincial consumer protection bodies are considered next, including the conundrum of whether provincial legislation, as opposed to national legislation, can grant judgments of the provincial consumer courts the same effect as that of the ordinary courts. The discussion of alternative dispute resolution focuses particularly on the various ombuds accredited under the Consumer Protection Act, 68 of 2008, as well as ombuds in the financial services sector. Statistics on their complaints handling are also supplied. Thereafter enforcement by the courts are discussed, including the problematic view of the National Consumer Tribunal that only the ordinary courts may decide on "contractual disputes", as well as the unconstitutionality of s 69 which does not allow consumers to immediately access the accessible small claims courts. After discussing collective redress actions, it is noted that consumer organisations have played a limited role in the enforcement of consumer law thus far. Private regulation through voluntary sectoral codes of conduct is considered, and thereafter sanctions for violations of consumer law. External relations and cooperation of the State, enforcers and consumer organisations are addressed before conclusions are drawn as to the effectiveness of the enforcement mechanisms. 1. Principal legal and policy framework 1.1. Legislation and common law South Africa does not have one unified law on consumer protection. The broadest legislation is the Consumer Protection Act ("CPA"), which came into force in 2011. 1 This Act recognises 10 consumer rights, 2 which echo those recognised in the UN Guidelines for Consumer Protection and by Consumers
AFRICAN JOURNAL OF BUSINESS MANAGEMENT, 2012
It is the social responsibility of business owners or suppliers to ensure that they carry out good trade practices. Consumers from disadvantaged communities were previously excluded from participation in fair business transactions in many sectors. Access to goods and services was problematic. Apart from certain common law rights for consumers generally, consumer protection was unclear and not codified. In addition, low literacy levels are serious disadvantage for consumers who become easy targets for unfair business practices because of their lack of understanding of their rights or the means to acquire legal assistance. The Consumer Protection Act (CPA) 68 of 2008 addresses these problems. The CPA, which came into effect in South Africa as from 1 April 2011, sets the basis for consumer protection in this country and is the first of its kind. It promotes a fair and accessible marketplace for consumer products and services. It also sets out ethical norms and national standards relating to consumer protection. This article explores specific provisions of the Act, with a focus on the role of business in transformation, as far as consumer protection is concerned, including the significance of plain and understandable language in contracts. It uses a descriptive approach to reveal the social responsibility of business in a transforming society as far as consumer rights are concerned. It concludes that the impact of the Consumer Protection Act for business is far-reaching; that business has a significant role to play with regard to consumer protection and transformation of a historically disadvantaged society, and that the law does play a role in placing pressure on businesses to act in a socially responsible manner.
Consumerism today has become an international force. The nuance of consumer protection, fulfillment of consumer aspirations and satisfaction is now recognized as an integral component of each and every welfare oriented economic development process. It is now over a decade since the Consumer Protection Act, 1986 was passed after year of lobbying by the various consumer organizations. The redressal machinery, however, is not fully satisfactory. The number of cases pending in the district forums is piling high. Unless consumer groups take determined action to see that the institutions set up for their protection work effectively, the redressal agencies will go the way of civil courts, where litigants have to wait for years and spend fortunes for the settlements of their disputes.
Perspectives on Consumerism and Consumer Protection Act in
2016
This study focuses on the issues and challenges relating to consumerism and consumer protection in Nigeria, with particular attention to the Consumer Protection Council (CPC) Act 2004. Evidences from available literature indicate that consumerism in Nigeria, like in most Less Developed Countries has remained at the lowest ebb in spite of the prevalence of unwholesome business practices. The Nigerian consumer is thus continuously saddled with substandard goods and services, coupled with the lack of information and limited choice in the market, thus necessitating political/government efforts. In This study, it was observed that although the CPC Act recognized the rights of consumers, it does not specifically provide for these rights as they are merely implied and subsumed into the functions of the council and the state committees established by the Act. We therefore conclude that mere existence of the law is not enough. Specific protective and compensatory measures should be clearly s...
Journal of Consumer Policy
The theme of fragmentation versus convergence of consumer law has relevance for Africa, inter alia because the African Continental Free Trade Area is foreseen to become a single continental market. Fragmentation of consumer law within one legal system and across legal systems is inevitable. Several types of hyper-vulnerable consumers require special protection. Drafters and interpreters of consumer legislation should remember that the majority of African consumers are hyper-vulnerable. Consumer legislation attuned to this reality needs special reference to the needs of such consumers. More resources should be allocated to the protection of hyper-vulnerable consumers, including through proactive enforcement. The informal economy may require some special rules, but the rules on quality of products should mostly remain the same. More resources should be targeted at enforcing safety standards and rooting out counterfeit goods and creative ways found to bring consumers in the informal economy under the protection of consumer law. Fragmentation of sources of consumer law in Africa and at the level of enforcement agencies is also considered. Even if rules are harmonized across legal systems, fragmentation is inevitable, inter alia due to different interpretations by local agencies. An attempt at some convergence has benefits, but cogent arguments against harmonization exist. Some realities in the Global South militate against harmonization. There is greater potential for some level of harmonization where there is a real cross-border interest, such as in e-commerce, travel, and tourism. When convergence is considered, the reasons behind current divergence should be researched to establish the potential for convergence.
Redress for Consumers in terms of the Consumer Protection Act 68 of 2008: A Comparative Discussion
Journal of International Commercial Law and Technology
The Consumer Protection Act 68 of 2008 1 is a groundbreaking piece of legislation in the realm of not only South African consumer law but also the South African law of contract. What is more, the Act also has worldwide implications as foreign companies selling goods and services in South African consumer markets will have to comply with the new legislation. In Part 1 of this paper, the avenues of redress available to the consumer in terms of the Act and the possible practical problems pertaining thereto are discussed. Part 2 deals with redress for consumers in terms of the European Union and relevant aspects of redress in the Spanish legal system. Part 3 is a comparative conclusion with regards to redress issues for consumers generally.
Consumer Rights: The case of South Africa and Malaysia
As access to the Internet expands across the world, greater numbers of people are buying goods and services on-line, through electronic transactions. In this process, people are disclosing personal data. If this is not effectively protected, a person's right to privacy stands to be violated. This review paper considers the extent to which legislation in South Africa and in Malaysia offers consumers protection when they transact on-line and when they provide personal data in the process, including when using social media sites. It is a reflective piece based on the researcher's personal insights due to more than a decade of experience serving on consumer adjudication statutory structures in South Africa. It is also informed by interviews during visits in December 2012 to Malaysian consumer regulatory offices and non-governmental organizations that focus on consumer protection issues. The findings show that in both countries legislation does not extend far enough to offer consumers redress when they transact electronically. Recently separate legislation for the protection of personal data has been introduced in both countries, and it is thus too soon to assess whether this legislation will be effective. There are initial steps being taken at a geo-political regional level through the Association South East Asian Nations (ASEAN) to encourage individual countries to all establish consumer protection and personal information protection legislation, as well as to promote inter-country co-operation in this regard. The Southern African Development Community (SADC) can learn lessons from this, to take similar steps among member-countries.