Consumer Protection

The Consumer Protection Act and Unfair Contractual Terms

By 07/07/2011 June 9th, 2021 No Comments

The Consumer Protection Act provides consumers with the right to fair, just and reasonable terms and conditions. In this regard, section 48(1)(a)(ii) specifically states that “A supplier must not offer to supply, supply or enter into an agreement to supply any goods or services on terms that are unfair, unreasonable, or unjust.”

 Regulation 44 of the Consumer Protection Act has set out a list of approximately 28 terms that are unfair against the consumer. Many suppliers and service providers have standard terms and conditions that were drafted when the company was established and have not been looked at since. This article is going to give some of the examples of terms that are deemed to be prejudicial to a consumer if they were to lay a complaint against you or your company.

 Unfair and Unreasonable Terms

  1. Excluding or limiting the liability of a supplier for the death of, or the personal injury caused to a consumer through and act or omission of that supplier (to be read with section 61of the Act).

  2. Limiting, or having the effect of limiting the supplier’s vicarious liability for its agents. In this respect it must be noted that the Supplier is thus liable for all the parties in the supply chain.

  3. Modifying the normal rules regarding the distribution of risk (in respect of the passing of ownership) to the detriment of the consumer.

  4. Allowing the supplier to increase the price agreed with the consumer when the agreement was concluded without giving the consumer the right to terminate the agreement.

  5. Giving the supplier the right to determine whether the goods or services supplied are in conformity with the agreement (for example it’s not for your hairdresser to tell you that the haircut is the same as the picture when you say it’s not what you asked for), or giving the supplier the exclusive right to interpret any term of the agreement.

  6. Allowing the supplier to cancel the contract at will where the same right is not granted to the consumer

  7. Permitting the supplier, but not the consumer, to renew or not renew the agreement.

  8. Giving the supplier the possibility of transferring his or her obligations under the agreement to the detriment of the consumer, without the consent of the consumer.

  9. Providing that a law other than that of the Republic applies to a consumer agreement concluded and implemented in the Republic, where the consumer was residing in the Republic at the time the agreement was concluded.

  10. Restricting the evidence available to the consumer or imposing on him/her a burden of proof which, according to the applicable law, should lie with the supplier.

 In deciding the outcome of a dispute, the court will consider the fair value of the goods, as well as the nature of the parties to that transaction, their relationship to each other and their relative capacity and bargaining positions (such as their relative education and experience levels). Where a clause is presumed to be unfair, the burden will rest on the supplier to prove why is should be deemed fair and remain valid.

 The consumer’s right to fair, just and reasonable terms and conditions is canvassed by numerous sections in the Act. Our firm offers the service of perusing your standard contracts with a view to extracting the unfair clauses and where required, re-drafting contracts (or portions thereof) so as to ensure your company’s compliance with the Act.

Ian Mc Laren

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.