Introduction
In recent years we have seen quite a few new pieces of legislation specifically aimed at providing consumers with certain rights in their relationships with suppliers. This is a new concept to our law in that historically the position was mainly that the contracting party with the most bargaining power – usually the supplier – was the one that could call the shots. Litigation is expensive and consumers who wanted to take on suppliers had to think twice before incurring those kind of costs.
Consumer legislation in general
Examples of legislation that aim to provide protection to consumers include the Electronic Communications and Transactions Act (ECTA), the National Credit Act (NCA), the Consumer Protection Act (CPA) and most recently the new Protection of Personal Information Act (POPI).
Whilst the NCA and POPI have more specific application, in that they specifically regulate rights when it comes to credit agreements (in the case of the NCA) or rights when it comes to the handling of a consumer’s personal information (in the case of POPI), both ECTA and the CPA apply more generally to regulate all electronic communications and transactions (ECTA generally regulates online contracting and electronic transactions) and consumer rights when it comes to goods and services provided by suppliers (the CPA provides for various rights to consumers in their relationships with suppliers).
What does ECTA and CPA mean for suppliers of goods?
Suppliers need to carefully consider the provisions of both ECTA and CPA in their supply of goods and services and also when drafting their contracts and specifically their returns policies. Even though the CPA is seen to be the “general law” that provides for consumer rights and supplier obligations, it is important to understand that a number of sections in the CPA will in actual fact not apply when contracting online or through any electronic means. In these cases some ECTA provisions may take preference and the CPA rights may not apply.
Summary of ECTA v CPA rights and obligations
Certain sections of the CPA will not apply to electronic transactions if ECTA applies to them or if the CPA specifically refers to ECTA.
Section 16 of the CPA addresses the cooling-off period after direct marketing, however, the CPA will not apply if section 44 of ECTA applies to the transaction. ECTA will apply where the transaction is electronic (as determined by section 42 of ECTA).
Section 19 of the CPA will not apply to a transaction when section 46 of ECTA applies to the transaction. These sections refer to the delivery of goods and supply of services to the consumer within a reasonable time. ECTA gives the supplier 30 days in which to effect delivery or supply where the CPA requires delivery or supply within a reasonable time.
The price of goods and services must be disclosed in accordance with section 23 of the CPA unless the transaction is electronic in which case the disclosure of the price must be in accordance with section 43 of ECTA. ECTA is more stringent regarding the information to be disclosed and provides a comprehensive list in the Act.
Catalogue marketing is regulated by section 33 of the CPA. However, where a transaction is entered into through catalogue marketing but the transaction is not concluded in person, then chapter 7 of ECTA applies. Chapter 7’s sections are the following: section 42 Scope of application, section 43 Information to be provided, section 44 Cooling-off period, section 45 Unsolicited goods, services or communications, section 46 Performance, section 47 Applicability of foreign law, section 48 Non-exclusion, and section 49 Complaints to Consumer Affairs Committee.
Direct marketing is regulated by BOTH the CPA and ECTA. Section 11 of the CPA applies in conjunction with section 45 of ECTA. These sections provide the consumer with the right to restrict unwanted direct marketing.
Conclusion
Consumers have a vast arsenal of rights which can be relied on for protection when concluding a variety of agreements, whether face-to-face, telephonically or online. Gone are the days where the supplier has all the power. Suppliers should therefore consider carefully which legislation will apply to their business operations and ensure that they adhere to the applicable Acts in order to avoid the serious consequences that come with contravening the acts.
