"Innovative Orders" Under the South African Consumer Protection Act 68 of 2008

  • Tjakie Naude University of Cape Town https://orcid.org/0000-0002-3236-8315
  • Elizabeth de Stadler Director, Novation Consulting (Pty) Ltd, and Senior Associate, Esselaar Attorneys
Keywords: Consumer Protection Act, consumer protection, innovative orders, enhanced consumer measures

Abstract

This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time".

The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures".

 

Google_Scholar86.png  

Author Biographies

Tjakie Naude, University of Cape Town

Professor of Law

University of Cape Town       

Elizabeth de Stadler, Director, Novation Consulting (Pty) Ltd, and Senior Associate, Esselaar Attorneys

BA LLB (Stellenbosch University) LLM (University of Cape Town). Director, Novation Consulting (Pty) Ltd, and Senior Associate, Esselaar Attorneys.

References

Literature
Barnard 2012 De Jure
Barnard J “The influence of the Consumer Protection Act 68 of 2008 on the warranty against latent defects, voetstoots clauses and liability for damages” 2012 De Jure 445-484.

Cartwright 2016 Cambridge LJ
Cartwright P “Redress compliance and choice: enhanced consumer measures at the retreat from punishment in the Consumer Rights Act 2015” 2016 Cambridge LJ 271-300.

De Búrca and Scott 2007 Columbia Journal of European Law
De Búrca G and Scott J “Introduction” 2007 Columbia Journal of European Law 513-517

Du Plessis Re-Interpretation of Statutes
Du Plessis LM Re-Interpretation of Statutes (LexisNexis Durban 2002)

Du Plessis 1981 SALJ
Du Plessis LM “Tentative reflections on the systematizations of the rules and presumptions of statutory interpretation” 1981 SALJ 211-217

De Stadler “Section 3”
De Stadler E “Section 3” in Naudé T and Eiselen S (eds) Commentary on the Consumer Protection Act Revision Service 2 (Juta and Company (Pty) Ltd Claremont 2017)

De Stadler “Section 56”
De Stadler E “Section 56” in Naude T and Eiselen S Commentary on the Consumer Protection Act Revision Service 2 (Juta and Co (Pty) Ltd Claremont 2017)

Hutchison and Pretorius The Law of Contract in South Africa
Hutchison D and Pretorius C (eds) The Law of Contract in South Africa 3rd ed (Oxford University Press Cape Town 2017)

Jacobs, Stoop and Van Niekerk 2010 PELJ
Jacobs W, Stoop PN and Van Niekerk R “Fundamental consumer rights under the Consumer Protection Act 68 of 2008: A critical overview and analysis” 2010 PELJ 302-406.

Naude 2010 SALJ
Naude T “Enforcement procedures in respect of the consumer’s right to fair, reasonable and just terms under the new Consumer Protection Act in comparative perspective” 2010 SALJ 515-547

Naude 2011 SAMercLJ
Naude T “The consumer’s right to safe, good quality goods and the implied warranty of quality under sections 55 and 56 of the Consumer Protection Act 68 of 2008” 2011 SA Merc LJ 336-351

Sabel and Zeitlin 2008 European LJ
Sabel CF and Zeitlin J “Learning from Difference: the New Architecture of Experimentalist Governance in the EU” 2008 European LJ 271-327

Van Heerden “Section 116”
Van Heerden C “Section 116” in Naude T and Eiselen S Commentary on the Consumer Protection Act Revision Service 2 (Juta and Co (Pty) Ltd Claremont 2017)

Van Huyssteen, Lubbe and Reinecke Contract: General Principles
Van Huyssteen LF, Lubbe GF and Reinecke MFB Contract: General Principles 5th ed (Juta and Co (Pty) Ltd Claremont 2016)

Case law

Afriforum v Minister of Trade and Industry and Others 2013 4 SA 63 (GNP)
Alpha Trust (Edms) Bpk v Van der Watt 1975 3 SA 734 (A).
Byleveld v Execor Twelve (Pty) Ltd t/a Motor City (NCT/10686/2013/75(1)) [2014] ZANCT 2 (24 February 2014)
Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530
Lazarus v RDB Project Management CC t/a Solid and Another (NCT/36112/2016/75(1)(b)) [2016] ZANCT 15 (9 June 2016).
Motswai v House and Home (NCT/33263/2015/75(1)(b)CPA [2016] ZANCT 20 (7 July 2016)
Motswai v House and Home (NCT/33263/2015/75(1)(b)CPA) [2017] ZANCT 57 (13 April 2017)
National Consumer Commission v Western Car Sales CC t/a Western Car Sales (NCT/81554/2017/73(2)(b)) [2017] ZANCT 102 (14 September 2017)
Ngoza v Roque Quality Cars (NCT/79905/2017/73(3)&75(1)(b)) [2017] ZANCT 104 (28 September 2017)
Section Three Dolphin Coast Medical Centre CC v Cowar Investments (Pty) Ltd 2006 2 SA 15 (D)
Standard Bank Investment Corporation Ltd v Competition Commission; Liberty Life Association of Africa Ltd v Competition Commission 2000 2 SA 797 (SCA)
Vousvoukis v Queen Ace CC t/a Ace Motors 2016 3 SA 188 (ECG)

Legislation

Alienation of Land Act of 68 of 1981
Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010)
Consumer Protection Act 68 of 2008
Consumer Rights Act 2015 (UK)
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests, OJ L110, 1 May 2009.
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights OJ L 304/64, 22 November 2011
Enterprise Act 2002 (UK)
Prescription Act 68 of 1969
Property Time-sharing Control Act 75 of 1983
Government Publications
GN 271 in GG 38637 of 3 March 2015
GN 492 in GG 34484 of 25 July 2011
GN R293 in GG 34180 of 1 April 2011

Internet sources

Consumer Goods and Services Ombud date unknown http://www.cgso.org.za/wp-content/uploads/2016/05/CGSO-ADVISORY-NOTE-1-RETURNS-REVISION-3.pdf?87ab66&87ab66
Consumer Goods and Services Ombud Date unknown Advisory Note 1: Consumer’s rights regarding defective goods http://www.cgso.org.za/wp-content/uploads/2016/05/CGSO-ADVISORY-NOTE-1-RETURNS-REVISION-3.pdf?87ab66&87ab66 accessed 7 May 2017
Department for Business Innovation and Skills 2015 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/431158/bis-15-292-guidance-for-enforcers-of-consumer-law.pdf
Department for Business Innovation and Skills 2015 Enhanced Consumer Measures – Guidance for enforcers of consumer law https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/431158/bis-15-292-guidance-for-enforcers-of-consumer-law.pdf accessed 16 April 2018
Ebrahim Mohamed 2017 http://www.gov.za/speeches/address-commissioner-ebrahim-mohamed-media-briefing-launch-public-inquiry-vacation
Ebrahim Mohamed 2017 Commissioner Ebrahim Mohamed launches public inquiry into vacation ownership/timeshare industry, Address by Commissioner Ebrahim Mohamed at the media briefing to launch the public inquiry into the vacation ownership/timeshare industry on 18 May 2017 http://www.gov.za/speeches/address-commissioner-ebrahim-mohamed-media-briefing-launch-public-inquiry-vacation accessed 16 April 2018
Parliamentary Monitoring Group 2017 https://pmg.org.za/committee-meeting/25126
Parliamentary Monitoring Group 2017 Debt Relief Committee Bill; National Consumer Commission; National Credit Regulator Annual Report; SABS & NRCS follow-up, minutes of a meeting of the Parliamentary Portfolio Committee on Trade and Industry of 3 October 2017 https://pmg.org.za/committee-meeting/25126/ accessed 12 October 2017
Views
  • Abstract 134
  • pdf 95
  • xml 1
  • epub 0
Views and downloads are with effect from 11 January 2018
Published
2019-04-25
Section
Articles