The Consumer Protection Bill, 2006: for public comment

According to the DTI , the new Consumer Protection Bill ["The Bill'] was published to "Promote a fair, accessible and sustainable marketplace for consumer products and services and; for that purpose to establish national norms and standards relating to consumer protection." The main provisions are to:

• Provide for improved standards of consumer information.
• To prohibit certain unfair marketing and business practices.
• To promote responsible consumer behaviour.
• To provide for harmonisation of laws relating to the protection of consumers.
• To promote a consistent enforcement framework relating to consumer transactions and agreements.
• To establish the National Consumer Commission.
• The new Bill will also repeal the Consumer Affairs (Unfair Business Practices) Act, 1988 (Act no 71 of 1988); The Trade Practices Act, 1976 (Act no. 76 of 1976); The Sales and Services Act, 1964 (Act no 25 of 1964); The Business Names Act, 1960 (Act no 27 of 1960); The Businesses Act, 1991 (Act no 71 of 1991); The Price Control Act, 1964 (Act no 25 of 1964); and Section 2 to 13, and section 16 to 17 of the Merchandise Marks Act, 1941 (Act no 17 of 1941).
• To make consequential amendments to various other Acts.
• To provide for related incidental matters.

For several reasons, as set out in the preamble of The Bill, Government has enacted this Act in order to:

• Promote and protect the economic interests of consumers.
• Improve access to, and the quality of, information that is necessary so that consumers are able to make informed choices according to their individual wishes and needs.
• Promote sustainable and environmentally responsible consumption, and protect consumer hazards from hazards to their health and safety.
• Develop effective means of redress for consumers.
• Promote and provide for consumer education, including education concerning the environmental, social and economic effects of consumer choices.
• Facilitate the freedom of consumers to associate and form groups to advocate and promote their common interests.
• Promote consumer participation in decision-making processes concerning the marketplace and interests of consumers.

The Bill is arranged into 10 sections/parts:

1. Interpretation, purpose and application
2. Fundamental Consumer Rights
3. Protection of consumer rights and consumers' voice
4. Industry Regulation
5. National Consumer Protection Institutions
6. Enforcement of the Act
7. General Provisions
8. Conflicting Legislation
9. Consequential Amendments
10. Transitional Provisions

While the first section/part deals with definitions, the second section/part focuses on the purpose and policy of the act - the primary purpose of the act. It is stated to be the promotion and advance of the social and economic welfare of consumers in South Africa through the establishment of a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible.

It is under this section that The Bill promotes the establishment of The National Consumer Commission to take responsibility for implementation of reasonable and practical measures to accommodate consumer rights. Chapter 2 of this section deals specifically with the "Right to equal access to the consumer market" and will be of special interest to Commerce and Industry [Chapter 2 of Section 2]. This chapter deals with issues pertaining to market targeting, packaging, discrimination in consumer transactions, management of pricing, confidentiality and privacy, fair and responsible marketing and promotion, fair agreements, fair value, good quality and safety as well as suppliers' accountability to consumers.

The thirds section defines the rights of consumers to be heard and obtain redress and the role civil society has in this case. Industry regulation is defined in the fourth part and deals specifically with the registration of business names, licensing of persons for direct marketing and industry codes.

National Consumer Commission

Section/part five returns to the matter of the "Establishment of the National Consumer Commission". The first part refers specifically to the constitution of the Board, the appointment of the CEO, appointment of inspectors and investigators and financing of the commission. Further to the above, this section defines the general functions of the National Consumer Commission. The latter refer specifically to the monitoring of trends in the consumer market and industry with respect to their needs and interests, as well as the submission of an annual work plan to the minister in this regard. The Commission will also be responsible for the development of a Code of Practice relating to the Act, promotion of legislative reform, promotion of consumer protection within organs of the state, research and public information, relations with other regulatory authorities and the reporting requirements of the National Consumer Commission.

Section/part six deals specifically with the enforcement of the Act through investigation, notices to cease unlicensed practices, issuance of compliance notices, objections, consent orders and authority to enter and search under warrant.

The last three sections of The Bill refer to the amendment of conflicting legislation, consequential amendments and transitional provisions required. These sections will have a practical impact and will require business to adjust current practices and operational requirements.