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1
Chausse, Roman. "A comparative and critical discussion of the redress available to consumers by consumer courts in terms of the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26584.
Full textAbstract:
The fundamental consumer rights granted to consumers by the Consumer Protection Act 68 of 2008 (hereinafter referred to as the CPA) would be without meaning if no avenues of redress were available to enforce them. The National Consumer Commission as well as the National Consumer Tribunal and the consumer courts will enforce the Act. One of the more central and important aims of the CPA (section 69) is to ensure that an aggrieved consumer has access to redress, this also being one of the European Union’s consumer protection rights. The CPA therefore empowers the consumer by setting out redress options where a consumer believes that his or her right has been infringed. There is a wide range of options available to consumers if they have a complaint in terms of the CPA. Sections 68 to 76, which are found in Chapter 3 Part A to C, are the provisions that deal with the protection of Consumer Rights. In terms of the CPA, consumers are not obliged to approach the supplier against whom they have a complaint before first going somewhere else. In terms of section 69 of the Act, the category of persons listed in section 4(1) can enforce a right in terms of the Act or in terms of a transaction or agreement, or resolve a dispute with a supplier by: Referring the matter directly to the National Consumer Tribunal; referring the matter to the applicable recognised ombud with jurisdiction over the supplier and if the matter does not concern the supplier contemplated in s 69(b), referring the matter to the applicable accredited industry ombud with jurisdiction. The consumer may also apply to the relevant consumer court of the province with jurisdiction (subject to the provincial legislation governing it). A dispute may also be referred to an alternative dispute agent, filing a complaint with the National Consumer Commission or approaching a court with jurisdiction over the matter (only when all the other remedies available to that person in terms of national legislation have been exhausted). The main focus of the research will be the role of consumer courts in particular and their possible enforcement and execution shortcomings. The consumer courts are regulated on a national level in terms of the CPA and on provincial level in terms of provincial legislation of the various provinces. I will illustrate these shortcomings in a discussion of two relevant cases. A short discussion of the other options available to the consumers for redress in terms of the CPA will also be included. Other avenues of redress that will briefly be discussed are complaints lodged to the National Consumer Tribunal, the National Consumer Commission and alternative dispute resolution. Since the CPA became fully effective on the 31 of March 2011 and is more in line with international trends in consumer protection law, a short comparative study is necessary. I will be looking at the consumer law in Scotland, which is affected, by the UK consumer law in the United Kingdom.Dissertation (LLM)--University of Pretoria, 2012.
Mercantile Law
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Burger, Geraldine. "Unfair commercial practices in terms of the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65627.
Full textAbstract:
The Consumer Protection Act is a comprehensive piece of legislation which aims to regulate the consumer market widely. The South African situation, in comparison with the European Union for example, reveals that the general purpose and principle of the European Unfair Commercial Practice Directive (hereinafter the UCPD) is to create a general statutory duty to trade fairly in consumer transactions. The UCPD aims to eliminate distortions in the international market caused by different laws of unfair trading. The enactment of the CPA is a clear indicator that the legislator has taken note of international trends in the field of consumer protection and has fulfilled the promise to bring South African Law in line with international consumer law and practice. The aim in the dissertation is critically to analyse the provisions of the CPA in relation to unfair commercial practices. The core focus lies with the critical analyses of sections 40, 41 of the CPA in this regard. The dissertation attempts to explain the rationale for a comparison with the UCPD and how this comparison assists in addressing issues that the critical analysis of the unfair commercial practice provisions in the CPA elucidate. It is hoped that the comparison will bring to light shortfalls and inconsistencies, as well as consistencies, between these pieces of legislation (CPA and UCPD). The law needs to promote and to protect the economic interest of consumers, to improve access to information that is necessary for the consumer to be able to make an informed choice, to protect consumers from any hazard which is a threat to their well-being and safety, to develop effective means of redress for consumers, to promote and provide consumer education and to promote consumer participation. Focus will be on the conduct of the supplier and is limited to a discussion of sections 40 and 41. With regards to section 40 the focus is on unconscionable conduct. An extensive explanation of unfair commercial practices in terms of the UCPD will be provided, and includes a broad overview of the relevant articles read together with the relevant recitals. An overview of definitions, concepts and case law will is presented in order to offer a clear view of unfair commercial practices in terms of the said directive. The research aims will be achieved by examining national and international legislation, relevant case law (where applicable and possible) from South Africa, The European Court of Justice (ECJ) and member states. The result will be that the consumer has greater confidence in the protection the law provides and which offers a similar level of redress to consumers so that they are not discouraged that the law has only face value. Instead, consumers will be encouraged to defend their rights and will be educated as to what they are entitled.Mini Dissertation (LLM)--University of Pretoria, 2017.
Mercantile Law
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Van, der Linde Sunel. "Product liability : the common law and the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65735.
Full textAbstract:
The main purpose of this dissertation is to discuss the influence of the Consumer Protection Act 68 of 2008 (“CPA” or “the Act”) on product liability in South Africa whilst taking into account the common law position which finds application in situations where the CPA does not apply. Under the South African common law, the only recourse available to consumers who suffer harm or sustain an injury as a result of a defective product, is a claim under the law of contract or the law of delict. Claims under both the law of contract and law of delict unfortunately have its shortcomings, most notably the consumer under the law of contract has to prove that a breach of warranty occurred and that a contractual nexus existed between the parties. Whereas under the law of delict the consumer is required to prove fault on the part of the supplier of the defective goods, which in most cases proved to be a difficult or impossible task and as a result the consumer is left without any effective recourse. The court in Wagener v Pharmacare was also not prepared to impose strict product liability on the producer but left it to the legislature to do so. The legislature answered the call with the enactment of section 61 of the CPA, which has introduced a so-called strict product liability regime for harm caused by defective goods. Section 61 of the CPA states that the producer or importer, distributor or retailer of any goods is liable for any harm caused wholly or as a consequence of supplying any unsafe goods a product failure defect or hazard in any goods or the inadequate instructions or warning provided to the consumer pertaining to any hazard arising from or associated with the use of any goodsirrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be. Many academics have applauded the CPA in this respect. However, the defences available to a supplier in terms of the CPA have led to some criticism. Section 2(2) of the CPA also provides that foreign and international law may be incorporated when interpreting and applying the CPA and as section 61 of the CPA shares similarities with the European Directive on Product Liability of 1985 (“EU Directive”), it is accordingly useful to consider the application and interpretation thereof. The final conclusion drawn from this dissertation, is that the CPA makes provision for a modified strict product liability regime and could in more than one instance be regarded as defective in itself. It is however contented that the CPA is a step in the right direction and future interpretations by our courts of section 61 are welcomed.Mini Dissertation (LLM)--University of Pretoria, 2017.
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Lamola, Ronald Ozzy. "Regulation of public property syndication schemes under the Companies Act 71 of 2008 and the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/45982.
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Westraat, Adele Suzanne. "The influence and interpretation of the Consumer Protection Act 68 of 2008 on hospital exemption clauses." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53209.
Full textAbstract:
Exemption clauses are commonly used in hospital contracts to exclude the liability of the hospital or hospital personnel for personal injury or death and presented to the patient on a take-it-or-leave-it-basis. Patients usually sign these contracts containing the exemption clauses because it is impossible to negotiate the terms of the contract. Exemption clauses that are not contrary to public policy are enforceable between parties. Courts have generally favoured the application of the principles of freedom of contract and pacta sunt servanda to determine the enforceability of exemption clauses. The Consumer Protection Act, 68 of 2008 (CPA) was recently enacted, and among other things, it addresses the unfairness that is associated with exemption clauses and aims to improve consumer awareness. The common law principles were modified by the CPA. Exemption clauses, after the enactment of the CPA, are only enforceable if it complies with the requirements as set out in the Act. Exemption clauses must be drafted in plain and understandable language especially clauses that can be construed to be unfair and the risks pertaining to these clauses must also be drafted in an understandable manner. Such a clause must be brought to the patient s attention and a consumer must sign next to the clause after any term that can be interpreted as unfair terms and risks that is associated with such term is explained to him. A drafter should take into consideration greylist and blacklist terms when drafting exemption clauses, since certain clauses are prohibited and other terms are presumed to be unfair. A drafter can include a term that excludes liability for personal injury of the patient, but the hospital or its personnel will have to prove that such term is fair under the circumstances. A clause that excludes liability for death is not permissible. The enactment of the CPA was long overdue and it was vital, especially in respect of fairness of exemption clauses and the protection of patients against unfair contract terms.Mini Dissertation (LLM)--University of Pretoria, 2015.
Private Law
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Kamanga, Vikelwa Vicky. "Product labelling and trade descriptions the failure to warn and the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/62541.
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Stenekamp, Marius Walter. "The impact of the Consumer Protection Act 68 of 2008 and related legislation on typical lease agreements." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/25108.
Full textAbstract:
The common law of lease sets out certain reciprocal rights and duties of lessors and lessees. It also provides for sui generis aspects such as the lessor’s hypothec and the protection of the lessee under the huur gaat voor koop rule. The relatively uncomplicated manner in which the common law has addressed specific issues pertaining to the law of lease has however been influenced by recent legislation that have an impact on various aspects of lease. The Rental Housing Act 50 of 1999 has entrenched parameters for the exercise of certain rights by the lessor and lessee and has introduced Rental Housing Tribunals to deal with unfair leasing practices. The Prevention of Illegal Eviction of and Unlawful Occupation of Land Act 19 of 1998 has radically impacted on the process that a lessor has to follow where he wishes to evict a lessee who remains in occupation of a leased premises after lawful termination of a lease agreement. Most recently the introduction of the Consumer Protection Act 68 of 2008, which came into full operation at the end of March 2011, appears to have a significant impact on the law of lease in those instances where the Act finds application to a lease agreement. In this regard it must be observed that the Consumer Protection Act impacts on a lease agreement that falls within its scope in two ways: on the one hand section 14 of the Act which regulates fixed term agreements may find specific application to a lease agreement that falls within the scope of application of the said section. On the other hand, there are certain ‘general’ provisions of the Act that will find application generally to lease agreements that fall within the scope of application of the Act , even if they do not fall within the specific scope of application of section 14. The purpose of this dissertation is to investigate how the various pieces of legislation indicated herein , impact on the common law of lease . The main focus will eventually be the impact of the Consumer Protection Act as such impact still has to manifest in practice.It will thus be endeavoured to present a holistic view of the ‘changing face of the law of lease’ in South Africa.Dissertation (LLM)--University of Pretoria, 2012.
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Van, der Merwe Antoinette. "Does the Consumer Protection Act 68 of 2008 have the effect of reviving the abolished exceptio doli generalis?" Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53199.
Full textAbstract:
The historical legal exception, the exceptio doli generalis was widely applied and accepted in
the South African law of contract as a justifiable defence by a defendant to recind unfair
contracts or contractual terms during the twentieth century. Our courts implemented openended
or abstract values of equity and fairness in the substantive law in order to allow a
defendant to counter claim for the enforcement of an unfair contract.
In spite of the wide application of this defence by our courts, it was put to an end in Bank of
Lisbon and South Africa Ltd v De Ornelas in 1988. The outcome of this judgment created a
lacuna in our law for court to consider criteria of fairness and equity in their deliberations
when delivering judgments.
The universal doctrine of unconscionability which advocates considerations of fairness and
equity appeared to have influenced a move towards consumer legislation on a global scale
and ultimately to the enactments of the Consumer Protection Act (CPA), introduced in 2008
and operational since 31 March 2011.
The CPA contains several provisions which appear to revive the application of defences akin
to the abolished exceptio doli generalis such as the codification of the consumer's right to
"fair and honest dealing" and the right to "fair, just and reasonable terms and conditions" to
name but a few.
The question that arises and which is explored herein is whether the rights afforded by the
CPA constitute the revival of the principles that used to apply in terms of the exceptio doli
generalis.Mini Dissertation (LLM)--University of Pretoria, 2015.
Private Law
LLM
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9
Biggs, Lynn. "An evaluation of the impact of the Consumer Protection Act 68 of 2008 on the relationship between franchisors and franchisees." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/14642.
Full textAbstract:
The franchising business model is an attractive option for both franchisors and franchisees. Franchisors grant the rights to use their intellectual property and business system to franchisees for a fee. Franchisees buy into the tried-and-tested business system, receive ongoing training and support and operate under an established trade mark or trade name. Fundamental characteristics of the franchise relationship include: the contractual nature thereof, the use of the franchisor‘s intellectual property by the franchisee, operating the franchise outlet according to the franchisor‘s business system, providing training and support to the franchisee, and paying for the use of the franchisor‘s intellectual property and business system. These characteristics have resulted in inherent tensions between franchisors and franchisees, which arise by virtue of, inter alia, the control exercised by the franchisor over the use of its intellectual property, franchisor opportunism, poor franchisee selection, franchisee free-riding, inadequate training and support, or the sunk investments made by the franchisee. The franchisor and franchisee generally use a franchise agreement to regulate their relationship. However, the franchise agreement itself can also lead to conflict between the parties, such as that arising from poor drafted clauses relating to territorial rights, renewal, payment, termination, restraint of trade, or confidentiality. The franchise agreement is typically drafted in the standard-form, resulting in franchisees faced with unequal bargaining power. The common law of contract is based on principles of freedom of contract and sanctity of contract and is, therefore, limited in its ability to resolve the tensions between the parties. Various models for regulating the franchising industry can be adopted, for example, self-regulation, statutory regulation, or co-regulation. Australia and Canada have adopted the statutory model by enacting franchise-specific legislation and New Zealand has followed the self-regulation model with no legislation regulating its franchising industry. South Africa did not formally regulate the franchise relationship through legislation until the enactment of its consumer protection legislation, the Consumer Protection Act 68 of 2008 (CPA), which includes a franchisee within the definition of consumer. This entails that all franchisees enjoy the protection of the CPA and all franchise agreements must comply with the provisions of the CPA. The South African economy is unique in that it is burdened by the social ills of its discriminatory past, such as high levels of unemployment, illiteracy and inequality. The country is faced with a slow growing economy with little development and promotion of entrepreneurship among small businesses. Despite the burdensome economy within which the franchising industry is required to operate, the industry‘s contribution to the Gross Domestic Product (GDP) of the country has remained stable. The South African government has identified the franchising industry as an opportunity for job creation, economic empowerment and promotion of entrepreneurship. The aim of the study is to ascertain whether the CPA is the correct legislative vehicle to regulate the franchise relationship, while enhancing the growth and development of the franchising industry. This thesis concludes that the introduction of fundamental consumer rights and rights of redress for franchisees through the provisions of the CPA has contributed to, or assisted in, the removal of the tensions inherent in the franchise relationship. In particular, the CPA has adequately addressed the lack of formal regulation of the franchise relationship through its disclosure requirements and its regulations. The thesis also proposes amendments to some of the CPA regulations, which will further enhance the disclosure requirements, and aid in curtailing the conflict caused by the terms of the franchise agreement. The thesis further proposes that the application of the CPA to franchise agreements should be limited to small, inexperienced or unsophisticated franchisees that are in need of the protection. An essential premise is that the CPA aims to protect ordinary consumers, including juristic persons, in day-to-day transactions (up to the threshold amount), to avoid suppliers taking advantage of them. Larger, more sophisticated or experienced franchisees, with stronger bargaining power and access to legal advice, do not necessarily require the protection of the CPA. The criteria relating to the size of class of micro-, very small and small enterprises, but not medium enterprises, within the different sectors or sub-sectors in terms of the National Small Enterprises Act, 102 of 1996, should be considered and used as a guide to determine whether the CPA applies to a franchise agreement. The development, growth and success of the franchising industry depends on the education of prospective franchisees wanting to adopt the franchising business model and invest in the industry. The CPA does not recognise or promote the roles of the various stakeholders (franchisors, franchisees and the government) with regard to the provision of education, training, ongoing support and assistance to prospective franchisees. This thesis proposes that mechanisms to enhance the education of prospective franchisees should be promoted, such as tandem franchising, obtaining advice undertakings from prospective franchisees before concluding franchise agreements, and increasing the role of the Consumer Commission in providing franchising education.
10
De, Veer Carl. "The influence of Part G of the Consumer Protection Act 68 of 2008 on the general principles of contract." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53121.
Full textAbstract:
This dissertation considers and evaluates how the implementation of the Consumer Protection Act 68 of 2008 ( CPA ) and more specifically Part G thereof influences the common law in relation to contract law and the consumer s rights to fair just and reasonable contract terms, together with considering the pit falls of the CPA in its current form and the sections which require amendment.
It will be illustrated that the CPA has been drafted with the clear intention of protecting and benefiting the consumer by codifying the common law provisions in order to strengthen the consumer s position within consumer markets.
Many terms and principles introduced by the CPA are foreign to the South African legal system. It can be expected with any entirely new piece of legislation implemented within an existing legal system that there will be conflicts and uncertainties in the application thereof.
Ultimately this dissertation has found two sets of conclusions. Firstly the general effect that Part G of the CPA has on consumer markets, namely strengthening consumer rights thereby enabling consumers, more particularly historically disadvantaged consumers to actively partake in consumer markets as a whole. Secondly this dissertation unfortunately has also found that the CPA has failed to use essential mechanisms as used in the United Kingdom and European Union unfair terms legislation to curb unfair unjust and unreasonable contract terms.Hierdie verhandeling oorweeg en evalueer hoe die implementering van die Verbruikers Beskerming Wet No. 68 van 2008 (hierna " VBW ") en meer spesifiek Deel G daarvan wat die gemenereg met betrekking tot kontraktereg beïnvloed en die verbruiker se regte tot billike, regverdige en redelike kontrakterme, tesame met die
Dissertation (LLM)--University of Pretoria, 2015.
Mercantile Law
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Rudman, Jolandi. "The influence of the Consumer Protection Act 68 of 2008 and the plain language requirement of pharmaceutical product labelling." Diss., University of Pretoria, 2016. http://hdl.handle.net/2263/60089.
Full textAbstract:
The dissertation deals with the influence of the plain language requirement provided
for in section 22 of the Consumer Protection Act 68 of 2008 (CPA) on the current
practice of pharmaceutical product labelling.
The introduction in Chapter 1 sets the scene by providing an overview of the
dissertation: It includes a brief description and layout of the chapters; a discussion of
the research problem and aims; a demarcation of the methodology used; and an
explanation of the scope, limitations and delineations of the study.
The focus in chapter 2 is on prescription medication and the legislation applicable
thereto. The focus is on the Medicines and Related Substances Act 101 of 1965,
specifically regulations 8 to 10 promulgated in terms thereof. Furthermore, the relevant
provisions of both the abovementioned Acts are critically discussed and analysed. An
overview of the appropriate supply chain in this specific context is provided with
reference to medical practitioners, pharmacists and suppliers. Section 61 of the CPA
concerning damaged goods is also examined.
The development, meaning and importance of plain language as well as the
application and definition of an ?educated consumer? are discussed in chapter 3. As
this study concerns product labelling, section 24 of the CPA as well as the terms
?product labelling? and ?package inserts? are examined in chapter 4. At the same time,
section 22 and the meaning of ?document?, ?notice? and ?visual representation? are kept
in mind.
The dissertation is concluded in chapter 5. Here the final part of the golden thread is
completed ? the aims described in chapter 1 are confirmed through a brief summation
of the information provided and investigated in chapters 2 to 4.Mini Dissertation (LLM)--University of Pretoria, 2016.
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Modiba, Moeketsi Thomas. "The influence of the Consumer Protection Act 68 of 2008 on the concept of plain language in standard-form contracts." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53160.
Full textAbstract:
The purpose of this dissertation and the research contained therein was to discuss and
investigate the influence of the CPA on concept of plain language in standard-form
consumer contracts. In order to do so, it was important to discuss the historic background of
the law of contract as well as the position where the CPA was not applicable. This refers to a
position where common law principles determined the law of contract (including standardform
contracts). One of the fundamental principles of common law is freedom of contract.
Freedom of contract is a notion that parties are free to decide whether or not to contract, with
whom to contract, the nature of the contract and the terms of the contract.
Despite the fact that freedom of contract is deeply engrained in our legal system, does not
erase the fact that when it comes to consumer contracts (in particular standard-form contract
or contrat d adhésion) it is to the detriment of consumers. Under the principle of freedom of
contract the assumption is that parties have equal bargaining powers which is, in fact, not
always true.
In light of the above, the South African legislature promulgate the Consumer Protection Act,
Act 68 of 2008 which aims at improving the quality of information conferred to consumers by
the sellers, to ensure consumers make informed decisions which are in line with their needs
prior to contracting. Though the CPA changes the common law, it still makes provision to
preserve common law. Section 2(10) of the CPA leaves no doubt that the common law is not
replaced in its entirety by the Act for those matters that apply to it.
The introduction of the CPA brought about changes to the South African consumer
protection law. One of the changes is Section 22 which deals with plain language. A
fundamental consumer right under the CPA, the consumer s right to disclosure and
information (Part D) of the Act includes section 22 within its ambit and provides that
consumers have the right to information in plain and understandable language. It is
perceptible from this that the legislature envisions the plainness of language in contracts
(including standard-form contracts) and other legal documents as means to redress
imbalances between suppliers and consumers.
While it is undeniable that the will now be additional burdens on being in business, everyone
will benefit from the CPA. We are all consumers, after all.Mini Dissertation (LLM)--University of Pretoria, 2015.
Mercantile Law
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Rheeders, Anjo. "The international interpretation of unconscionable conduct and the unconscionability factors contained in section 40 of the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53182.
Full textAbstract:
This dissertation interprets the meaning and application of the concept unconscionable conduct as well as the factors that constitute unconscionability, contained in section 40(1) of the Consumer Protection Act 68 of 2008 (CPA), by comparing consumer laws and definitions from different countries with South Africa.
This dissertation illustrates that the generic term unconscionable conduct is not well known in South Africa, despite the provision thereof in the CPA. There is consequently uncertainty regarding this concept and it is therefore necessary to include a more in depth definition and explanation.
The dissertation furthermore attempts to establish concrete definitions for the unconscionability factors such as, physical force against a consumer, coercion, undue influence, pressure, duress or harassment and unfair tactics. These factors are not defined anywhere in the CPA and well-constructed definitions will reduce uncertainty and interpretation problems
Two conclusions can be drawn from this dissertation:
Firstly, that the concept of unconscionable conduct must be expanded, improved and explained. This will ensure that all suppliers know the consequences of unconscionability and that the consumer can have the peace of mind to know they will be protected under all circumstances.
Secondly, that the CPA must be improved with regards to the factors of unconscionability. By removing unnecessary factors and providing concrete definitions to the remaining factors will ensure that the entire concept is easier to understand and apply.Mini Dissertation (LLM)--University of Pretoria, 2015.
Mercantile Law
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De, Stadler Elizabeth Briers. "The scope of the application of the Consumer Protection Act 68 of 2008 in the context of the sale of defective goods in comparative perspective." Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/27809.
Full textAbstract:
The Consumer Protection Act 68 ('the CPA') came into effect on 31 March 2011. In broad terms, the purpose of the CPA is to promote the social and economic welfare of consumers. Specific reference is made to reducing disadvantages suffered by vulnerable consumers. The question posed in this thesis is whether the scope of the application of the CPA in relation to transactions for goods is consistent with the purpose of the Act, but also how it compares to the approaches taken in the European Union, United Kingdom and Australia. It is argued that the application provisions are not always fair, rational, clear, efficient and consistent with reasonable expectations. The following issues relating to the application of the Act are addressed: the approach to the protection of small juristic persons, the omission of a exclusion based on the purposes for which the transaction is concluded, the onus of proof, the exclusion of transactions outside the ordinary course of business, the definition of 'supplier', whether transactions should be 'for consideration' in order for the consumer to qualify for protection, whether the whole supply chain should be liable and whether all goods should fall within the scope of the Act. Recommendations on these issues are made in light of rationales for consumer protection legislation, proposed criteria for evaluating such legislation (namely whether the legislation is fair, rational, clear, efficient and consistent with reasonable expectations) and comparative research. Suggested amendments to the wording of relevant sections in the Act are made in the final chapter.
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Marlow, Ilse. "The duties of the estate agent in the sale of residential property and the influence of the Consumer Protection Act 68 of 2008." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/77411.
Full textAbstract:
The main purpose of this dissertation is to critically analyse the duties of an estate agent in the sale of residential property under the Consumer Protection Act 68 of 2008 (CPA). To present a comprehensive analysis of the research, one has to look further than the CPA, to also include the consumer protection measures which existed prior to the CPA in terms of the Estate Agency Affairs Act 112 of 1976 (EAAA) and the common law, as it is clear that the CPA aims to include the rights of consumers as provided for in industry-specific legislation (section 2(9) of the CPA) and the common law (section 2(10) of the CPA) within the ambit of the CPA.
A structured modus operandi includes an analysis of the provisions of section 5 of the CPA which clarifies the circumstances under which the CPA will apply, an investigative summary of the statutory duties imposed on the estate agent under the EAAA, an analysis of the common law duties imposed on the estate agent, a critical analysis of the duties imposed on an estate agent under section 19 and section 54 of the CPA and a conclusion of the research to critically answer the question: What are the duties of the estate agent in the sale of residential property under the CPA?
The research clearly illustrates that the intervention of the CPA brought about an important amendment of the common law, with the provisions of section 19(2)(a) and section 54(1) of the CPA importing terms to the agreement between the seller and the estate agent for the sale of the seller’s residential property that impose duties on the estate agent in the sale of residential property, which are not otherwise provided for under common law.
In order to present a logical conclusion and recommendations, the problematic application of the seller’s remedies under section 19(6) and section 54(2) of the CPA are disseminated in the research. A critical discussion on this aspect, supports and emphasises the importance of developing the common law as provided for under section 4(2)(a) of the CPA, to include terms to the specific type of agreement between the seller and the estate agent for the sale of the seller’s residential property, which impose duties on the estate agent as provided for in the CPA. Not only will this bring certainty in respect of the duties imposed on the estate agent in the sale of residential property, but will ultimately also guarantee the seller’s common law rights, to cancel the agreement with the estate agent and to institute a claim for damages suffered as a result of the estate agent who sells the seller’s residential property in breach of the duties imposed on the estate agent under the CPA, which are preserved under section 2(10) of the CPA.
It is also important to acknowledge that the Property Practitioners Act 22 of 2019 (PPA), which was signed into law by the President of the Republic of South Africa on 2 October 2019 replaces the EAAA. Although a comprehensive analysis of the duties imposed on the property practitioner under the PPA falls outside the scope of this research, mention must be made of the implications of including statutory regulation of property practitioners from a consumer protection perspective, outside the scope of the CPA.Mini Dissertation (LLM)--University of Pretoria, 2019.
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Munnik, Mariska. "The impact of Section 22 of the Consumer Protection Act 68 of 2008 on drafting principles in the South African law of contract." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53166.
Full textAbstract:
In this dissertation, the impact of section 22 of the Consumer Protection Act, 68 of
2008 on the drafting of contracts in South Africa is investigated.
It was shown that there has been a great shift internationally to the drafting of
consumer documents in plain language. Some jurisdictions even have statutory
guidelines for drafting in plain language. The benefits of drafting in plain language
were also mentioned.
The South African plain language drafting situation is quite unique, with the question
of what the characteristics of an ordinary consumer are, posing to be the most
important question in determining specific plain language guidelines for South African
consumers. It was found that there are potentially more than one type of ordinary
consumer , depending on the type of commercial transaction being entered into.
Although no statutory plain language drafting guidelines have been published in South
Africa, it was suggested that our common law rules of interpretation are a valuable
starting point when looking for guidelines for better drafting.
This dissertation concludes that two sets of guidelines be developed for at least two
levels of commercial transactions. Firstly, the international guidelines of Kimble should
be incorporated into our law for consumer contracts relating to more complex
consumer transactions. Secondly, another set of guidelines relating to the use of
illustrations, examples, headings or other aids to reading and understanding, as
envisioned by the CPA, should be developed for use in everyday consumer contracts
where the typical consumer is illiterate or falls into the so called vulnerable consumer
category.Mini Dissertation (LLM)--University of Pretoria, 2015.
Private Law
LLM
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Strydom, Zinta. "A critical analysis of strict product liability in South Africa." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/25110.
Full textAbstract:
The goal of this dissertation is to highlight the ambiguities contained in section 61 of the Consumer Protection Act 68 of 2008 (CPA), which attempts to introduce strict product liability for the entire supply chain in the event of product failure, and to propose amendments from which both the consumer as well as the supply chain could benefit. The new dispensation of strict product liability will lead to a step away from the no-fault based liability system that our courts have implemented for decades. Although this system is unfamiliar to South Africa, strict liability regimes have been followed in foreign countries for a considerable period of time. A comparative study of the approaches followed in America and Europe, which both advanced strict product liability regimes, will be undertaken in this study in order to illuminate problematic aspects relating to the concept of defect contained in section 61 of the CPA as well as the various duties of the supply chain in a strict product liability regime. It is argued that the provisions of the CPA ought to be supplemented with regulations, including, but not limited to, the implementation of adequate safety regulations to mitigate product recalls and product liability claims.Dissertation (LLM)--University of Pretoria, 2012.
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Erasmus, Christo. "Consumer protection in international electronic contracts / C. Erasmus." Thesis, North-West University, 2011. http://hdl.handle.net/10394/6917.
Full textAbstract:
Since the Internet became available for commercial use in the early 90s, the way of
doing business was changed forever. The Internet and electronic commerce have
allowed people to carry out business by means of electronic communications, which
makes it possible for them to do business and to conclude contracts with people
situated within foreign jurisdictions. The need for consumer protection in electronic
commerce has become necessary because of the misuse of aspects peculiar to
electronic–commerce. Consumers have been cautious to make use of electroniccommerce,
as they are uncertain about the consequences that their actions might
have. Consumers will only utilise e–commerce if they have confidence in the legal
system regulating it; therefore, legislation was needed to regulate their e–commerce
activities. In 2002, the Electronic Communications and Transactions Act, 2002 was
introduced into South African law as the first piece of legislation that would deal
exclusively with electronic communications. Chapter VII of this particular act deals
exclusively with consumer protection and seeks to remove certain uncertainties
imposed by e–commerce. This is done by providing the South African consumer with
statutory rights and obligations when engaging in electronic communications. The
Consumer Protection Act, 68 of 2008 is the most recent piece of legislation that aims
to promote a consistent legislative and enforcement framework relating to consumer
transactions and agreements. South African legislation dealing with electronic
commerce is relatively recent, and it is uncertain whether consumers are offered
sufficient protection when they conclude contracts with suppliers or sellers from a
foreign jurisdiction, that is, one that is situated outside South Africa.
After looking at the protection mechanisms in place for South African consumers
engaging in e–commerce, we have seen that there are certain problems that one
might experience when trying to determine the applicability of some of the consumer
protection measures to international electronic contracts. Most of the problems that
we have identified are practical of nature. Consumers may, for instance, find it hard
to execute their rights against foreign suppliers in a South African court, even if the
court has jurisdiction to adjudicate the matter. Another problem that we identified is
that some of the important terms in our legislation are too vaguely defined. Vague terms and definitions can lead to legal uncertainty, as consumers might find it hard to
understand the ambit of the acts, and to determine the applicability thereof on their
transactions. In order to look for possible solutions for South Africa, the author
referred to the legal position with regards to consumer protections in the United
Kingdom, and saw the important role that European Union legislation plays when
determining the legal position regarding consumer protection in the UK. The
legislation in the UK dealing with consumer protection is far more specific than the
South African legislation dealing with same. There is definitely consumer protection
legislation in place in South Africa but the ongoing technological changes in the
electronic commerce milieu make it necessary for our legislators to review consumer protection legislation on a regular basis to ensure that it offers sufficient protection
for South African consumers engaging in international electronic contracts.Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2012.
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Kruger, Heila Levina Helena Catharina. "The influence of the Consumer Protection Act 68 of 2008 on the common law obligations of the seller vis-à-vis risk and duty to take care, eviction, and defects." Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26660.
Full textAbstract:
This dissertation considers the possible influence of the Consumer Protection Act 68 of 2008 on the common law obligations of the seller vis-à-vis: 1) risk and duty to take care, 2) eviction and 3) defects. Before one can have a look at the influence of new legislation on the common law, it is necessary to first go backward to look at where it all started in order to understand any possible influence. In the first chapter there is therefore a historical overview of the common law in general as well as the law of contract. Reference is also made to the Roman law perspective as well as the Roman concept of contract; the Roman-Dutch law perspective as well as the Roman-Dutch concept of contract; and the South African law perspective as well as the South African concept of contract. In chapter 2 the common law and the law of contract is discussed in general with reference to concepts such as ownership, law of obligation, and the emptio venditio. Chapter 3 deals with the essence of this dissertation as we look at the common law obligations of the seller and in specific the risk and duty of the seller to take care of the thing sold until it is handed over to the buyer (factors that influence the duty to take care, passing of risk, and passing of risk in sales by way of consignment); the seller‟s warranty against eviction (including the obligations of the buyer when there is a threat of possible eviction); and the seller‟s warranty against latent defects (ex lege warranties, ex contractu warranties, the actio empti and the aedilitian actions). In chapter 4 there is a very short discussion on the influence of the Constitution of South Africa, 1996 in general as well as specifically on the law of contract. Chapter 5 deals with the influence of the Consumer Protection Act 68 of 2008 in general, specifically on the law of contract (why an Act to protect the interests of consumers?) and then the influence on risk and the seller‟s duty to take care of the thing sold (the consumer‟s right to return goods; the supplier‟s obligation to draw potential risk of an unusual character or that the consumer could not reasonably be expected to be aware of or that could result in serious injury or death to the attention of the consumer), the influence on the seller‟s warranty against eviction (the consumer‟s right to assume that the supplier is entitled to sell the goods; sections 44 and 51) and the influence on the seller‟s warranty against latent defects (disclosure of reconditioned or grey market goods; quality of goods). The conclusion follows in chapter 6.Dissertation (LLM)--University of Pretoria, 2012.
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Scott, Tshepiso. "The realisation of rights in terms of the Consumer Protection Act 68 of 2008." Thesis, 2018. http://hdl.handle.net/10500/25220.
Full textAbstract:
The thesis examines the enforcement of consumer rights in South Africa, and is set against the backdrop of the underlying principles and theories on the enforcement of consumer protection law. It then analyses the various forms of consumer protection law enforcement mechanisms that were in place prior to the implementation of the Consumer Protection Act 68 of 2008, and sets out why there was a need for the enactment of the Consumer Protection Act. The thesis then critically discusses the consumer protection law enforcement mechanisms introduced and/or catered for by the Consumer Protection Act.
The in-depth comparative analysis against the consumer protection law enforcement dispensations in both India and the United Kingdom culminates in a critical analysis of the successes and shortcomings of consumer protection law enforcement regime in present-day South Africa; as well as recommendations (in the form of legislative amendments and practical solutions) on how the South African consumer protection enforcement framework can be improved in order to facilitate the realisation of consumer rights.Mercantile Law
LL. D.
21
Swart, Isla. "Product liability class actions in terms of the Consumer Protection Act 68 of 2008." Diss., 2016. http://hdl.handle.net/2263/53193.
Full text
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Haneef, Raeesa. "Class actions : a proposed procedure in terms of the Consumer Protection Act 68 of 2008." Thesis, 2013. http://hdl.handle.net/10413/10918.
Full textAbstract:
Due to length and time constraints, this dissertation will briefly examine and provide an overview of the current method that courts have adopted in bringing a class action in Southern Africa and internationally. Specific focus will be on the Unites States of America, Australia and the Canadian province of Ontario. Challenges of bringing a class action will also be discussed, with a view of ascertaining the most appropriate or well-suited method of bringing a class action under the Consumer Protection Act 68 of 2008. The main issue that will be analysed will be the certification process. The key question to be answered is which approach or procedure, in dealing with the certification requirements under various jurisdictions, should South Africa adopt or incorporate into, class action procedure legislation? In chapter one I will introduce the concept of a class action as it is a relatively new concept found in South African consumer legislation. Different definitions of a class action will be discussed in context of particular statutes. I will define and highlight the purposes of a class action in South Africa and show why there is firstly, a need for such a procedure and secondly why there is a need for such procedure to be codified into legislation. In chapter two I will discuss certain important aspects of class actions. The purpose of this is to identify the main features of a class action. Ultimately, the purpose will be to discuss whether or not these features should be included in South African class actions. Chapter three will commence with the comparative perspective portion of this paper. The legislation adopted by the United States, will be discussed in chapter three followed by a discussion of the Ontario legislation in chapter four and the Australian legislation in chapter 5. The approaches that these jurisdictions have taken in respect of a class action procedure serve as a basis upon which a class action procedure for South Africa will be recommended. Chapter six will provide conclusions that have been drawn through analysis of the foreign jurisdictions’ class action procedures which will reflect the best and worst elements of a class action procedure. This is significant in determining what type of class action procedure would be best suited to South Africa. Chapter seven will highlight the current South African approach to class actions through an examination of case law and a Report by the South African Law Commission. This chapter will also analyse the short-comings in the South African approach through a critique of case law. In chapter eight of this paper I will propose an approach that South Africa should adopt with
regard to a class action procedure that is best suited to South Africa’s social climate. Finally, I will conclude with a summation of the arguments presented in this paper in chapter nine.Thesis (LL.M)-University of KwaZulu-Natal, Durban, 2013.
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Lombard, Marianne. "Regulation of fixed-term contracts under the South African Consumer Protection Act 68 of 2008." Thesis, 2020. http://hdl.handle.net/10500/26950.
Full textAbstract:
In this thesis the position of parties under a fixed-term agreement under section 14 of the Consumer Protection Act 68 of 2008 is analysed critically. The purpose of this thesis is first to establish whether parties to a fixed-term agreement are better protected in terms of section 14 of the CPA when the consumer needs to terminate the contract based on the material failure to perform by the supplier, than under the common law. Second, this thesis explores whether the maximum duration of fixed-term agreements should be limited by statute. Various aspects affecting parties to these agreements, for instance the freedom to contract, pacta servanda sunt, and standard-form agreements, are considered. The South African position is then compared to the position in Singapore under the Consumer Protection (Fair Trading) Act, and to the United Kingdom under the Consumer Rights Act, to gain perspective and objectively evaluate the provisions of section 14 of the Consumer Protection Act 68 of 2008 to establish whether South Africa can benefit from lessons learnt from these jurisdictions. Finally, principle-based amendments to the provisions of the CPA are recommended to improve the position of the consumer under fixed-term agreements to effect best practice solutions and ensure adherence to the aims and purposes of the Consumer Protection Act 68 of 2008 and international guidelines.
This thesis is based on the law as at 18 June 2020, found in sources available in South Africa, and Singaporean law available in the database of the National University of Singapore.Hierdie proefskrif is ’n kritiese analise van die posisie van partye tot vastetermynkontrakte ingevolge artikel 14 van die Suid-Afrikaanse verbruikersbeskermingswetgewing, die Consumer Protection Act 68 van 2008 (CPA). Die doel van die analise is eerstens om vas te stel of partye tot ’n vastetermynkontrak ingevolge artikel 14 van die CPA beter beskerming geniet ingevolge die CPA wanneer die verbruiker die vastetermynkontrak moet beëindig weens die wesenlike wanprestasie deur die verskaffer, as ingevolge die gemenereg. Tweedens ondersoek die proefskrif of dit wenslik is dat die maksimum duur van vastetermynkontrakte deur wetgewing beperk word. Verskeie aspekte wat die posisie van partye tot vastetermynkontrakte beïnvloed word ondersoek, onder andere kontrakteervryheid, die leerstuk pacta servanda sunt en standaardkontrakte. Die Suid-Afrikaanse posisie word dan vergelyk met dié in Singapoer, ingevolge die Consumer Protection (Fair Trading) Act (CPFTA), en die Verenigde Koninkryk, ingevolge die Consumer Rights Act (CRA) om perspektief te kry op die studie, en ten einde die bepalings van artikel 14 objektief te oorweeg om vas te stel of Suid-Afrika kan kersopsteek by hierdie jurisdiksies. Laastens word voorstelle gemaak om die posisie van die verbruiker tot vastetermynkontrakte ingevolge die CPA te verbeter om beste gebruikspraktyke te implementeer, en te verseker dat die doelwitte van die CPA en internasionale verbruikersriglyne bereik word. Hierdie studie weerspieël die regsposisie soos op 18 Junie 2020 in bronne wat plaaslik beskikbaar is, asook in bronne aan my beskikbaar gestel deur die Nasionale Universiteit van Singapoer tydens ’n navorsingsbesoek daar.
Kule thesisi isimo sezinhlangano ezingaphansi kwesivumelwano sesikhathi esinqunyiwe, ngaphansi kwesigaba 14 koMthetho 68 ka 2008, uMthetho weZokuvikelwa koMthengi uhlaziywa ngendlela egxekayo. Inhloso yalolu cwaningo ukusungula ukuthi mhlawumbe lezi zinhlangano ezingaphansi kwesivumelwano sesikhathi esinqunyiwe sivikeleke kangcono ngaphansi kwesigaba 14 se-CPA uma kunesidingo sabathengi sokuqedwa kwesivumelwano esencike phezu kokwehluleka ukwenza umsebenzi waloyo ongumthumeli wempahla, okwehlukile emthethweni owejwayelekile. Okwesibili, le thesis iphenya ukuthi mhlawumbe isikhathi isikhathi esinde sesivumelwano sesikhathi esinqunyiwe kufanele sincishiswe ngokomthetho oshayiwe. Izinto ezahlukahlukene ezithinta lezi zivumelwano, njengesibonelo, inkululeko yokungena esivumelwaneni pacta servanda sunt, kanye nesivumelwano ezingaguquki, kuyizinto ezibhekwayo. Isimo seNingizimu Afrika siqhathaniswa nesimo sezwe laseSingapore ngaphansi koMthetho wezokuVikelwa kwabaThengi (Fair Trading), kanye nasezweni laseUnited Kingdom ngaphansi koMthetho owaMalungelo abaThengi, ukuthola umqondo kanye nokuhlola izimiso ngaphansi kwesigaba 14 soMthetho 68 ka 2008, uMthetho oVikela abaThengi ukuthola ukuthi ngabe iNingizimu Afrika kukhona ekuzuzile kwizifundo ezifundwe kulezi zakhiwo zemithetho. Okokugcina, izichibiyelo ezisuselwe kwimigomo mayelana nalokho okushiwo yi-CPA inconywe ukuthi yenze ngcono isimo sezinhlangano ezingaphansi kwezivumelwano zesikhathi esinqunyiwe ukuletha izisombululo ezingcono kanye nokuqinisekisa ukuthi kulandelwa izinhloso kanye nemisebenzi yoMthetho 68 ka 2008, okunguMthetho oVikela abaThengi kanye nemihlahlandlela yezizwe zomhlaba. Lolu cwaningo lususelwe phezu komthetho kusukela mhla zi 18 uNhlangulana 2020, luyatholakala emithonjeni yaseNingizimu Afrika, kanye nomthetho waseSingapore uyatholakala emthonjeni yedatha yaseNational University of Singapore.
Mercantile Law
LL. D.
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Maree, Johannes Petrus Hermanus. "Die verkoper se verpligtinge kragtens die gemenereg en die "Consumer Protection Act 68 of 2008" (Afrikaans)." Diss., 2012. http://hdl.handle.net/2263/27893.
Full textAbstract:
The Consumer Protection Act (the CPA), 68 of 2008, has certainly evoked much debate and expectations in the consumer market. Most certainly, one of the most debated topics is how this new piece of legislation would influence common law of contract. Principles such as freedom to contract, caveat emptor and pacta servanda sunt, will from the effective date of this act certainly bear a new meaning. No longer will the consumer be faced with the might of the sword of the court's interpretation not to excuse contractual unfairness. The CPA seeks specifically to ensure contractual fairness through the principle of public policy and good faith, by promoting 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 CPA burdens the seller with rigid obligations and creates a plethora of rights available to the consumer. To a certain extent these rights and obligations are similar to the common law rights and obligations of the parties to an agreement of sale. But, in certain instances these rights and obligations differ in a considerable way. The main focus point of this dissertation is how the duties of a seller to an agreement of sale will be influenced and amended, either expressly or by implication. The study will start of with a brief discussion on the implementation and need for a Consumer Protection Act in South Africa, followed by the seller's common law obligations. Thereafter the systematic and application of the CPA will be set out, followed by an extensive discussion of the seller's obligations flowing from the CPA, as well as the specific differences as regards to the common law obligations. From here on, certain practical implications of the CPA will be discussed, followed by a general conclusion. CopyrightDissertation (LLM)--University of Pretoria, 2012.
Mercantile Law
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Barnard, Jacolien. "The influence of the Consumer Protection Act 68 of 2008 on the common law of sale." Thesis, 2013. http://hdl.handle.net/2263/32798.
Full textAbstract:
The purpose of this thesis is to investigate to what extent the Consumer Protection
Act 68 of 2008 (CPA) influences the common law of sale in South Africa. “Common
law of sale” refers to the essentialia of sale (the minimum characteristics that parties
must have consensus on to conclude a valid sale). The parties must have consensus
on the intention to buy and sell, the things sold and the purchase price. The common
law of sale also refers to the common law duties of the parties, the duties of the
seller in particular (conversely therefore the rights of the buyer). The primary duties
of the seller which will be investigated are: a. the duty of safe-keeping (including and investigation into the passing of benefit
and risk doctrine);
b. the duty of delivery and transfer of ownership;
c. the warranty against eviction; and
d. the warranty against latent defects.
The primary common law duties of the buyer to pay the purchase price and accept
the thing sold are included in the investigation as well. The formalities required in
certain sale agreements, that wording must be in plain language as well as the
buyer’s cooling-off rights are also investigated.
An investigation into the influence of the CPA on the common law of sale in
South Africa warrants a systematic framework and modus operandi which are:
a. an investigation into the historical background of the common law of sale and
its principles in the Roman law and Roman-Dutch law;
b. a critical analysis of the position where the CPA is not applicable (the
common law position);
c. an extensive analysis and critical evaluation of the relevant provisions of the
CPA and the influence thereof on the common law of sale;
d. a comparative analysis of the appropriate provisions in Scotland and Belgium; e. a conclusion of the influence of the CPA on the common law of sale (whether
the particular common law of sale principle is confirmed, amended or excluded in terms of the Act); and f. recommendations (taking into account the comparative analysis) regarding
the rectification of uncertainties and ambiguities that arose as a result of the
investigation.
It is also important to remember that the existing principles of the common law of
sale will still be applicable for transactions and agreements which fall outside the
application of the Act.
The golden rule to keep in mind when investigating the influence of the CPA
on the common law of sale is to determine which approach and interpretation will be
most beneficial to the consumer.Thesis (PhD)--University of Pretoria, 2013.
gm2013
Mercantile Law
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Stoop, Philip N. "The concept ‘fairness’ in the regulation of contracts under the Consumer Protection Act 68 of 2008." Thesis, 2013. http://hdl.handle.net/10500/8507.
Full textAbstract:
The thesis analyses the concept ‘fairness’ in consumer contracts regulated by the Consumer Protection Act 68 of 2008, mainly from the perspective of a freedom and fairness orientation. It discusses the evolution of ‘fairness’ as background to a more detailed
discussion of the classification of fairness into substantive and procedural fairness. The thesis examines dimensions of fairness, factors which play a role in the determination of fairness, and fairness- oriented approaches in an attempt to formulate a framework for fairness in
consumer contracts. The main aspects that should be taken into account to justify a finding of fairness, or to determine whether a contract is fair, are identified. This analysis addresses, too, the extent to which the fairness provisions of the Consumer Protection Act are appropriate (with reference to the law of South Africa, Europe, and England).Mercantile Law
LL.D.
27
Mbedzi, Donald Mashudu. "The challenges of consumers with regard to the implementation of Consumer Protection Act, 68 of 2008 in Thulamela Municipality." Diss., 2016. http://hdl.handle.net/11602/381.
Full text
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Nkabinde, Thandi. "The effect of the Consumer Protection Act 68 of 2008 on exemption clauses in standard-form contracts." Diss., 2015. http://hdl.handle.net/2263/50740.
Full textAbstract:
One of the reasons why the Consumer Protection Act 68 of 2008 (CPA) was enacted, was to protect consumers against suppliers who enforced onerous terms and conditions to the disadvantage of the consumer. Exemption clauses are amongst such onerous terms and conditions and according to Part G of the CPA (sections 48-52), exemption clauses must not be drafted on terms that are unjust, unfair and unreasonable. As almost all consumer agreements are drafted unilaterally in the form of standard-form contracts, this research will focus on the history of standard-form contracts and exemption clauses; the advantages and disadvantages of using them, landmark cases in which exemption clauses in standard-form contracts were dealt with, the effect of exemption clauses in standard-form contracts in light of the CPA and the legal remedies that are available to the consumer in instances where the supplier does not comply with the provisions of the CPA.
The research will focus on the criticisms that have been levelled against the CPA as well as recommendations on what the legislature can do to rectify some of the problems that have been associated with the CPA.Mini-dissertation (LLM)--University of Pretoria, 2015.
tm2015
Private Law
LLM
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Du, Plessis Chantal Hester. "Does the Consumer Protection Act 68 of 2008 have the effect of reviving the abolished exceptio doli generalis?" Diss., 2012. http://hdl.handle.net/2263/31140.
Full textAbstract:
The question to which this study will attempt to find a satisfactory answer, is whether the new
Consumer Protection Act 68 of 2008 (CPA) has revived the abolished exceptio doli generalis.
The exceptio doli was introduced in about 66 BC by the praetor Gaius Aquilius Gallus. An
exceptio was a legal defence to a claim. The exceptio doli required the judge to take account of
the fraud of which the plaintiff had been guilty of at the time of concluding the transaction, or of
the dolus of which the plaintiff was guilty in actually instituting the action.
It appears that the provisions of sections 40, 41 and 48 of the CPA reaffirm the existence of the
exceptio doli generalis in the South African law of contract, since these provisions provide the
same function and outcome that defence did. The section that speaks to the heart of the exceptio
doli generalis, is section 40(1) which provides that a supplier or an agent of the supplier must not
use physical force, coercion, undue influence, pressure, duress or harassment, unfair tactics or
any other similar conduct, in connection with the supply of services to a consumer and also in the
negotiation, conclusion, execution or enforcement of an agreement.
Section 52 of the Act deals with contraventions of sections 40, 41 and 48 of the Act. It grants the
ordinary courts the power to declare agreements, in whole or in part, unfair or unconscionable.
That only the ordinary courts would have jurisdiction in respect of unfair contract terms, is not
stated unequivocally, but is implicit in the absence of any reference to the NCT or provincial
consumer courts in section 52. It is a well-known fact that the costs, risks and effort of court
action are just too high for ordinary consumers, including middle class consumers. For this
reason it is unlikely that this legislation in its current form will have a real impact on the
eradication of unfair contract enforcement. What is suggested, is an amendment to section 52 in
order to bestow jurisdiction on the NCT and the consumer courts as well may also make any
further order it considers just and
As an alternative to the amendment of section 52, it is submitted that the legislature should create
a statutory rule, because it seems that the exceptio doli generalis as well as the CPA are not up to
the task. What is suggested, is legislation that deals specifically and exclusively with
unreasonableness, unconscionableness and oppressiveness in contracts or terms of contract. The
enactment of legislation dealing specifically with the problems previously dealt with by applying
the exceptio doli generalis, will ensure that legal certainty is created as to the availability of a
remedy in circumstances where the enforcement of a contract is unfair. This is in accordance
with the proposal made by the South African Law Commission’s Project 47.Dissertation (LLM)--University of Pretoria, 2012.
Private Law
LLM
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Du, Plessis Hanri Magdalena. "The unilateral determination of price in contracts of sale governed by the Consumer Protection Act 68 of 2008." Diss., 2012. http://hdl.handle.net/2263/26446.
Full textAbstract:
The purpose of this dissertation is to investigate the application of the common law rule prohibiting unilateral price determination in contracts of sale governed by the Consumer Protection Act. The unilateral determination of price has been a controversial issue for an extended period of time. This controversy is traced back to Roman law where different translations and interpretations are given to the texts dealing with the unilateral determination of price in a contract of sale. The majority of the Roman-Dutch writers preferred the view that regarded a contract granting a discretion to one of the parties to determine the price as void. Subsequently, this view was incorporated into South African law. During the 1990s the Supreme Court of Appeal questioned whether the rule should still form part of South African law. An overview of the case law indicates that the courts have been prepared to allow contractual price discretions provided such discretions refer to an objective external standard or reasonableness. There are also indications that the courts would imply that the discretion should be exercised reasonably, except in the case of clearly unfettered discretions. Recently, the Consumer Protection Act 68 of 2008 ("the CPA") has made substantial amendments to the law of sale in respect of contracts governed by the CPA. The dissertation investigates the influence of the CPA on the rule governing unilateral price determinations in such sales. It also investigates the consumer's fundamental rights to disclosure of information and fair, just and reasonable terms and conditions. Legal uncertainties and issues arising from the provisions of the CPA are identified. Finally, a comparative study with English law is undertaken which provides a comparative basis from which possible solutions are extracted and proposals made to address the uncertainties and issues emanating from the CPA. CopyrightDissertation (LLM)--University of Pretoria, 2012.
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Govender, Vasantha. "Consumer protection and service delivery by the retail industry in the greater Durban area : the legal implications of the Consumer Protection Act 68 of 2008." Thesis, 2017. http://hdl.handle.net/10321/2645.
Full textAbstract:
Submitted in fulfillment of the requirements of the Master’s Degree in Marketing, Durban University of Technology, 2017.As a result of weaker bargaining power, consumers are often exploited or treated unfairly in the business arena. Whilst consumer abuse is a global problem, South African consumers are more vulnerable due to various socio-economic conditions that affect their ability to negotiate equally in the marketplace. Factors such as poverty and illiteracy contribute to consumer abuse and is perpetuated by the discrimination which was inherent in the apartheid era. Accordingly, the Consumer Protection Act, 2008 (CPA) was promulgated to promote the respect for consumer rights, create awareness, enhance consumer protection and eliminate unfair and dishonest business practices which were prevalent at the time. This study aims to investigate the implications of consumer rights for service delivery within the retail sector. The main objective of this research was to explore the levels of awareness of consumer rights and to identify consumers’ expectations and perceptions of service delivery in relation to the CPA. The research design was quantitative in nature. A questionnaire was designed to assess the levels of awareness of rights and consumers’ expectations and perceptions of the service delivered by retailers, in relation to the service quality dimensions. Using convenience sampling, data was obtained from 337 respondents in the greater Durban area. Data was analysed using SPSS version 24.0 and interpreted using descriptive and inferential statistics. The findings of the gap analysis revealed that the respondents’ perceptions of service quality was consistently lower than their expectations, in respect of several dimensions of service quality. These negative gaps indicate that the level of the delivered service had fallen below the respondents’ expectations of service quality amongst retailers. This implies that respondents’ were dissatisfied with business compliance with provisions of the CPA. Businesses are hence encouraged to take steps to ensure legal compliance, thereby enhancing customer satisfaction and attaining higher levels of service excellence.
M
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Buys, Marius. "Select aspects relating to defenses to strict product liability as introduced by the Consumer Protection Act of 68 of 2008." Diss., 2016. http://hdl.handle.net/2263/53119.
Full textAbstract:
The Consumer Protection Act 68 of 2008 has extended consumer protection
to South African Consumers in various areas, notably also by introducing a
strict product liability regime . Quite a number of authors have already
investigated the parameters of the product liability regime introduced by
section 61 of the Act with emphasis on the absence of a requirement of
negligence and how this aspect has opened up access to redress for
consumers harmed by defective products. Although this dissertation provides
an overview of the new product liability regime introduced by the Consumer
Protection Act it has a very specific focus, namely to analyse the defences
available to the supply chain against product liability claims. The reason for
doing so is twofold: in the first instance it is necessary to appreciate that the
product liability regime introduced by the Act, although strict, is not absolute.
Hence the provision made in section 61 for a number of defences that may be
raised by the supply chain. Second, it is submitted that unless a balanced
approach to the issue of product liability is taken, consumers will suffer
because a product liability regime that does not provide for any defences to
product liability claims may stifle development and innovation to the
detriment of consumers. The dissertation thus investigates the closed list of
defences introduced by section 61(4) of the Act and compares them with the
statutory defences available under the EU Product Liability Directive in order
to draw conclusions regarding their content and adequacy within the realm
of modern product liability law.Mini Dissertation (LLM)--University of Pretoria, 2016.
Mercantile Law
LLM
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Gould, Carmen Yesmin. "Bringing the exceptio doli generalis back from the grave." Diss., 2012. http://hdl.handle.net/2263/30129.
Full textAbstract:
The exceptio doli generalis, which is the Roman law defence of “bad” faith, in the general form, has , until the decision of Bank of Lisbon and South Africa (SA) (Pty) Ltd, been one of the mechanisms that has been utilised by South African courts to apply abstract values of fairness and equity into the South African substantive law. The exceptio dolis generalis was available to a party in circumstances where the act of bringing the action by the other party constituted an act of “bad” faith. The court in the Bank of Lisbon and South Africa case decided that the exceptio doli generalis had never been received into Roman Dutch law and didn’t accept it as a defence that could be utilised and applied in South African law. After the decision in the Bank of Lisbon case there have been many differing views on whether the exceptio doli generalis can and should still be applied in South African law and concern in legal circles regarding the “gap” that the decision left in our law and the need to develop other means of ensuring greater fairness in the operation of the law of contract through possibly legislative intervention which at a stage was being investigated by the Law Commission. With the introduction of the Consumer Protection Act, Act 68 of 2008, the question which now comes to the fore is whether the Consumer Protection Act is a reintroduction of the exceptio doli generalis or whether the Act is merely a codification of the common law principles and abstract values of public policy/interest and good faith, which could mean one and the same thing. In order for this question to be answered an in depth investigation and study of theexceptio doli generalis, its applicability and development in South African law is required. Such a study is of importance in order for the aim and purpose of the defence to be properly understood. It is also necessary in order to understand how such a defence ties in and is closely linked with the abstract values and concepts of good faith and public policy/interest, which we have seen courts recognise in decisions subsequent to the Bank of Lisbon and South Africa case. Once this question is answered, attention will be turned to the Consumer Protection Act, its provisions and the effect thereof, and whether such provisions amount to the reintroduction of the exceptio dolis generalis but in an indirect way by the codification of the concepts of public policy/interest and good faith, which in turn could be the exceptio dolis generalis just called by a different name. The answer to this research question is very relevant and of extreme significance. It could mean that the South African legislature eventually got to doing what the legal profession has been asking of it for years and that is to put clarity on the defence of the exceptio doli generalis.Dissertation (LLM)--University of Pretoria, 2013.
Private Law
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Van, Heerden Robyn. "A Critical discussion of the impact of the right to fair value, good quality and safety in terms of the Consumer Protection Act 68 of 2008 on the Agricultural Industry in South Africa." Diss., 2013. http://hdl.handle.net/2263/36792.
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