Enforcement and Effectiveness of Consumer Law in South Africa

Abstract

This contribution considers the enforcement and effectiveness of South African consumer law. It first sets out the legal and policy framework, including the most important legislation and strategic plans of some institutions tasked with enforcement. Thereafter specialist enforcement agencies are considered, including the National Consumer Commission and Financial Services Board. Experience with enforcement by these bodies, including statistics on complaints handling are discussed. Provincial consumer protection bodies are considered next, including the conundrum of whether provincial legislation, as opposed to national legislation, can grant judgments of the provincial consumer courts the same effect as that of the ordinary courts. The discussion of alternative dispute resolution focuses particularly on the various ombuds accredited under the Consumer Protection Act, 68 of 2008, as well as ombuds in the financial services sector. Statistics on their complaints handling are also supplied. Thereafter enforcement by the courts are discussed, including the problematic view of the National Consumer Tribunal that only the ordinary courts may decide on "contractual disputes", as well as the unconstitutionality of s 69 which does not allow consumers to immediately access the accessible small claims courts. After discussing collective redress actions, it is noted that consumer organisations have played a limited role in the enforcement of consumer law thus far. Private regulation through voluntary sectoral codes of conduct is considered, and thereafter sanctions for violations of consumer law. External relations and cooperation of the State, enforcers and consumer organisations are addressed before conclusions are drawn as to the effectiveness of the enforcement mechanisms. 1. Principal legal and policy framework 1.1. Legislation and common law South Africa does not have one unified law on consumer protection. The broadest legislation is the Consumer Protection Act ("CPA"), which came into force in 2011. 1 This Act recognises 10 consumer rights, 2 which echo those recognised in the UN Guidelines for Consumer Protection and by Consumers