A comparative and critical discussion of the redress available to consumers by consumer courts in terms of the Consumer Protection Act 68 of 2008

Abstract

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.