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CPA unit 1 - 3
- Course
- VBB 220
- Institution
- University Of Pretoria (UP)
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VBB 220 – CPA Unit 1Introduction and background to the consumer protection act 68 of 2008
SUMMARY WOKER:
• Consumer protection measures existed prior to implementation of CPA:
• Existing legislation:
o Consumer Affairs, Unfair Business Practices Act, repealed by CPA.
o National Credit Act.
o Electronic Communications and Transactions Act.
o Alienation of Land Act.
o Problem: Scattered and inconsistent. Only applied to certain consumer
agreements.
• Industry self-regulation:
o Where particular industry established governing body and own code of
conduct
o Penalties apply for non-compliance.
o Advertising Industry, Debt Collectors, Direct Marketers etc.
o Problem: Membership to industry regulation compulsory, difficult to
enforce.
• Common law principles:
o Bona fides.
o Public policy.
o Ex lege warranties, warranty against latent defects, warranty against
eviction.
o Problem: May be excluded contractually, “as is” or voetstoots clause.
Freedom of contract, pacta sunt servanda, sanctity of contract -> CPA
against voetstoots + does NOT protect consumer
• Umbrella and comprehensive legislation is needed despite above.
o NB: CPA is always used with legislation/common law -> NEVER
ALONE!
, SUMMARY HAWTHORNE:
• New constitutional dispensation and introduction of democracy heralded new
beginnings for areas of private law:
o family law
o property law
o law of delict BUT constitutional justice slow in within law of contract and
consumer law
• Reconciling the different paradigms within the law of contract has been left to
the courts and the legislator
• WHY?
o On the one hand: Classical model and theory approach which are
based on party autonomy, freedom of contract, minimal supervision
over parties between contracting parties, pacta sunt servanda
o On the other: Neo liberalism & fairness approach which attempts to
rectify unequal bargaining positions, introduces Consumer Protection
legislation
• Even after introduction of Constitution SA courts continued to apply classical
model approach
o Brisley v Drotsky
o Afrox Healthcare Bpk v Strydomo
o Barkhuizen v Napier
• Legislation such as the CPA attempts to provide a balance in a free-market
landscape.
o How? By introducing procedural and substantive fairness.
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