Intellectual Property Rights from Publicly Financed Research and
R 385
Consumer Protection Act, 2008 (Act No. 68 of 2008)Chapter 1 : Interpretation, Purpose and ApplicationPart B : Purpose, policy and application of Act5. Application of Act |
| 1) | This Act applies to— |
| a) | every transaction occurring within the Republic, unless it is exempted by subsection (2), or in terms of subsections (3) and (4); |
| b) | the promotion of any goods or services, or of the supplier of any goods or services, within the Republic, unless— |
| i) | those goods or services could not reasonably be the subject of a transaction to which this Act applies in terms of paragraph (a); or |
| ii) | the promotion of those goods or services has been exempted in terms of subsections (3) and (4); |
| c) | goods or services that are supplied or performed in terms of a transaction to which this Act applies, irrespective of whether any of those goods or services are offered or supplied in conjunction with any other goods or services, or separate from any other goods or services; and |
| d) | goods that are supplied in terms of a transaction that is exempt from the application of this Act, but only to the extent provided for in subsection (5). |
| 2) | This Act does not apply to any transaction— |
| a) | in terms of which goods or services are promoted or supplied to the State; |
| b) | in terms of which the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold value determined by The Minister in terms of section 6; |
| c) | if the transaction falls within an exemption granted by the Minister in terms of subsections (3) and (4); |
| d) | that constitutes a credit agreement under the National Credit Act, but the goods or services that are the subject of the credit agreement are not excluded from the ambit of this Act; |
| e) | pertaining to services to be supplied under an employment contract; |
| f) | giving effect to a collective bargaining agreement within the meaning of section 23 of the Constitution and the Labour Relations Act, 1995 (Act No. 66 of 1995); or |
| g) | giving effect to a collective agreement as defined in section 213 of the Labour Relations Act, 1995 (Act No. 66 of 1995) |
| 3) | A regulatory authority may apply to the Minister for an industry-wide exemption from one or more provisions of this Act on the grounds that those provisions overlap or duplicate a regulatory scheme administered by that regulatory authority in terms of— |
| a) | any other national Iegislation; or |
| b) | any treaty, international law, convention or protocol. |
| 4) | The Minister, by notice in the Gazette after receiving the advice of the Commission, may grant an exemption contemplated in subsection (3)— |
| a) | only to the extent that the relevant regulatory scheme ensures the achievement of the purposes of this Act at least as well as the Provisions of this Act; and |
| b) | subject to any limits or conditions necessary to ensure the achievement of the purposes of this Act. |
| 5) | If any goods are supplied within the Republic to any person in terms of a transaction that is exempt from the application of this Act, those goods, and the importer or producer, distributor and retailer of those goods, respectively, are nevertheless subject to sections 60 and 61. |
| 6) | For greater certainty, the following arrangements must be regarded as a transaction between a supplier and consumer, within the meaning of this Act; |
| a) | The supply of any goods or services in the ordinary course of business to any of its members by a club, trade union, association, society or other collectivity, whether corporate or unincorporated, of persons; voluntarily associated and organised for a common purpose or purposes, whether for fair value consideration or otherwise, irrespective of whether there is a charge or economic contribution demanded or expected in order to become or remain a member of that entity; |
| b) | a solicitation of offers to enter into a franchise agreement; |
| c) | an offer by a potential franchisor to enter into a franchise agreement with a potential franchisee; |
| d) | a franchise agreement or an agreement supplementary to a franchise agreement; and |
| e) | the supply of any goods or services to a franchisee in terms of a franchise agreement. |
| 7) | Despite subsection (2)(b), this Act applies to a transaction contemplated in subsection (6)(b) to (e) irrespective of whether the size of the juristic person falls above or below the threshold determined in terms of section 6 |
| 8) | The application of this Act in terms of subsections (1) to (7) extends to a matter irrespective of whether the supplier— |
| a) | resides or has its principal office within or outside the Republic; |
| b) | operates on a for-profit basis or otherwise; or |
| c) | is an individual, juristic person, partnership, trust, organ of state, an entity owned or directed by an organ of state, a person contracted or licensed by an organ of state to offer or supply any goods or services, or is a public-private partnership; or |
| d) | is required or licensed in terms of any public regulation to make the supply of the particular goods or services available to all or part of the public. |
