Consumer Protection Act, 2008 (Act No. 68 of 2008)

Chapter 1 : Interpretation, Purpose and Application

Part A : Interpretation

1. Definitions

Purchase

In this Act—

"accredited consumer protection group"

means a consumer protection group that has been accredited by the Commission in terms of section 78 for the purposes contemplated in that section or elsewhere in this Act;

"advertisement"

means any direct or indirect visual or oral communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium, by means of which a person seeks to—

(a)	bring to the attention of all or part of the public—

(i)	the existence or identity of a supplier; or

(ii)	the existence, nature, availability, properties, advantages or uses of any goods or services that are available for supply, or the conditions on, or prices at which any goods or services are available for supply;

(b)	promote the supply of any goods or services; or

"agreement"

means an arrangement or understanding between or among two or more parties that purports to establish a relationship in law between or among them;

"alternative dispute resolution agent"

means—

a)	an ombud with jurisdiction;

b)	an industry ombud accredited in terms of section 82(6); or

c)	a person or entity providing conciliation, mediation or arbitration services to assist in the resolution of consumer disputes, other than an ombud with jurisdiction, or an accredited industry ombud;

"applicable provincial consumer legislation"

means legislation concerning consumer protection that has been enacted by a province;

"apply"

when used in relation to a trade description, price, notice or any similar form or information, means to emboss, impress, engrave, etch, print or weave into, work into or onto, annex or affix to, or incorporate within;

"business"

means the continual marketing of any goods or services;

"business name"

means a name under which a person carries on a business other than the person's full name;

"Cabinet"

means the body of the national executive described in section 91 of the Constitution;

"clearly"

in relation to the quality of any text, notice or visual representation to be produced, published or displayed to a consumer, means in a form that satisfies the requirements of section 22;

"Commission"

means the National Consumer Commission established by section 85;

"complainant"

means—

a)	a person who has filed a complaint with the Commission in terms of section 71; or

b)	the Commission in respect of a complaint that it has initiated, either directly or at the—

i)	direction of the Minister in terms of section 86(b); or

ii)	request of a provincial consumer protection authority or other regulatory authority, as the case may be;

"consideration"

means anything of value given and accepted in exchange for goods or services, including—

a)	money, property, a cheque or other negotiable instrument, a token, a ticket, electronic credit, credit, debit or electronic chip or similar object;

b)	labour, barter or other goods or services;

c)	loyalty credit or award, coupon or other right to assert a claim; or

d)	any other thing, undertaking, promise, agreement or assurance,

irrespective of its apparent or intrinsic value, or whether it is transferred directly or indirectly, or involves only the supplier and consumer or other parties in addition to the supplier and consumer;

"Constitution"

means the Constitution of the Republic of South Africa, 1996;

"consumer"

in respect of any particular goods or services, means—

a)	a person to whom those particular goods or services are marketed in the ordinary course of the supplier's business;

b)	a person who has entered into a transaction with a supplier in the ordinary course of the supplier's business, unless the transaction is exempt from the application of this Act by section 5(2) or in terms of section 5(3);

c)	if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and

d)	a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e);

"consumer agreement"

means an agreement between a supplier and a consumer other than a franchise agreement;

"consumer court"

means a body of that name, or a consumer tribunal, that has been established in terms of applicable provincial consumer legislation;

"consumer protection group"

means an entity promoting the interests or protection of consumers as contemplated in section 77;

"court"

does not include a consumer court;

"direct marketing"

means to approach a person, either in person or by mail or electronic communication, for the direct or indirect purpose of—

a)	promoting or offering to supply, in the ordinary course of business, any goods or services to the person; or

b)	requesting the person to make a donation of any kind for any reason;

"display"

when used—

a)	in relation to any goods, means placing, exhibiting or exposing those goods before the public in the ordinary course of business in a manner consistent with an open invitation to members of the public to inspect, and select, those or similar goods for supply to a consumer: or

b)	in relation to a price, mark, notice or other visual representation, means to place or publish anything in a manner that reasonably creates an association between that price, mark, notice or other visual representation and any particular goods or services;

"distributor"

in relation to any particular goods, means a person who, in the ordinary course of business—

a)	is supplied with those goods by a producer, importer or other distributor; and

b)	in turn, supplies those goods to either another distributor or to a retailer;

"electronic communication"

means communication by means of electronic transmission, including by telephone, fax, sms, wireless computer access, email or any similar technology or device;

"Electronic Communications and Transactions Act"

means the Electronic Communications and Transactions Act, 2002 (Act No.25 of 2002);

"estimate"

means a statement of the projected total price for any service to be provided by a supplier, including any goods or components to be supplied in connection with that service;

"equality court"

has the meaning set out in the Promotion of Equality and Prevention of Unfair Discrimination Act;

"facility"

means any premises, space or equipment set up to fulfil a particular function, or at, in, or on which a particular service is available;

"franchise agreement"

means an agreement between two parties, being the franchisor and franchisee, respectively—

in which, for consideration paid, or to be paid, by the franchisee to the franchisor, the franchisor grants the franchisee the right to carry on business within all or a specific part of the Republic under a system or marketing plan substantially determined or controlled by the franchisor or an associate of the franchisor;

under which the operation of the business of the franchisee will be substantially or materially associated with advertising schemes or programmes or one or more trade marks, commercial symbols or logos or any similar marketing, branding, labelling or devices, or any combination of such schemes, programmes or devices, that are conducted, owned, used or licensed by the franchisor or an associate of the franchisor; and

c)	that governs the business relationship between the franchisor and the franchisee, including the relationship between them with respect to the goods or services to be supplied to the franchisee by or at the direction of the franchisor or an associate of the franchisor;

"goods"

includes—

a)	anything marketed for human consumption;

b)	any tangible object not otherwise contemplated in paragraph (a), including any medium on which anything is or may he written or encoded;

c)	any literature, music, photograph, motion picture, game, information, data, software, code or other intangible product written or encoded on any medium, or a licence to use any such intangible product;

d)	a legal interest in land or any other immovable property, other than an interest that falls within the definition of 'service' in this section; and

e)	gas, water and electricity;

"importer"

with respect to any particular goods, means a person who brings those goods, or causes them to be brought, from outside the Republic into the Republic, with the intention of making them available for supply in the ordinary course of business;

"inspector"

means a person appointed as such in terms of section 88;

"intermediary"

means a person who, in the ordinary course of business and for remuneration or gain, engages in the business of—

a)	representing another person with respect to the actual or potential supply of any goods or services;

b)	accepting possession of any goods or other property from a person for the purpose of offering the property for sale; or

c)	offering to sell to a consumer, soliciting offers for or selling to a consumer any goods or property that belongs to a third person, or service to be supplied by a third person,

but does not include a person whose activities as an intermediary are regulated in terms of any other national legislation;

"investigator"

means a person appointed as such in terms of section 88;

"juristic person"

includes—

a)	a body corporate;

b)	a partnership or association; or

c)	a trust as defined in the Trust Property Act, 1988 (Act No. 57 of 1988);

"licence"

depending on the context, means the authority, regardless of its specific title or form, issued to a person and in terms of which that person is either—

a)	authorised in terms of a public regulation to conduct business; or

b)	authorised by another person to—

i)	access any facility or use any goods or

ii)	supply any goods or services;

"loyalty credit or award"

means any—

a)	benefit accruing to a consumer;

b)	right to any goods, service or other benefit granted to a consumer; or

c)	point, credit, token, device or other tangible or intangible thing which, when accumulated in sufficient quantities, entitles the holder to seek, request or assert a claim for any goods, service or other benefit, allocated to a consumer,

in terms of a loyalty programme, irrespective of the name, nature, form or characterisation assigned by that loyalty programme to any such goods, service or other benefit, right or thing;

"loyalty programme"

means any arrangement or scheme in the ordinary course of business, in terms of which a supplier of goods or services, association of such suppliers, or other person on behalf of or in association with any such suppliers, offers or grants to a consumer any loyalty credit or award in connection with a transaction or an agreement;

"mark"

when used as a noun, means any visual representation, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or other sign capable of being represented graphically, or any combination of those things, but does not include a trade mark;

"market"

when used as a verb, means to promote or supply any goods or services:

"MEC"

means the Member of the Executive Council;

"Minister"

means the member of the Cabinet responsible for consumer protection matters;

"National Credit Act"

means the National Credit Act, 2005 (Act No. 34 of 2005);

"ombud with jurisdiction"

in respect of any particular dispute arising out of an agreement or transaction between a consumer and a supplier who is—

a)	subject to the jurisdiction of an 'ombud, or a 'statutory ombud', in terms of any national legislation, means that ombud, or statutory ombud; or

b)	a 'financial institution', as defined in the financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004), means 'the ombud' as determined in accordance with section 13 or 14 of that Act;

"organ of state"

means an organ of state as defined in section 239 of the Constitution;

"person"

includes a juristic person;

"premises"

includes land, or any building, structure, vehicle, ship, boat, vessel, aircraft or container;

"prescribed"

means determined, stipulated, required, authorised, permitted or otherwise regulated by a regulation made or notice given, by the Minister in terms or this Act;

"price"

when used in relation to—

a representation required to be displayed by section 23, includes any mark, notice or visual representation that may reasonably he inferred to indicate or express an association between any goods or services and the value of the consideration for which the supplier is willing to sell or supply those goods or services; or

b)	the consideration for any transaction, means the total amount paid or payable by the consumer to the supplier in terms of that transaction or agreement, including any amount that the supplier is required to impose, charge or collect in terms of any public regulation;

"producer"

with respect to any particular goods, means a person who—

a)	grows, nurtures, harvests, mines, generates, refines, creates, manufactures or otherwise produces the goods within the Republic, or causes any of those things to be done, with the intention of making them available for supply in the ordinary course of business; or

b)	by applying a personal or business name, trade mark, trade description or other visual representation on or in relation to the goods, has created or established a reasonable expectation that the person is a person contemplated in paragraph (a);

"prohibited conduct"

means an act or omission in contravention of this Act;

"promote"

means to—

a)	advertise, display or offer to supply any goods or services in the ordinary course or business, to all or part of the public for consideration;

b)	make any representation in the ordinary course of business that could reasonably be inferred as expressing a willingness to supply any goods or services for consideration; or

c)	engage in any other conduct in the ordinary course of business that may reasonably be construed to be an inducement or attempted inducement to a person to engage in a transaction;

"Promotion of Equality and Prevention of Unfair Discrimination Act"

means the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000);

"provincial consumer protection authority"

means a body established within the provincial sphere of government, and designated by the responsible Member of the Executive Council of a province to have general authority to deal with consumer protection matters within that province;

"public regulation"

means any national, provincial or local government legislation or subordinate legislation, or any licence, tariff, directive or similar authorisation issued by a regulatory authority or pursuant to any statutory authority;

"Registrar"

means the Registrar of Companies appointed in terms of the Companies Act, 1973 (Act No. 61 of 1973), or the official performing similar functions in terms of any subsequent legislation;

"regulation"

means a regulation made under this Act;

"regulatory authority"

means an organ of state or entity established in terms of national or provincial legislation responsible for regulating an industry, or sector of an industry;

"rental"

means an agreement for consideration in the ordinary course of business, in terms of which temporary possession of any premises or other property is delivered, at the direction of, or to the consumer, or the right to use any premises or other property is granted, at the direction of or to the consumer, but does not include a lease within the meaning of the National Credit Act;

"repealed law"

means an Act mentioned in section 121(2), or a public regulation made in terms of such an Act;

"respondent"

means a person or firm against whom a complaint or application has been initiated in terms of this Act;

"retailer"

with respect to any particular goods, means a person who, in the ordinary course of business, supplies those goods to a consumer;

"service"

includes, but is not limited to—

a)	any work or undertaking performed by one person for the direct or indirect benefit of another;

b)	the provision of any education, information, advice or consultation, except advice that is subject to regulation in terms of the Financial Advisory and lntermediary Services Act, 2002 (Act No.37 of 2002);

c)	any banking services, or related or similar financial services, or the undertaking, underwriting or assumption of any risk by one person on behalf of another, except to the extent that any such service—

i)	constitutes advice or intermediary services that is subject to regulation in terms of the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002); or

ii)	is regulated in terms of the Long-term Insurance Act, 1998 (Act No. 52 of 1998), or the Short-term Insurance Act, 1998 (Act No. 53 of 1998);

d)	the transportation of an individual or any goods;

e)	the provision of—

i)	any accommodation or sustenance;

ii)	any entertainment or similar intangible product or access to any such entertainment or intangible product;

iii)	access to any electronic communication infrastructure;

iv)	access, or of a right of access, to an event or to any premises, activity or facility; or

v)	access to or use of any premises or other property in terms of a rental;

f)	a right of occupancy of, or power or privilege over or in connection with, any land or other immovable property, other than in terms of a rental; and

g)	rights of a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e),

irrespective of whether the person promoting, offering or providing the services participates in, supervises or engages directly or indirectly in the service;

"service provider"

means a person who promotes, supplies or offers to supply any service;

"sms"

means a short message service provided through a telecommunication system;

"special-order goods"

means goods that a supplier expressly or implicitly was required or expected to procure, create or alter specifically to satisfy the consumer's requirements;

"supplier"

means a person who markets any goods or services;

"supply"

when used as a verb—

a)	in relation to goods, includes sell, rent, exchange and hire in the ordinary course of business for consideration; or

b)	in relation to services, means to sell the services, or to perform or cause them to be performed or provided, or to grant access to any premises, event, activity or facility in the ordinary course of business for consideration;

"supply chain"

with respect to any particular goods or services, means the collectivity of all suppliers who directly or indirectly contribute in turn to the ultimate supply of those goods or services to a consumer, whether as a producer, importer, distributor or retailer of goods, or as a service provider;

"this Act"

includes any Schedule to this Act, regulations made or notice issued by the Minister under this Act;

"trade description"

means—

a)	any description, statement or other direct or indirect indication, other than a trade mark, as to—

i)	the number, quantity, measure, weight or gauge of any goods;

ii)	the name of the producer or producer of any goods;

iii)	the ingredients of which any goods consist, or material of which any goods are made;

iv)	the place or country of origin of any goods;

v)	the mode of manufacturing or producing any goods; or

vi)	any goods being the subject of any patent, privilege or copyright; or

b)	any figure, work or mark, other than a trade mark, that, according to the custom of the trade, is commonly understood to be an indication of any matter contemplated in paragraph (a);

"trade mark"

means—

a)	a trade mark as defined in section 2(1) of the Trade Marks Act, 1993 (Act No. 194 of 1993); or

b)	a well-known trade mark as contemplated in section 35 of the Trade Marks Act, 1993;

"transaction"

means—

a)	in respect of a person acting in the ordinary course of business—

i)	an agreement between or among that person and one or more other persons for the supply or potential supply of any goods or services in exchange for consideration; or

ii)	the supply by that person of any goods to or at the direction of a consumer for consideration; or

iii)	the performance by, or at the direction of, that person of any services for or at the direction of a consumer for consideration; or

b)	an interaction contemplated in section 5(6), irrespective of whether it falls within paragraph (a);

"Tribunal"

means the National Consumer Tribunal established by section 26 of the National Credit Act;

"unconscionable"

when used with reference to any conduct, means—

a)	having a character contemplated in section 40; or

b)	otherwise unethical or improper to a degree that would shock the conscience of a reasonable person;

"unit price"

means a price for any goods or services expressed in relation to a well-known measure such as quantity, weight, volume, duration or other measurable unit by which the goods or services are allocated;

"used goods"

when used in respect of any goods being marketed, means goods that have been previously supplied to a consumer, but does not include goods that have been returned to the supplier in terms of any right of return contemplated in this Act; and

"visual representation"

means any representation or illustration capable of being reproduced upon a surface, whether by printing or otherwise, but does not include a trade mark.