Intellectual Property Rights from Publicly Financed Research and
R 385
Consumer Protection Act, 2008 (Act No. 68 of 2008)Chapter 2 : Fundamental Consumer RightsPart G : Right to fair, just and reasonable terms and conditions51. Prohibited transactions, agreements, terms or conditions |
| 1) | A supplier must not make a transaction or agreement subject to any term or condition if— |
| a) | its general purpose or effect is to— |
| i) | defeat the purposes and policy of this Act; |
| ii) | mislead or deceive the consumer; or |
| iii) | subject the consumer to fraudulent conduct; |
| b) | it directly or indirectly purports to— |
| i) | waive or deprive a consumer of a right in terms of this Act; |
| ii) | avoid a supplier’s obligation or duty in terms of this Act; |
| iii) | set aside or override the effect of any provision of this Act; or |
| iv) | authorise the supplier to— |
| aa) | do anything that is unlawful in terms of this Act; or |
| bb) | fail to do anything that is required in terms of this Act; |
| c) | it purports to— |
| i) | limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier; |
| ii) | constitute an assumption of risk or liability by the consumer for a loss contemplated in subparagraph (i); or |
| iii) | impose an obligation on a consumer to pay for damage to, or otherwise assume the risk of handling, any goods displayed by the supplier, except to the extent contemplated in section 18(1); |
| d) | it results from an offer prohibited in terms of section 31; |
| e) | it requires the consumer to enter into a supplementary agreement, or sign a document, prohibited by subsection (2)(a); |
| f) | it purports to cede to any person, charge, set off against a debt, or alienate in any manner, a right of the consumer to any claim against the Guardian’s Fund; |
| g) | it falsely expresses an acknowledgement by the consumer that— |
| i) | before the agreement was made, no representations or warranties were made in connection with the agreement by the supplier or a person on behalf of the supplier; or |
| ii) | the consumer has received goods or services, or a document that is required by this Act to be delivered to the consumer; |
| h) | it requires the consumer to forfeit any money to the supplier— |
| i) | if the consumer exercises any right in terms of this Act; or |
| ii) | to which the supplier is not entitled in terms of this Act or any other law; |
| i) | it expresses, on behalf of the consumer— |
| i) | an authorisation for any person acting on behalf of the supplier to enter any premises for the purposes of taking possession of goods to which the agreement relates; |
| ii) | an undertaking to sign in advance any documentation relating to enforcement of the agreement, irrespective of whether such documentation is complete or incomplete at the time it is signed; or |
| iii) | a consent to a predetermined value of costs relating to enforcement of the agreement, except to the extent that is consistent with this Act; or |
| j) | it expresses an agreement by the consumer to— |
| i) | deposit with the supplier, or with any other person at the direction of the supplier, an identity document, credit or debit card, bank account or automatic teller machine access card, or any similar identifying document or device; or |
| ii) | provide a personal identification code or number to be used to access an account. |
| 2) | A supplier may not— |
| a) | directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision contemplated in subsection (1); |
| b) | request or demand a consumer to— |
| i) | give the supplier temporary or permanent possession of an instrument referred to in subsection (1)(j)(i) other than for the purpose of identification, or to make a copy of such instrument; or |
| ii) | reveal any personal identification code or number contemplated in subsection (1)(j)(ii); or |
| c) | direct, or knowingly permit, any other person to do anything referred to in this section on behalf or for the benefit of the supplier. |
| 3) | A purported transaction or agreement, provision, term or condition of a transaction or agreement, or notice to which a transaction or agreement is purported to be subject, is void to the extent that it contravenes this section. |
| 4) | This section does not preclude a supplier to require a personal identification code or number in order to facilitate a transaction that in the normal course of business necessitates the provision of such code or number. |
