| b) |
this Act does not otherwise provide a remedy sufficient to correct the relevant prohibited conduct, unfairness, injustice or unconscionability, |
the court, after considering the principles, purposes and provisions of this Act, and the matters set out in subsection (2), may make an order contemplated in subsection (3).
| 2) |
In any matter contemplated in subsection (1), the court must consider— |
| a) |
the fair value of the goods or services in question; |
| b) |
the nature of the parties to that transaction or agreement, their relationship to each other and their relative capacity, education, experience, sophistication and bargaining position; |
| c) |
those circumstances of the transaction or agreement that existed or were reasonably foreseeable at the time that the conduct or transaction occurred or agreement was made, irrespective of whether this Act was in force at that time; |
| d) |
the conduct of the supplier and the consumer, respectively; |
| e) |
whether there was any negotiation between the supplier and the consumer, and if so, the extent of that negotiation; |
| f) |
whether, as a result of conduct engaged in by the supplier, the consumer was required to do anything that was not reasonably necessary for the legitimate interests of the supplier; |
| g) |
the extent to which any documents relating to the transaction or agreement satisfied the requirements of section 22; |
| h) |
whether the consumer knew or ought reasonably to have known of the existence and extent of any particular provision of the agreement that is alleged to have been unfair, unreasonable or unjust, having regard to any— |
| ii) |
any previous dealings between the parties; |
| i) |
the amount for which, and circumstances under which, the consumer could have acquired identical or equivalent goods or services from a different supplier; and |
| j) |
in the case of supply of goods, whether the goods were manufactured, processed or adapted to the special order of the consumer. |
| 3) |
If the court determines that a transaction or agreement was, in whole or in part, unconscionable, unjust, unreasonable or unfair, the court may— |
| a) |
make a declaration to that effect; and |
| b) |
make any further order the court considers just and reasonable in the circumstances, including, but not limited to, an order— |
| i) |
to restore money or property to the consumer; |
| ii) |
to compensate the consumer for losses or expenses relating to— |
| aa) |
the transaction or agreement; or |
| bb) |
the proceedings of the court; and |
| iii) |
requiring the supplier to cease any practice, or alter any practice, form or document, as required to avoid a repetition of the supplier’s conduct. |
| 4) |
If, in any proceedings before a court concerning a transaction or agreement between a supplier and a consumer, a person alleges that an agreement, a term or condition of an agreement, or a notice to which a transaction or agreement is purportedly subject, is void in terms of this Act or failed to satisfy any applicable requirements set out in section 49, the court may— |
| i) |
in the case of a provision or notice that is void in terms of any provision of this Act— |
| aa) |
severing any part of the relevant agreement, provision or notice, or alter it to the extent required to render it lawful, if it is reasonable to do so having regard to the transaction, agreement, provision or notice as a whole; or |
| bb) |
declaring the entire agreement, provision or notice void as from the date that it purportedly took effect; or |
| ii) |
in the case of a provision or notice that fails to satisfy any provision of section 49, severing the provision or notice from the agreement, or declaring it to have no force or effect with respect to the transaction; and |
| b) |
make any further order that is just and reasonable in the circumstances with respect to that agreement, provision or notice, as the case may be. |
Public Finance Management Act, 1999
