Transcript Slide 1

PUBLIC CONSULTATION ON THE KZN
CONSUMER PROTECTION BILL 2010
DEPARTMENT OF ECONOMIC DEVELOPMENT AND TOURISM
INDUSTRIAL DEVELOPMENT & BUSINESS REGULATIONS
BUSINESS REGULATIONS UNIT:
CONSUMER PROTECTION SERVICES
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Table of content
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Introduction
Background
CPA and Expectations on Provinces
KZN Consumer Protection Bill
Chapters of the Bill
Discussions
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Introduction
• The history of South Africa and its discriminatory laws of
the past have burdened the nation with unacceptable
high levels of poverty, illiteracy and other forms of social
and economic inequalities;
• Consumers in South Africa are amongst the most
vulnerable in the World
• As a result it was necessary to develop and employ
innovative means to fulfill the rights of historically
disadvantaged persons
• Promote their full participation as consumers
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Introduction continues
• Protect the interest of all consumers in the Province
• Ensure accessible, transparent and efficient redress for
consumers who are subjected to abuse or exploitation in
the market place
• To give effect to internationally recognized consumer
rights as one of the major tourist attraction Province
• To promote an economic environment that supports and
strengthens the culture of consumer rights and
responsibilities
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Background
• Consumer Protection is an area of concurrent
competency between the National and Provincial
Government. (Constitutional mandate)
• The National Office (NCC) has the responsibility of
setting the norms and standards to be followed by
Provinces
• At the National level we had the “Unfair Business
Practices Act, No. 71 of 1988”
• Most Provinces developed legislation which was the
mirror image of the Unfair Business Practices Act
• The Act was more enabling and allowed for the general
investigations of unfair business practices
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Background continues
• The focus was mainly on the unfair business practices
rather than giving consumers access to redress
• KZN, NW,EC and NC were some of the Provinces which
did not have consumer Protection legislation.
• The Provincial legislations in the other five Provinces
allowed for the establishment of the office of the
Consumer Protector as well as consumer Tribunals
• KZN had a draft bill which was not initially aligned to the
necessary procedures as is required in terms of the
National Consumer protection Act.
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Background continues
• Developments in the consumer protection saw the
promulgation of the National Credit Act, No. 34 of 2005,
which established the of the National Consumer Tribunal
to deal with consumer and credit related matters
• One of the major and significant changes in consumer
protection came with the enactment of Consumer
Protection Act, No.68 of 2008
• The enforcement of which had been deferred to the
beginning of April 2011.
• The CPA imposes an obligation on all spheres of
Government to work together in the spirit of cooperation
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CPA and Expectations from the
Provinces
• CPA, as a National legislation is applicable throughout
the Republic
• A consumer protection authority has jurisdiction within its
Province
• Issue compliance notices on behalf of the National
Consumer Commission (NCC)
• Facilitate the mediation or conciliation of disputes arising
in terms of the CPA (ADR agents)
• Refer dispute to the Provincial Consumer Court/ Tribunal
• Request the NCC to initiate complaints on prohibited
conduct.
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Promotion of Legislative Reform
Section 94 (a) and (b) – In order to better achieve the purposes of this Act (CPA)
in relation to laws that govern matters affecting consumers, the NCC must identify any
national or provincial legislation, or other public regulation, that –
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affects the welfare of consumers; and
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is inconsistent with the purposes of this Act; including Consumer Protection
legislations in the Provinces to ensure alignment.
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The NCC must consult with relevant provincial consumer protection authorities
to ensure alignment and also ensure that they will be a position to enforce the
CPA together with their Provincial legislations.
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The Discussions between the NCC and the Provinces are underway
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Schedule 2 item 7 (Transitional
Arrangements)
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Until provincial legislation has been enacted in a province establishing for that
province a provincial consumer protection authority as contemplated in this Act,
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the Minister, by notice in the Gazette, may delegate to the relevant member of the
Executive Council (MEC) of that province,
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any or all of the functions of the National Consumer Commission to be
exercised within that province and in accordance with this Act.
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KZN CONSUMER
PROTECTION BILL, 2010
• To provide for the establishment of the Office of the Consumer
Protector,
• the establishment of the Consumer Tribunal, and to provide for
matters connected therewith
• to determine the objects, powers, duties and functions of the
Office of the Consumer Protector,
• to provide for the investigations of consumer complaints,
providing access to redress for consumers, consumer
education and create awareness about consumer rights and
responsibilities,
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Purpose and Policy of the KZN
Consumer Protection Bill 2010
To promote and advance the social and economic welfare of all consumers in
the Province by • establishing a legal framework for the achievement and maintenance of a
consumer market that is fair, accessible, efficient, sustainable and
responsible for the benefit of consumers generally;
• reducing and ameliorating (improve) any disadvantages experienced in
accessing any supply of goods or services by consumers –
(a) who are low income persons or persons comprising low income
communities;
(b) who live in remote, isolated or low density population areas or communities;
(c) who are minors, seniors or other similarly vulnerable consumers;
(d) People with low literacy level
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CHAPTERS IN THE BILL
• Chapter 1 – Definitions
• Chapter 2-
Objects of Act, Exemptions and functions of the
responsible MEC
• Chapter 3 – Agencies for Consumer Protection in KZN
• Chapter 4 - Realization, Protection of Consumer Rights
• Chapter 5 - Arrangements negotiated by the office of Consumer
Protector
• Chapter 6 – Law enforcement and Judicial Proceedings
• Chapter 7 – General Provisions
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Chapter 1
• This Chapter deals with all the definitions in the act
• In order to ensure alignment with the CPA, as well as to ensure
greater protection for consumers in the Province, most definitions as
the same as those in the CPA.
• A definition of a consumer has been expanded by including users,
beneficiaries or recipients of goods and services so as to extend
redress Including to third parties especially with regards to product
liability;
• This will also include the franchisee who has in the past were
excluded from the definition of the consumer
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Chapter 2
• This chapter deals with the Objects of the Act, which is
to “to provide for a consistent, predictable and effective
regulatory frame work of consumer complaints in the
Province.
• Foster consumer confidence
• Promoting performance & competitiveness in the market
place
• It also provides that the responsible MEC has to develop
Provincial policy and norms and standards pertaining to
consumer matters within 12 months after the coming into
effect of the Act. (Regulations)
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Chapter 2 continues
• Exemptions
CPA exemptions
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Goods/services promoted or supplied to the state;
Consumer is a juristic person- body corporate, partnership, association or
trust (threshold);
Industry-wide exemption granted to regulatory authority;
Credit agreements i.t.o. NCA but not to the goods or services;
Services under employment contract;
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Agreements giving effect to bargaining agreement i.t.o. sec 213 of LRA;
Provincial exemptions
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An officer as defined in section 1(1) of the Customs & Exercise Act
Sheriff or any officer of the Court acting in terms of the Court order
Judicial officer acting in the performance of their function
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Chapter 3
• This chapter deals with the establishment of the Office of
the Consumer Protector.
• The office of the consumer will be an office within the
Department
• The responsible MEC is empowered to appoint a
consumer Protector in terms of the Public Service Act
• The Consumer Protector will be responsible for ensuring
that the office fulfils it objectives and mandate in terms of
the Act.
• The chapter also deals with the establishment of the
Consumer Tribunal.
• The tribunal members will be appointed by the MEC to
adjudicate on all matters bought before them by the the
office of the consumer Protector
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Chapter 3 continues
• The tribunal may award costs orders in their judgments
• The tribunal will consists of between 6 and 8 members
appointed by the MEC
• Like other tribunals there are persons prohibited from
being appointed as members of the tribunal like, a
person who has been convicted, under curatorship,
unrehabilitated insolvent or a person who has been
declared to be of an unsound mind by a competent
Court.
• Members will be appointed for a period of 5 years or less
as determined by the MEC
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Chapter 3 continues
• Remuneration of the members will be determined by the
MEC
• The tribunal may appoint experts in certain matters to
assist the members of the tribunal at an agreed fee if it
deems it necessary in order to assist them in the
exercise and performance of its powers, duties and
functions.
• Proceedings in the tribunal to be initiated by summons
issued by the Consumer Protector
• Tribunal will have the powers to subpoena any person to
appear before it.
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Chapter 4
• This chapter deals with the realization, protection and
enforcement of 8 International Consumer Rights, and the
9th one in South Africa, which are:
• Right to equality (Charge different prices to different
categories of consumers)
• Right to privacy (to pre-emptively block)
• Right to choose (Fixed term agreements must not exceed
the prescribed maximum periods 24 months) and preauthorization.
• Right to disclosure and information (Plain and
understandable Language)
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Chapter 4 continues
• Right to fair and responsible marketing (Bait
marketing)
• Right to fair and honest dealing (cohesion, bulling
tactics)
• Right to fair, just and reasonable terms and
conditions (Tribunal to determine this)
• Right to fair value, good quality and safety (Goods
that comply with standards i.t.o. Standards Act)
• Suppliers accountability to consumers ( lay bye’s
reasonable and may not exceed 1% of the full purchase
price of the good).
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Chapter 4 continues
• Any person may seek to enforce any rights in terms of
this act
• Complaints will be investigated and be resolved through
Alternative dispute Resolution methods
• Complete negotiated settlements between parties
• If there’s no amicable resolution then may be escalated
to the Tribunal for determination
• The Consumer Protector has the powers to appoint
investigators in terms of the Act.
• The MEC will appoint a Review panel situated within the
Department to deal with any reviews from consumers or
business
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Chapter 5
• For enforcement purposes all negotiated settlements by
the office of the consumer Protector may be confirmed
by the National Consumer Tribunal or the High Court
• A confirmation from the High Court must be published in
the Government Gazette
• The High Court may also set aside a negotiated
settlement in order to give the other party an opportunity
to be heard if it is satisfied that the settlement will not
ensure the discontinuance or avoidance of the business
practice which gave rise to the consumer complaint.
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Chapter 6
• In terms of this chapter no member of staff of the office
of the consumer Protector performing their function may
disclose any information acquired in the exercise of their
duties in terms of the Act. (confidentiality)
• No person including the state will be liable in respect of
anything done in good faith under this Act (liability)
• No provisions of this Act may be construed as depriving
any person of any civil remedy or right to institute any
criminal prosecution. (waiver of benefits)
• Penalties for offences and contraventions of this Act will
be determined by the MEC in the Regulations.
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Chapter 7
• This Chapter deals with Regulations
• The MEC may make regulations regarding any matter in
terms of this Act is required or permitted to prescribe,
including;
1. Any payments and amount of fees payable
2. Manner and forms of service, delivery or dispatch of
summons, notice or any other document required to be
served
3. Procedures to be followed dealing with a business entity
4. Tariffs of witness fees payable
5. Fees or any other money to be paid herein.
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Written Comments
• The last day for submitting the written
comments will be 15 July 2011
c/o The Senior Manager: Consumer
Protection Services
Department of Economic Development &
Tourism
270 Jabu Ndlovu Street, Pmb or by e-mail
[email protected]
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THE END
THANX
PREPARED BY
LEHLOHONOLO LUCKY RABOTAPI
SENIOR MANAGER: CONSUMER
PROTECTION SERVICES
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