'Innovative Orders' Under the South African Consumer Protection Act 68 of 2008

32 Pages Posted: 22 May 2019

See all articles by Tjakie Naude

Tjakie Naude

Law Faculty, University of Cape Town

Elizabeth De Stadler

Esselaar Attorneys

Date Written: April 26, 2019

Abstract

This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time".

The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures".

Keywords: Consumer Protection Act, consumer protection, innovative orders, enhanced consumer measures

Suggested Citation

Naude, Tjakie and De Stadler, Elizabeth, 'Innovative Orders' Under the South African Consumer Protection Act 68 of 2008 (April 26, 2019). Potchefstroom Electronic Law Journal, Vol. 22, 2019, Available at SSRN: https://ssrn.com/abstract=3392332

Tjakie Naude (Contact Author)

Law Faculty, University of Cape Town ( email )

Private Bag
Rondebosch 7701
South Africa

HOME PAGE: http://www.privatelaw.uct.ac.za/staff/tnaude/

Elizabeth De Stadler

Esselaar Attorneys ( email )

6th Floor, 36 Long St
Cape Town City Centre
Cape Town, Western Cape 8001
South Africa

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