Anger at exemptions as Consumer Act kicks in

Businesses preparing for the implementation of the Consumer Protection Act, which kicked in on Friday, have been frantically changing the wording of their contracts, updating insurance policies and ensuring that their employees will be held accountable if they contravene the legislation.

But while the private sector now has to comply with the stringent new legislation consumer groups and legal experts have urged Minister of Trade and Industry Rob Davies to reverse his decision to exempt medium- to low-capacity municipalities from the act, meaning consumers will not have any recourse under the act for service provision failures.

Minority rights activist group Afriforum has threatened to take the matter to court if Davies does not withdraw the exemption notice.

Consumer Protection Act expert attorney Gavin Gow said the primary practical duties to comply with the act rested on business owners.

However, he said many employers were asking staff to sign contracts in which they recorded that they were personally responsible to abide by the act.

“If employees breach the Consumer Protection Act they will then be breaching their employment agreement as well and then the Labour Relations Act will kick in. The most obvious breach would be intentional misleading where sales staff will say anything just to get a sale, but another example is the staff member working in the back who goes ahead with putting out a misleading advert that his boss has told him not to,” Gow said.

SA National Consumer Union vice-chairman Clif Johnston criticised the department for a lack of consultation over the exemption of about 200 municipalities.

“This is a clear violation of the intent of the act, which provides for such deferments to be made only to any particular municipality. Providing a blanket exemption for all municipalities, except the largest, is a tacit admission not only of local government’s failure to deliver adequate services but also of the state’s intention not to hold the municipalities to account.”

Johnston said the act allowed for deferment to a municipality only “on the grounds that additional time is required for adequate preparation of the administrative systems necessary to ensure that (it) can meet its obligations… efficiently and effectively.”

However, he said the deferment notice did not say what corrective action was being planned for the exempted municipalities.

AfriForum legal representative Willie Spies said he had written to the minister asking for the notice to be withdrawn.

“If the minister refuses to withdraw the notice, AfriForum will approach the courts for an order to set it aside. Apart from the seeming unconstitutionality of exempting certain municipalities from the act arbitrarily, the notice was not published in time. The act stipulates that notice must be given at least 20 working days before the act comes into effect. Dr Davies’s notice was only published on March 14.”

Department spokesman Sidwell Medupe said the act allowed the minister to “temporarily” defer the application of the act to municipalities other than high-capacity municipalities.

“The minister has exercised the power on application by the minister of co-operative governance … Municipalities are not exempted from the act, but there is a deferment of the application of the act to allow municipalities sufficient opportunity to put in place administration systems for the effective implementation of the act,” said Medupe

“The minister has on request of various stakeholders, including the private sector, previously deferred the implementation of the act to April 1, 2011. All these matters get to be considered on their merit within the confines of the act.” - Independent on Saturday