The Consumer Protection Act 68 of 2008 (CPA) changed South African contract law by introducing statutory remedies that differ from the traditional common-law breaches, such as mora, positive malperformance, and repudiation. Instead of classifying remedies by the type of breach, the CPA focuses on the type of performance, distinguishing between services and goods.

The CPA also imposes strict limits on contractual terms that attempt to restrict consumer rights. Section 48 provides that suppliers may not impose unfair, unreasonable, or unjust terms. Regulation 44(3) adds to this by including a greylist of terms presumed to be unfair, notably clauses that exclude or limit the protections given to consumers under the Act. This places suppliers in the position where they have to bear the burden of justifying such terms. An example of this is in the Afrox Healthcare v Strydom case, where a hospital’s exclusionary clause was upheld under common law, but under the CPA this type of clause would likely be unenforceable, particularly because exclusion of liability for gross negligence is now blacklisted and rendered void.

Where services are concerned, section 54 sets out the consumer’s rights. Services must be performed timeously, with reasonable notice of unavoidable delays, a requirement that links closely to section 19, which codifies punctual performance as an implied condition in every transaction. Services must also be of a quality that a reasonable consumer may expect, and this includes being free of material imperfections as defined in section 53. If goods are incorporated into the provision of a service, such as parts used in repairs, they must also be free of defects, and section 57 provides a three-month warranty for any parts used in such repairs. A further protection is that the consumer’s property must be returned in substantially the same condition in which it was entrusted to the supplier.

If these rights are not met, section 54(2) grants consumers remedies. The supplier may be required to remedy the defective service, which is a form of specific performance, or alternatively, the consumer may insist on a reasonable reduction in the price paid. The Act does not expressly provide for damages for defective services, leaving that to the common law, nor does it expressly provide for cancellation. 

With regard to goods, section 55 confers on consumers the right to receive goods that are suitable for their ordinary purpose, as well as any special purpose communicated to the supplier. The goods must be of good quality, durable for a reasonable time, free of both latent and patent defects, and compliant with applicable standards set under the Standards Act or any other public regulation. A key innovation of the CPA is that liability extends even to patent defects, which under common law would ordinarily have been the consumer’s responsibility. The Act also restricts the common-law “voetstoots” clause, requiring that any exclusion must specifically draw the consumer’s attention to the defect and obtain the consumer’s agreement to accept the goods in that condition.

If goods fail to comply with these requirements, section 56 empowers the consumer, within six months of delivery, to return them and elect between repair, replacement, or refund. This choice belongs to the consumer and not the supplier. If the repair option is chosen, the supplier has three months to remedy the defect, failing which the consumer may then insist on replacement or refund. This mechanism effectively provides consumers with statutory protection similar to cancellation and restitution, without requiring them to establish the seriousness of the breach as would be necessary at common law.

Finally, the Act provides remedies for suppliers as well. Section 14 allows suppliers to cancel fixed-term contracts, such as gym memberships or cell phone contracts, if the consumer commits a material breach and fails to remedy it within 20 business days of receiving notice.

Overall, the CPA has reshaped the South African law of remedies by shifting attention from technical classifications of breach to the consumer’s experience of performance. It ensures that services are delivered properly and on time, that goods are of a reasonable quality and durability, and that consumers have strong options for redress. 

Reference List:
 Consumer Protection Act 68 of 2008
 Afrox Healthcare Beperk v Strydom (172/2001) [2002] ZAENGTR 1 (31 May 2002)

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