Sunday, 27 May 2012

Consumer Protection: Alive and Kicking

Enforcement of the Consumer Protection Act: A practical guide to lodging a complaint with South Africa’s National Consumer Commission

Introduction

In this age of consumer centric legislation and increasing pressure on disposable household income, efficient and cost effective legal remedies are a must. One can argue that South African consumers are in as good a position as any country in the world when it comes to consumer rights and are now becoming a somewhat protected species.  Perhaps that may be a slight exaggeration but consumers now have remedies available to them that are on par with many “developed” countries.

Granted, the Consumer court structures in South Africa are probably underfunded, as conceded by the National Consumer Tribunal (“NCT”) in its 2011 annual report. In the past month or so I have had two occasions to deal with the National Consumer Commission (“NCC”) and on both occasions I have been dealt with professionally and in a reasonable amount of time. On the second occasion I had a reference number and my client was called to confirm the veracity of the matter and given the reference number within 3 hours – phenomenal by South African standards.

Enforcement of the Consumer Protection Act 

 Assuming a Consumer has a has a valid dispute with a Supplier in terms of the Consumer Protection Act (“the Act”), speedy enforcement is available via a number of Consumer Courts in terms of section 69. Simplistically, each province should have a regional consumer court, a country wide NCC and above that the top, for want of a better term, non-court consumer body – the NCT. 

In addition, one has the option to refer the matter to an alternative dispute resolution agent or an ombudsman with jurisdiction (this means someone accredited with appropriate experience).  In May 2012, I was advised by the Kwa-Zulu Natal consumer office that there is no localised operational court in KZN and I should refer to the NCC, alternatively to find an ombudsman in the applicable industry. 

The regional offices were established to provide guidance and assistance to the South African consumer with the end-goal, based on the drafted legislation, being localised courts.  We are not quite there but the staff members of the KZN office appeared knowledgeable and were helpful and courteous.  A list of contact numbers for regional consumer offices as well as other useful numbers can be found here.

The National Consumer Commission (“the NCC”)

As I see it, based on the Act as it stands, there is no jurisdictional or locus standi issue with a Consumer approaching the NCC (NCT in some situations) directly, after satisfying its requirements procedurally and based on the Act (i.e.: you have a valid dispute and have complied with the NCC’s, alternatively NCT’s basic procedural regulations).

The NCC was established in terms of section 85 of Act.  It is an organ of state with jurisdiction throughout the Republic of South Africa and is headed by a Commissioner appointed by the Minister of Trade and Industry. The NCC is charged with enforcing various provisions of the Act and resolving Consumer disputes. Legalese aside, practically as resources and the law stands in 2012, the NCC will probably be the first port of call for most Consumers lodging an official complaint in terms of the Act.

How do I complain?

It is important to note that legal representation is not required by the Consumer although it is probably recommended if at all possible. In terms of section 71(1) of the Act a Consumer, or legal representation on their behalf, must complete the NCC’s complaint form to initiate a complaint. This is essentially a basic statement of fact, nature of the complaint, supporting documentation and the proposed outcome for the dispute. The form can be sent electronically or via fax. Thereafter, the Consumer receives a reference number and the Supplier / respondent is sent the complaint and given a period of time to respond. 

The NCC in most formal communication acknowledges that its mandate is to resolve disputes between consumers and business using alternative dispute resolution mechanisms”. Consequently, if one brings a complaint to the NCC, from a strategic perspective, one should always have endeavoured to resolve the dispute amicably. In other words, the Consumer should be seen to be proactive in their approach and at least should have tried to e-mail or call the Supplier to have attempted negotiation.

The NCC is understaffed and overworked. Horrendous cliché but true. Therefore, when approaching the NCC or any other South African consumer body, be in a position where you have tried everything you could have reasonably been expected to.  If you want to be successful, try going the extra mile when resolving a dispute – keep calm, remain objective, unbiased and keep emotion out. Try wherever possible to have a record of telephone conversations, discussions and e-mail is an option that will usually give you verifiable proof.

Do not accept or settle for behaviour that is contrary to the Act.  There are remedies, and in some instances, legal advice may not be required.