Redress for consumers in terms of the Consumer Protection Act 68 of 2008: The watchdog’s failure to support an accredited industry ombud – alternative suggestions
Author: MA (Riette) Du Plessis
Affiliations: BA LLB LLM PhD Associate Professor, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 33 Issue 2, 2022, p. 70 – 90
In this contribution, available avenues of consumer redress in terms of the Consumer Protection Act 68 of 2008 (“CPA”) are discussed. The majority of complaints heard by the courts and the National Consumer Tribunal (“NCT”) regarding defective goods entail second-hand cars. These include cases of suppliers’ contempt of findings by the Motor Industry Ombudsman of South Africa (“MIOSA”) in terms of section 70(3)(a), as well as instances where the MIOSA terminates the section 70(2) process and the consumer approaches the National Consumer Commission (“NCC”) in terms of section 71. Processes in the Consumer Protection Act 68 of 2008 are not clearly delineated, leading to unnecessary cross-referrals between different redress mechanisms, such as the MIOSA, the NCC and provincial protection authorities and consumer courts. The NCC’s approach, which is not supported by the CPA, is to avoid investigating individual consumer complaints. The NCC consistently refers matters back to either a different or the same alternative dispute resolution agent, in conflict with the caveat in section 72(1)(b). Many NCT decisions indicate that the NCC issues notices of non-referral without due justification, thereby compelling consumers to approach the NCT, if permitted, or consumer courts for relief. The interplay between the MIOSA, the NCC and provincial consumer courts is discussed, the effect of which frustrates the aim of effective and efficient redress and enforcement in terms of the CPA. An alternative route to ensure the enforcement of consumer rights and redress is suggested, in terms of which the NCC should focus on the outcome of the investigation and use section 73(1)(c)(iii) to refer matters to consumer courts in terms of section 73(2). The advantages of such referrals are indicated. It is shown that the successful outcome of consumers’ claims, where the supplier engages in prohibited conduct, depends on the appropriate application of the relevant sections of the CPA.