Consumer Protection Act Article 16: The agreement between the supplier and consumer Part 5  

In our previous article, we discussed the agreement between the supplier and consumer in regards to unreasonable, unfair and unjust contractual terms.

In this article, we shall continue to discuss the agreement between the supplier and consumer but in relation to prohibited transactions, agreements, terms and conditions.

In accordance with Section 51 of the Act, a consumer cannot escape any imposed obligations stipulated under the Act by merely having the consumer agree not to hold them liable. While the complete Section 51 is lengthy the just of this provision is as follows:

1. a supplier may not make an agreement subject to terms and conditions that are intended to defeat the purpose of the Act;

1. a supplier may not mislead or deceive a consumer or subject the consumer to fraudulent conduct;

2. waives or deprives a consumer of a right in terms of the Act;

3. restricts or avoids a supplier’s obligations in terms of the Act;

4. overrides and/or sets aside the effect or implementation of any provision of the Act;

5. permits the supplier to avoid compliance with the Act;

6. exempts or limits the supplier from liability for loss attributed directly or indirectly for gross negligence or constitutes an assumption of risk or liability by the consumer for loss caused by such gross negligence.

By way of example when entering a parking lot it is common to notice a sign stating that operators of the parking lot accept no liability for loss, damage, or loss of life howsoever the damage is caused (commonly known as ‘ticket cases’). In terms of the Act, this can no longer exclude gross negligence. Naturally, the further provisions of the Act must be complied with for ordinary negligence to be excluded.

The following is a summarised list of the further prohibited terms:

1. a supplier may not insist that a consumer pay for a damaged display item unless the consumer intentionally caused the damage;

2. a term that results in negative option marketing (previously discussed);

3. a term that results in a supplementary (addendum or amendment) that contains or includes a prohibited term;

4. a term that contains a false acknowledgement;

5. a term that requires the consumer to forfeit any money to the supplier when exercising rights under the Act;

6. a term that authorises any person to enter the consumer’s premises to repossess any goods;

7. a term that amounts to a predetermined value of costs when enforcing an agreement.

Any contravention of Section 51 in regards to a transaction, agreement, term or condition is void to the extent of the contravention with the Act. What this entails is that the offending provisions are effectively struck from the agreement while the remaining provisions remain active. However, if the offending provision cannot merely be removed without affecting the entire agreement then the entire agreement would be void.

***Kindly note that the contents of this article are intended for information purposes only and do not constitute legal advice. Consult your attorney.