Consumer Protection Act Article 2: Protection against discriminatory marketing

In our previous article, we discussed when the Consumer Protection Act 68 of 2008 (“the Act”) applies to a transaction.

In this article, we shall discuss the consumer’s right to equality in the consumer market, or better put, the protection against discriminatory marketing.

In terms of Section 8 of the Act a supplier, subject to the exceptions that will be discussed in the next article, is prohibited from offering goods or services in a manner that unfairly discriminates against any person or category of persons by:

  1. Excluding them from accessing the goods or services;

  2. Granting them exclusive access;

  3. Assigning priority of supply to anyone;

  4. Supplying different quality of goods or services to anyone;

  5. Charging different prices to anyone;

  6. Targeting particular communities, districts, populations, or market segments for exclusive, priority or preferential supply of any goods or services;

  7. Excluding a particular community, district, population or market from the supply of any goods or services offered by the supplier;

  8. On the basis of one or more grounds of unfair discrimination contemplated in Section 9 of the Constitution;

  9. On the basis of one or more grounds of unfair discrimination contemplated in Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act;

A supplier must not directly or indirectly treat any consumer differently in any manner that constitutes unfair discrimination in one or more of the grounds above when:

  1. Assessing the ability of the consumer to pay the costs, or meet the obligations, of a transaction or agreement;

  2. Deciding whether to enter into a proposed transaction or agreement or to offer to enter into a transaction or agreement;

  3. Determining the costs of a transaction or agreement to the consumer;

  4. Interacting with the consumer in the supplier’s place of business or in the course of displaying or demonstrating any goods, testing or fitting any goods or negotiating the terms of a transaction or proposed agreement;

  5. Selecting, preparing, packaging or delivering any goods for or to a consumer, or providing any services to a consumer;

  6. Proposing or agreeing to the terms and conditions of a proposed transaction or agreement;

  7. Assessing or requiring compliance by a consumer with the terms of a transaction or agreement;

  8. Exercising any right of the supplier under a transaction or agreement in terms of the Act or applicable legislation;

  9. Determining whether to continue, enforce or seek judgment in respect of:

(a) Terminating a transaction or agreement;
(b)Determining whether to report any personal information of a consumer.

This protection is afforded to associations or juristic persons (companies) based on the characteristics of any natural person who is associated with that organisation.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney

In our next article, we consider when differential treatment is allowed, special needs, the legal consequences of discrimination in relation to the Act and how a court will approach discrimination in regards to marketing.