Complying with Changes in Legislation

Protection of consumer rights and the consumer voice

Right to be heard and obtain redress

The Act aims to make redress accessible, and to protect consumers from being victimised if they act to enforce their rights.

Clause 69 outlines the available avenues of redress, including the courts, alternative dispute resolution, and complaint to the Commission.

If a complaint arises in an industry in which a statutory ombud scheme is in place, the consumer must pursue a resolution through that scheme before making a complaint to the Commission.

An ombud, consumer court or provincial authority that has resolved a complaint may record the agreement as an order, which must then be confirmed as a consent order by the courts.

If a complaint is made to the Commission, it will investigate, and may make a referral to the Tribunal, which may resolve the matter by making certain orders as contemplated in clause 75.

In addition to their jurisdiction to hear a matter initiated directly by a consumer, the courts have jurisdiction to hear appeals against Tribunal decisions, and may order suppliers to alter or discontinue certain practices, award damages against suppliers for collective injury to all or a class of consumers, to be paid to any person on any terms that the court might decide.

Role of civil society

The Act recognises the role of civil society in consumer protection by providing for the support of any juristic person or association of persons that meet the set criteria as consumer protection groups.

The Act allows class actions in the form of accredited consumer protection groups, which groups may act to protect the interests of a consumer individually or of consumers collectively.

Business names and industry codes of conduct

Registration of business names

The practice whereby companies or close corporations trade under names other than their registered names will cease with the implementation of the Consumer Protection Act, 2008 (CPA).

Section 79 of the Act prohibits any person from carrying on business except under the person’s full name as recorded in an identity document, or officially recognised, or in the case of a juristic person (for example, a company), a business name registered with the Registrar of Companies.

This means that a trading name must be the registered name of the entity. Section 80 does, however, allow a person to register any number of business names that are used or will be used in carrying on business.

The present custom whereby a company or CC carries on business as “XYZ Bank, trading as XYZ Loans” will no longer be allowed once section 70 comes into force.

A business name may not be the same as, or confusingly similar to an entity already registered under the Companies Act, the Close Corporations Act or the Co-operatives Act.

The name may also not be the same as or similar to a registered trade mark belonging to another person.

If an entity conducts business under a trading name that is not its registered name, the National Consumer Commission may require it to cease trading under that name.

The possible proliferation of new registered business names will require vigilance on the part of businesses and trade mark proprietors to protect their intellectual property rights in respect of their registered names.

Development of industry codes

Clause 82 establishes a scheme for the development through consultation of industry codes of conduct, relating to consumer matters, and provides for them to receive the force of law by being prescribed by the Minister.

Protection of Personal Information Bill

Purpose of the Act

POPI is to promote the protection of personal information:

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  Processed by public and private bodies;
  
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  To introduce information protection principles so as to establish minimum requirements for the processing of personal information;
  
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  Establish an Information Protection Regulator;
  
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  To provide for the issuing of codes of conduct;
  
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  To provide for the rights of persons regarding unsolicited electronic communications and automated decision making;
  
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  To regulate the flow of personal information across the borders of the Republic; and
  
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  To provide for matters connected therewith.
  

Application of the Act

The Bill applies to any public or private body or any other person who (alone or in conjunction with others) determines the purpose of, and means for, processing Personal Information (called a "Responsible Party").

The Bill regulates the processing of "Personal Information", being information relating to an identifiable, living, individual, and where applicable, an identifiable, existing juristic person such as a company or close corporation (the "Data Subject").

What information is protected?

Personal Information includes, but is not limited to:

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  Information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
  
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  Information relating to the education or the medical, financial, criminal or employment history of the person;
  
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  Any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to the person;
  
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  The blood type or any other biometric information of the person;
  
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  The personal opinions, views or preferences of the person;
  
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  Correspondence sent by the person that is implicitly or explicitly of a private or confidential nature, or further correspondence that would reveal the contents of the original correspondence;
  
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  The views or opinions of another individual about the person; and
  
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  The name of the person if it appears with other personal information relating to the person, or if the disclosure of the name itself would reveal information about the person.