Although the Consumer Protection Act No. 68 of 2008 (CPA) protects all consumers’ rights in South Africa, Section 11 and Section 12 of the above Act allows suppliers to approach consumers directly to market their goods or services.
Direct Marketing is where a supplier markets their goods or services in person or electronically to a consumer to sell its goods or services to the consumer. All consumers are well aware of this practice as most consumers have been contacted at some time or another by a supplier marketing their products, be it through telephone or e-mail communication.
The CPA protects the consumers’ privacy, that suppliers may only contact consumers at certain times, unless otherwise agreed, in respect of direct marketing.
Suppliers are responsible for marketing their goods and services in good faith and not providing the consumer with misleading information.
Should the consumer be contacted electronically, the consumer has the right to request to unsubscribe or remove their contact details from the database as the consumer no longer wants to receive this type of communication. This instruction from the consumer must be adhered to.
In terms of Section 16 of the CPA, A consumer may rescind a transaction resulting from any direct marketing without reason or penalty by notice to the supplier in writing within five (5) business days after the latter of the date on which the transaction or agreement was concluded, or goods subject to the transaction were delivered to the consumer.
In terms of Section 32 (1), A person who is directly marketing any goods or services and who concludes a transaction or agreement with a consumer must inform the consumer, in the prescribed manner and form, of the right to rescind that agreement, as set out in Section 16(2).
Therefore, Section 16 and Section 32 are two essential provisions the supplier must bring to the consumer’s attention before the conclusion of the transactions/agreement. Failing which, the consumer may refer to the matter.
Should the consumer believe that the goods or services they received after the conclusion of the transaction by way of direct marketing are not the same as discussed before concluding the transaction/agreement and/or the person misled them to conclude the transaction/agreement, then the consumer has the following recourses available:
- Rescind transaction/agreement during the five (5) business days cooling-off period;
- Refer the matter to the relevant person/s attending to customer complaints; or
- Refer the matter to the relevant regulator body/ombudsman; or
- Refer the matter to the National Consumer Commission.
The writer suggests that consumer complaints first be exhausted internally before referring the matter to the office of the regulatory body, ombudsman or National Consumer Commission.
The Consumer Protection Act provides a fair balance regarding direct marketing. The supplier may contact the consumer and market its goods/services, and the consumer has rights when to be contacted. The supplier has a responsibility to act in good faith and in the spirit of transparency, and the consumer has certain recourses which they may consider.
Want to know more about direct marketing? Contact your nearest Consumer Protection & POPI Legal Advisor today. Alternatively, leave your details on our website, and a SEESA representative will contact you.
About The Author:
Chenee Adams is a B-BBEE, Consumer Protection & Personal Information Legal Advisor at our SEESA East London branch since 2021.
Resources:
- Consumer Protection Act No. 68 of 2008.