A consumer has certain fundamental rights which are given in terms of the Consumer Protection Act. There are a few of them, but it could be argued that the most important one in our day and age would be the right to equality.
Section 8 of the Consumer Protection Act states that a supplier should not:
- unfairly exclude a consumer from accessing certain goods or services;
- grant certain consumers exclusive use or supply a different quality or price to certain consumers;
- or treat a consumer differently based on age, race, gender, or any other ground stated in Section 9 of the Constitution.
Treating a consumer differently on any basis will always be seen as unfair discrimination. The supplier will have to prove that the discrimination was in these circumstances fair.
But when can discrimination against a consumer ever be seen as possibly fair?
Section 9 of the Consumer Protection Act gives a guideline on when discrimination against a consumer may be seen as fair.
Discriminating on someone based on their age will be seen as fair when, for example, it is against the law to supply goods or services to that person based on their age. For this reason, it is not unfair discrimination to prohibit the sale of alcohol to someone who is under 18. It will also not be unfair discrimination to market certain products for people of certain ages if that product is intended for someone of that age. For example, you will not market a multi-vitamin formulated for someone older than 60 to all consumers. Excluding other consumers may in this regard not be seen as unfair discrimination.
Consumers also don’t have the right to demand certain goods or services from a supplier if those goods and services, of the same or equal quality, can be accessed from any other supplier nearby. An example will be if a supplier isn’t open for business on a Sunday, due to religious reasons. There will be no infringing on the rights of a consumer if there are other suppliers who can provide the same goods or services nearby.
The Act in no way takes away the authority of the court to determine if certain acts of discrimination are fair or unfair. The consumer has the right to refer the matter to the Equality Court, and then the court will ultimately decide if the discrimination was reasonable or not. All circumstances will be taken into account and the onus to prove that the discrimination was fair, will rest on the supplier.
A supplier should never discriminate against a consumer, but should there be no other option than in terms of Section 9 of the Consumer Act the reasonableness should be confirmed, before proceeding?
Resources:
Consumer Protection Act 68 of 2008
About the author:
Antoinette Wessels completed her articles in Bloemfontein and was admitted as an attorney in 2016. She joined SEESA in 2017 as a Consumer and Labour Legal advisor and is currently working at SEESA’s George Branch in the Southern Cape.