n South African Law Journal - Enforcement procedures in respect of the consumer's right to fair, reasonable and just contract terms under the Consumer Protection Act in comparative perspective




Part G of Chapter 2 of the Consumer Protection Act seeks to protect a consumer's 'right to fair, reasonable and just terms and conditions'. The purpose of this article is to investigate more closely the enforcement procedures available in respect of a consumer's right to fair contract terms. This involves a study of other parts of the Consumer Protection Act, in comparative perspective. The overarching question that will be addressed is whether the enforcement procedures and other parts of the Consumer Protection Act relevant to unfair contract terms reflect an effective, preventative or proactive control paradigm to operate in tandem with reactive or 'ex post facto' judicial control over individual contracts. This includes an investigation of the path that a consumer complaint about an alleged unfair term must follow. The article is structured in the following way. First, a brief comparative overview of preventative control mechanisms in the United Kingdom of Great Britain and Northern Ireland is provided. Thereafter, several aspects of a system of general use challenges are considered. These are, first, which agencies are, or should be empowered to bring general use challenges. The second question to be considered is whether a public enforcement body is, or should be obliged to act upon a complaint by applying for an interdict if negotiations with the supplier fail. Thirdly, the powers that should be granted to an enforcement body to facilitate general use challenges are considered, as well as the procedure that ought to be followed in bringing such challenges. Thereafter, the possible court orders for which unfair terms legislation should ideally provide to facilitate preventative control are considered. Fifthly, other parts of the legislation (in addition to the 'procedural part') which should be geared towards a preventative control paradigm are identified. Thereafter extra-legislative strategies will be examined, especially action on a sectoral level and dissemination of information. Finally, the need to provide for regional co-operation is discussed.


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