Enforcement procedures in respect of the consumer’s right to fair, reasonable and just terms under the new Consumer Protection Act in comparative perspective

This article investigates the enforcement procedures available in respect of a consumer’s right to fair contract terms under the South African Consumer Protection Act ('CPA'), in comparative perspective, particularly with reference to the UK. The overarching question that is 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. The article is structured as follows. First, a brief overview with preventative control in the UK is provided. Thereafter, several aspects of a system of so-called general use challenges will be considered. General use challenges refers to challenges to contract terms where a public enforcement body or consumer organisation represents the collective interest of all consumers in fair terms, without any individual consumer being named as represented in the court action, and where no harm to individual consumers need be shown. The aspects considered are, first, which agencies are, or should be, empowered to bring general use challenges. The second question 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. Thereafter the article considers possible court orders for which unfair terms legislation should ideally provide to facilitate preventative control. Fifthly, other parts of the legislation (in addition to the ‘procedural part’) which should be geared towards a preventative control paradigm are identified. This comprises a proposal for the wording of a so-called grey list of contract terms that are presumed to be unfair. Thereafter extra-legislative strategies are examined, especially action on sectoral level and dissemination of information. Finally, the need to provide for regional co-operation is discussed