Who the CPA protects — and who it does not
The Consumer Protection Act applies to virtually every transaction and the promotion of goods or services in the ordinary course of business within South Africa. A “consumer” is not only the person who buys — it extends to the user of the goods and the recipient of the services. But there are important exclusions in section 5(2). The most significant for business-to-business dealings is the juristic-person threshold:
“This Act does not apply to any transaction— … (b) in terms of which the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold value determined by the Minister in terms of section 6…”
Section 6 requires the Minister to set that threshold by notice in the Gazette. It was set at R2 million and has not been revised since the Act came into force on 1 April 2011. The effect: a natural person is always a protected consumer, but a company, close corporation or trust is protected only where its asset value and annual turnover are below R2 million at the time of the transaction. Larger businesses fall outside the Act and must rely on the ordinary law of contract. Supplies to the State, employment contracts and collective agreements are also excluded.
The National Credit Act boundary
The CPA and the National Credit Act divide the field. Where a transaction is a credit agreement under the NCA, the credit side is governed by the NCA — but the goods or services bought on credit stay within the CPA.
“This Act does not apply to any transaction— … (d) that constitutes a credit agreement under the National Credit Act, but the goods or services that are the subject of the credit agreement are not excluded from the ambit of this Act…”
So a car sold on finance is two things at once: the loan is NCA business, the car is CPA business. For the credit side — registration as a credit provider, affordability and reckless-lending rules, interest caps and in duplum — see our Finance & Credit Law hub.
Plain and understandable language (s 22)
Consumer-facing documents — terms and conditions, notices, agreements — must be in plain language. Section 22 gives a concrete, enforceable test rather than a vague aspiration.
“For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort, having regard to— (a) the context, comprehensiveness and consistency…; (b) the organisation, form and style…; (c) the vocabulary, usage and sentence structure…; and (d) the use of any illustrations, examples, headings or other aids to reading and understanding.”
The practical consequence is that dense, lawyerly standard terms can be unenforceable against a consumer. It is also why the unfair-terms rules below care so much about whether a term was actually drawn to the consumer’s attention.
Unfair terms and the grey list
The CPA polices the substance of consumer contracts, not just their clarity. Section 48 prohibits unfair, unreasonable or unjust terms and prices:
“A supplier must not— (a) offer to supply, supply, or enter into an agreement to supply, any goods or services— (i) at a price that is unfair, unreasonable or unjust; or (ii) on terms that are unfair, unreasonable or unjust; (b) market any goods or services… in a manner that is unfair, unreasonable or unjust; or (c) require a consumer… to waive any rights; assume any obligation; or waive any liability of the supplier, on terms that are unfair, unreasonable or unjust…”
Section 51 then lists outright prohibited terms (for example, terms that try to waive the Act’s rights, or to exclude liability for gross negligence), and section 51(3) gives them no effect:
“A purported transaction or agreement, provision, term or condition of a transaction or agreement, or notice to which a transaction or agreement is purported to be subject, is void to the extent that it contravenes this section.”
Regulation 44 to the Act supplies a “grey list” — a catalogue of terms presumed to be unfair, which a supplier must justify if challenged. It is the single most useful checklist when reviewing standard terms.
“A term of a consumer agreement subject to the provisions of subregulation (1) is presumed to be unfair if it has the purpose or effect of—” [28 categories follow, including excluding liability for death or personal injury, allowing the supplier to change the price or the terms unilaterally, imposing disproportionate cancellation penalties, and forcing the consumer into non-statutory arbitration].
Cooling-off after direct marketing
Where a sale results from direct marketing, the consumer has a five-business-day right to walk away, separate from the seven-day ECTA cooling-off right for online sales.
“A consumer may rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the supplier in writing, or another recorded manner and form, within five business days after the later of the date on which— (a) the transaction or agreement was concluded; or (b) the goods that were the subject of the transaction were delivered to the consumer.”
The two regimes do not overlap: section 16(1) says the CPA cooling-off right does not apply where section 44 of the ECT Act applies to the transaction. So an online sale runs on ECTA’s seven-day right; a phone or in-person sale that followed direct marketing runs on the CPA’s five-business-day right.
Quality and the six-month return right
Every consumer has a right to goods that are safe, of good quality and durable (section 55). Section 56 turns that into an implied warranty backed by a six-month return right — and the choice of remedy belongs to the consumer.
“Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55, and the supplier must, at the direction of the consumer, either— (a) repair or replace the failed, unsafe or defective goods; or (b) refund to the consumer the price paid by the consumer, for the goods.”
A “no refunds” sign does not override this. And if a supplier repairs goods but the same defect (or a new one) appears within three months of the repair, section 56(3) requires the supplier to replace the goods or refund the consumer. The warranty is in addition to any express or common-law warranty.
Strict product liability (s 61)
Section 61 is the provision that most changed the risk picture for producers and retailers. It imposes no-fault liability for harm caused by unsafe or defective goods, across the whole supply chain.
“Except to the extent contemplated in subsection (4), the producer or importer, distributor or retailer of any goods is liable for any harm, as described in subsection (5), caused wholly or partly as a consequence of— (a) supplying any unsafe goods; (b) a product failure, defect or hazard in any goods; or (c) inadequate instructions or warnings provided to the consumer… irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be.”
The liability is joint and several (s 61(3)), the “harm” includes death, injury, illness and certain property loss (s 61(5)), and there is a three-year time bar with limited defences (s 61(4)). The leading case is Eskom Holdings Ltd v Halstead-Cleak [2016] ZASCA 150, where the Supreme Court of Appeal held that section 61 strict liability arises only within a supplier–consumerrelationship: a passer-by injured by a low-hanging power line was not a “consumer” of that electricity, so section 61 did not apply. The practical takeaway is to manage this risk with proper warnings, quality control up the supply chain, and product-liability insurance.
Regulators and enforcement
The CPA is enforced by the National Consumer Commission, which investigates complaints and issues compliance notices, and the National Consumer Tribunal, which adjudicates and can impose administrative fines of up to 10% of annual turnover or R1 million, whichever is greater. Many sectors are also served by the accredited Consumer Goods and Services Ombud, and provincial consumer courts hear disputes too. For most businesses the cheapest compliance is preventive: CPA-compliant terms, a lawful returns policy, accurate marketing, and clear warnings. A focused review of your customer-facing documents typically aligns the CPA, the ECT Act and POPIA at once.