Two golden rules
Two rules sit above everything else in this part of the Act. The first is that you cannot contract out of the CPA: a term that tries to make the consumer give up a right, or that lets the supplier dodge a duty, is void to that extent — and a signature does not save it. We set out the full void list under the blacklist below, but the anchoring provision is section 51(3).
“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.”
The second rule is that ambiguity is read in the consumer’s favour. A court must interpret supplier-prepared documents to the benefit of the consumer, and must limit any clause that cuts down the consumer’s rights to what a reasonable person would have expected.
“To the extent consistent with advancing the purposes and policies of this Act, the Tribunal or court must interpret any standard form, contract or other document prepared or published by or on behalf of a supplier… to the benefit of the consumer— (a) so that any ambiguity that allows for more than one reasonable interpretation of a part of such a document is resolved to the benefit of the consumer; and (b) so that any restriction, limitation, exclusion or deprivation of a consumer’s legal rights set out in such a document or notice is limited to the extent that a reasonable person would ordinarily contemplate or expect…”
The general fairness test (section 48)
Section 48 is the heart of the regime. It prohibits a supplier from supplying goods or services, or imposing terms, at a price or on terms that are unfair, unreasonable or unjust — and from forcing a consumer to waive rights, assume obligations or waive the supplier’s liability on such terms.
“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 48(2) then gives content to “unfair”: a term is unfair, for example, if it is excessively one-sided, or so adverse to the consumer as to be inequitable, or if the consumer agreed because of a misleading representation.
“Without limiting the generality of subsection (1), a transaction or agreement, a term or condition of a transaction or agreement, or a notice… is unfair, unreasonable or unjust if— (a) it is excessively one-sided in favour of any person other than the consumer…; (b) the terms… are so adverse to the consumer as to be inequitable; (c) the consumer relied upon a false, misleading or deceptive representation…; or (d) the transaction or agreement was subject to a term, condition or notice contemplated in section 49 (1), and— (i) the term, condition or notice is unfair, unreasonable, unjust or unconscionable; or (ii) the fact, nature and effect of that term, condition or notice was not drawn to the attention of the consumer in a manner that satisfied the applicable requirements of section 49.”
The grey list — terms presumed unfair (regulation 44)
Regulation 44 of the CPA Regulations supplies a “grey list”: a catalogue of clause types presumed to be unfair when used by a for-profit supplier against an individual consumer for non-business purposes. “Presumed unfair” means the clause is not automatically void, but the burden shifts to the supplier to justify it; if it cannot, the term falls under section 48. The list is indicative and non-exhaustive.
“(a) The list in subregulation (3) is indicative only, so that a term listed therein may be fair in view of the particular circumstances of the case. (b) The list in subregulation (3) is non-exhaustive, so that other terms may also be unfair for purposes of section 48 of the Act…”
This is the single most useful checklist when reviewing standard terms. The full list of 28 presumptively-unfair clause types follows, verbatim.
“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—”
- (a)excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier subject to section 61 (1) of the Act;
- (b)excluding or restricting the legal rights or remedies of the consumer against the supplier or another party in the event of total or partial breach by the supplier of any of the obligations provided for in the agreement, including the right of the consumer to set off a debt owed to the supplier against any claim which the consumer may have against the supplier;
- (c)limiting the supplier's obligation to respect commitments undertaken by his or her agents or making his or her commitments subject to compliance with a particular condition which depends exclusively on the supplier;
- (d)limiting, or having the effect of limiting, the supplier's vicarious liability for its agents;
- (e)forcing the consumer to indemnify the supplier against liability incurred by it to third parties;
- (f)excluding or restricting the consumer's right to rely on the statutory defence of prescription;
- (g)modifying the normal rules regarding the distribution of risk to the detriment of the consumer;
- (h)allowing the supplier to increase the price agreed with the consumer when the agreement was concluded without giving the consumer the right to terminate the agreement;
- (i)enabling the supplier to unilaterally alter the terms of the agreement including the characteristics of the product or service;
- (j)giving the supplier the right to determine whether the goods or services supplied are in conformity with the agreement or giving the supplier the exclusive right to interpret any term of the agreement;
- (k)allowing the supplier to terminate the agreement at will where the same right is not granted to the consumer;
- (l)enabling the supplier to terminate an open-ended agreement without reasonable notice except where the consumer has committed a material breach of contract;
- (m)obliging the consumer to fulfil all his or her obligations where the supplier has failed to fulfil all his or her obligations;
- (n)permitting the supplier, but not the consumer, to avoid or limit performance of the agreement;
- (o)permitting the supplier, but not the consumer, to renew or not renew the agreement;
- (p)allowing the supplier an unreasonably long time to perform;
- (q)allowing the supplier to retain a payment by the consumer where the latter fails to conclude or perform the agreement, without giving the consumer the right to be compensated in the same amount if the supplier fails to conclude or perform the agreement (without depriving the consumer of the right to claim damages as an alternative);
- (r)requiring any consumer who fails to fulfil his or her obligation to pay damages which significantly exceed the harm suffered by the supplier;
- (s)permitting the supplier, upon termination of the agreement by either party, to demand unreasonably high remuneration for the use of a thing or right, or for performance made, or to demand unreasonably high reimbursement of expenditure;
- (t)giving the supplier the possibility of transferring his or her obligations under the agreement to the detriment of the consumer, without the consumer's agreement;
- (u)restricting the consumer's right to re-sell the goods by limiting the transferability of any commercial guarantee provided by the supplier;
- (v)providing that the consumer must be deemed to have made or not made a statement or acknowledgment to his or her detriment, unless — (i) a suitable period of time is granted to him or her for the making of an express declaration in respect thereof; and (ii) at the commencement of the period the supplier draws the attention of the consumer to the meaning that will be attached to his or her conduct;
- (w)providing that a statement made by the supplier which is of particular interest to the consumer is deemed to have reached the consumer, unless such statement has been sent by prepaid registered post to the chosen address of the consumer;
- (x)excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, including by requiring the consumer to take disputes exclusively to arbitration not covered by the Act or other legislation;
- (y)restricting the evidence available to the consumer or imposing on him or her a burden of proof which, according to the applicable law, should lie with the supplier;
- (z)imposing a limitation period that is shorter than otherwise applicable under the common law or legislation for legal steps to be taken by the consumer (including for the making of a written demand and the institution of legal proceedings);
- (aa)entitling the supplier to claim legal or other costs on a higher scale than usual, where there is not also a term entitling the consumer to claim such costs on the same scale;
- (bb)providing that a law other than that of the Republic applies to a consumer agreement concluded and implemented in the Republic, where the consumer was residing in the Republic at the time when the agreement was concluded.
There are narrow carve-outs in subregulation (4) — for some financial-services and market-linked pricing terms — but as a working rule, treat every clause on this list as a red flag to be justified, kept narrow and clearly disclosed.
Terms you must specially flag (section 49)
Certain clauses are valid only if you bring them to the consumer’s attention properly, before they sign or pay. These are clauses that limit liability, make the consumer assume a risk or indemnify the supplier, or are an acknowledgement of fact.
“Any notice to consumers or provision of a consumer agreement that purports to— (a) limit in any way the risk or liability of the supplier or any other person; (b) constitute an assumption of risk or liability by the consumer; (c) impose an obligation on the consumer to indemnify the supplier or any other person for any cause; or (d) be an acknowledgement of any fact by the consumer, must be drawn to the attention of the consumer in a manner and form that satisfies the formal requirements of subsections (3) to (5).”
Those formal requirements are concrete: plain language (s 49(3)), a conspicuous manner, and timing before the consumer commits or pays.
“The fact, nature and effect of the provision or notice contemplated in subsection (1) must be drawn to the attention of the consumer— (a) in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances; and (b) before the earlier of the time at which the consumer— (i) enters into the transaction or agreement…; or (ii) is required or expected to offer consideration for the transaction or agreement.”
The risk of getting this wrong is concrete. In the Skydive Mossel Bay litigation, a clause excluding a carrier’s liability for a destroyed aircraft engine was buried in fine print. The High Court held it failed section 49’s notice requirements. On appeal, the Supreme Court of Appeal reached the same result — the carrier lost — but on the narrower common-law basis that the clauses were never incorporated into the contract, and it expressly declined to decide the CPA point.
UPS SCS South Africa (Pty) Ltd v Van Wyk t/a Skydive Mossel Bay
“Furthermore, the standard trading conditions and the relevant clauses which UPS seeks to rely on appear in fine print, and are not conspicuously legible. They appear on the second and third pages of the credit application, which can only be read with extreme difficulty and concentrated effort.”
Note — The Supreme Court of Appeal decided the appeal on common-law incorporation of terms and, at para [20], held it “is not necessary to deal with the issues relating to the CPA”. The section 49 holding belongs to the High Court (Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa 2020 (4) SA 218 (WCC)). Either way the practical lesson stands: important limitation and risk clauses must not be hidden in fine print, and a signature alone will not save them.
Terms that are simply void — the blacklist (section 51)
Some clauses can never be used. They are void even if perfectly disclosed and signed. Section 51 lists them: terms that defeat the Act, mislead the consumer, waive the Act’s rights, exclude liability for gross negligence, falsely have the consumer acknowledge things that are untrue, force the consumer to forfeit money, or take the consumer’s ID, card or PIN. The exclusion of liability for gross negligence is the one most often attempted.
“A supplier must not make a transaction or agreement subject to any term or condition if… (c) it purports to— (i) limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or any person acting for or controlled by the supplier…”
Unlike the grey list, there is no justifying a blacklisted term. Drafting around it just makes part of the contract void under section 51(3). Note, separately, that a term excluding liability for death or personal injury is grey-listed (reg 44(3)(a)) and should not be used without specific legal advice.
Written agreements and copies (section 50)
Where a consumer agreement is in writing — whether the law requires it or you simply choose to — section 50 requires a free copy, plain language and an itemised breakdown of the consumer’s financial obligations. The agreement is not invalid merely because the consumer did not sign it.
“If a consumer agreement between a supplier and a consumer is in writing, whether as required by this Act or voluntarily— (a) it applies irrespective of whether or not the consumer signs the agreement; and (b) the supplier must provide the consumer with a free copy, or free electronic access to a copy, of the terms and conditions of that agreement, which must— (i) satisfy the requirements of section 22; and (ii) set out an itemised break-down of the consumer’s financial obligations under such agreement.”
That an unsigned agreement can bind does not mean unsigned fine print automatically binds: you must still prove the agreement was concluded, and any risk, indemnity, limitation or acknowledgement clause must still be flagged under section 49. Plain language is itself a CPA requirement — see our CPA overview on section 22.
What a court can do (section 52)
If a term is challenged, a court can look behind the signed document — weighing the parties’ relative bargaining power, whether there was negotiation, whether the document was in plain language, and what the consumer knew — and then sever, rewrite or void the offending part.
“If, in any proceedings… a person alleges that an agreement, a term or condition of an agreement, or a notice… is void in terms of this Act or failed to satisfy any applicable requirements set out in section 49, the court may— (a) make an order— (i)… (aa) severing any part of the relevant agreement, provision or notice, or alter it to the extent required to render it lawful…; or (bb) declaring the entire agreement, provision or notice void…”
This is a direct fairness remedy. Outside the CPA, a South African court can refuse to enforce a contractual term only on the higher ground of public policy. The Constitutional Court has described public policy in Barkhuizen v Napier:
Barkhuizen v Napier
“Public policy represents the legal convictions of the community; it represents those values that are held most dear by the society… Since the advent of our constitutional democracy, public policy is now deeply rooted in our Constitution and the values which underlie it.”
But that public-policy power is used sparingly, as the Constitutional Court reaffirmed in Beadica — which is precisely why, within its scope, the CPA’s section 48 to 52 regime gives consumers a more direct and accessible fairness remedy.
Beadica 231 CC v Trustees, Oregon Trust
“According to this principle a court must exercise ‘perceptive restraint’ when approaching the task of invalidating, or refusing to enforce, contractual terms. It is encapsulated in the phrase that a ‘court will use the power to invalidate a contract or not to enforce it, sparingly, and only in the clearest of cases’.”