FUNDAMENTAL CONSUMER RIGHTS: THE RIGHT TO EQUALITY – EUGENE HONEY AND WIM ALBERTS
The next article in this series relates to Chapter 2 of the Consumer Protection Bill, which deals with fundamental consumer rights. These fundamental rights are enjoyed by all consumers including those in the franchise industry. The first fundamental consumer right is the right of equality. Equality is of course a goal enshrined in the Constitution. The essential provisions are set out below.
Restrictions In terms of section 8(1) of the Consumer Protection Bill,certain forms of discrimination are prohibited. A supplier may not, amongst others, unfairly exclude persons from access to any goods (which will below also include services). This will be the case where, for instance, an exclusive supply agreement is entered into. It is also not allowed to provide goods with a different quality, or goods at different prices, to certain persons in a discriminatory manner. It is of course also not allowed to exclude a particular community from the supply of goods on the basis of a ground of unfair discrimination contemplated in the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act.
Further prohibitions are contained in section 8(2).This provision provides that a supplier must not discriminate when assessing the ability of a person to pay the cost of a proposed transaction, when proposing the terms and conditions of the agreement, when seeking judgment in respect of an agreement, or deciding to report any personal information of a person.
Justifications Section 9(1) lists certain grounds on which a differentiation can be justified. It is in order for a supplier to refuse to supply particular goods to a minor in certain circumstances, or to designate a facility for the exclusive use of a minor, a person of a specified age of at least 60, or a particular gender. It is, furthermore, not a contravention of section 8 for a supplier to market any goods in a manner that implies a preference for a particular group of consumers who are distinguishable from the general population on the basis of a ground of discrimination set out in the Constitution, if the particular goods are reasonably intended to satisfy any specific needs that are common to, or uniquely characteristic of, that particular group of consumers.
Jurisdiction of court It is stated, in section 9(4), that nothing in the section is intended to limit the authority of a court to assess the reasonableness of any conduct, and to determine whether any conduct not reasonably justified, constitutes unfair discrimination within the meaning of the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act. Fairness would of course depend on the circumstances of a particular transaction, and, in particular, the nature thereof. An accredited consumer protection group, or any person contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act, may either institute proceedings before an equality court; or file a complaint with the National Consumer Commission, which must refer the complaint to the equality court, if the complaint appears to be valid.
Other rights The other fundamental consumer rights set out in the Bill are the right to privacy, right to choose, right to disclosure and information, right to fair and responsible marketing, right to fair and honest dealing, right to fair, just and reasonable terms and conditions, right to fair value, good quality and safety and suppliers accountability to consumers. These fundamental rights and other key issues will be dealt in articles later in this series.
By Eugene Honey director at Bowman Gilfillan and Wim Alberts consultant at Bowman Gilfillan