Abstract
The theme of fragmentation versus convergence of consumer law has relevance for Africa, inter alia because the African Continental Free Trade Area is foreseen to become a single continental market. Fragmentation of consumer law within one legal system and across legal systems is inevitable. Several types of hyper-vulnerable consumers require special protection. Drafters and interpreters of consumer legislation should remember that the majority of African consumers are hyper-vulnerable. Consumer legislation attuned to this reality needs special reference to the needs of such consumers. More resources should be allocated to the protection of hyper-vulnerable consumers, including through proactive enforcement. The informal economy may require some special rules, but the rules on quality of products should mostly remain the same. More resources should be targeted at enforcing safety standards and rooting out counterfeit goods and creative ways found to bring consumers in the informal economy under the protection of consumer law. Fragmentation of sources of consumer law in Africa and at the level of enforcement agencies is also considered. Even if rules are harmonized across legal systems, fragmentation is inevitable, inter alia due to different interpretations by local agencies. An attempt at some convergence has benefits, but cogent arguments against harmonization exist. Some realities in the Global South militate against harmonization. There is greater potential for some level of harmonization where there is a real cross-border interest, such as in e-commerce, travel, and tourism. When convergence is considered, the reasons behind current divergence should be researched to establish the potential for convergence.
Similar content being viewed by others
Notes
Other socioeconomic rights protected by the Constitution include the right to adequate housing, healthcare, social security and education, and children’s rights for example to basic nutrition and shelter (ss 26, 27, 28, and 29). Electricity is not mentioned.
€468 at 7 December 2018.
These racial categories, dating from the apartheid era, are still used in the democratic South Africa to establish socioeconomic realities.
€254 at 18 December 2018.
2013 (1) SA 219 (KZD).
For example, in Zambia, only 47.8% of the population had mobile internet access and 0.22% fixed internet access in 2017 (Zambia Information and Communications Technology Authority 2017). In South Africa, one of the most affluent sub-Saharan African countries, 65% of consumers above 16 years old can access the internet from home, which is still well below the global average of 82% (Bizcommunity 2017).
A “hawker” is defined in the South African legislation making this exception as “a natural person lawfully engaged, solely for his or her own benefit, in the selling of goods on the street or in public places or spaces in respect of which all members of the public enjoy unrestricted and unconditional access subject only to law” (Notice at the end of the Consumer Protection Act Regulations 2011).
Federal Competition and Consumer Protection Act 2019; Monye (2018).
Section 209 requires that the Ombud Council operate one or more centres “to assist financial customers to formulate complaints and to identify for them the ombud appropriate to deal with their complaints.”
Michaels, R. Legal Unification: Form and Substance. Unpublished conference paper presented at the conference Towards an Asian Legal Order: Conversations on Convergence, Singapore Management University, 8–9 December 2016 (on file with the author).
Egypt, Nigeria, Kenya and Zambia (https://econsumer.gov/MemberCountries#crnt, accessed 16 August 2019).
Malan v City of Cape Town 2014 (6) SA 315 (CC).
References
Amadi, S. (2017). The rule of law approach to regulating electricity supply in Nigeria. Journal of Sustainable Development Law and Policy, 8, 26–47.
Anderson, K. (2004). Testing the model soft law approach to international harmonisation: A case-study examining the UNCITRAL model law on cross-border insolvency. Australian Year Book on International Law, 23, 1–24.
BEUC. (2016). Fitness check of EU Consumer Law 2016 - BEUC Position. Retrieved from: http://www.beuc.eu/publications/beuc-x-2016-081_csc_fitness_check_of_eu_consumer_law_2016_beuc_position.pdf(accessed 27 July 2018).
BEUC. (2018). Digital content directive - Key recommendations for the trialogue negotiations. Retrieved from: http://www.beuc.eu/publications/beuc-x-2018-003_digital_content_directive.pdf. (accessed 19 September 2019)
Bizcommunity. (2017, November 20). Google reveals findings of the 2017 Connected Consumer Study. Retrieved from: http://www.bizcommunity.com/Article/196/16/170329.html(accessed 26 July 2018).
Carbone, S. M. (2016). Rule of law and non-state actors in the international community: Are uniform law conventions still a useful tool in international commercial law. Uniform Law Review, 21, 177–183.
City of Cape Town. (2018a). Credit Control and Debt Collection Policy 2018/19 (Policy Number 21144D, 30.05.2018). Retrieved from: http://resource.capetown.gov.za/documentcentre/Documents/Bylaws%20and%20policies/Credit%20Control%20and%20Debt%20Collection%20Policy.pdf. (accessed 24 July 2018).
City of Cape Town. (2018b). Commercial water and sanitation concessions and rebates. Retrieved from: http://www.capetown.gov.za/work%20and%20business/commercial-utility-services/commercial-water-and-sanitation-services/commercial-water-and-sanitation-concessions-and-rebates(accessed 24 July 2018).
Consumers International. (2011). A guide to developing consumer protection law. Retrieved from: http://www.fao.org/3/a-at346e.pdf (accessed 16 December 2018).
De Stadler, E. B. (2016). The scope of the application of the Consumer Protection Act 68 of 2008 in the context of the sale of defective goods in comparative perspective (LLM dissertation, University of Cape Town, 2016).
De Stadler, E., & Van Zyl, L. (2017). Plain-language contracts: Challenges and opportunities. SA Mercantile Law Journal, 29, 95–127.
Dowuona-Hammond, C. (2018). Consumer law and policy in Ghana. Journal of Consumer Policy, 41, 333-354
Durovic, M. & Micklitz, H-W. (2017). Internationalization of consumer law. Cham: Springer.
French, R. (2016). Convergence of commercial laws – Fence lines and fields. Paper delivered at the conference Doing Business Across Asia – Local Convergence in an Asian Century, 22 January 2016. Retrieved from: http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj22Jan2016.pdf. (accessed 29 November 2018).
Gilaad, I. (2016). A national minimum wage for South Africa. July 2016. Retrieved from: http://nationalminimumwage.co.za/wp-content/uploads/2016/08/NMW-RI-Research-Summary-Web-Final.pdf. (accessed 7 July 2018).
Godwin, A. (2019). Convergence, divergence and diversity in financial law – The experience of the UNICTRAL model law on cross-border insolvency. In G. Low & M. De Visser (Eds.), Convergence of commercial laws in Asia: Methods and drivers. Cambridge: Cambridge University Press (forthcoming).
Howells, G., & Reich, N. (2011). The current limits of European harmonisation in consumer contract law. ERA Forum, 12, 39–57.
IATA. (2013). IATA core principles of consumer protection. International Air Transport Association. Retrieved from: https://www.iata.org/pressroom/pr/Documents/agm69-resolution-passenger-rights.pdf (accessed 11 September 2019).
ICAO. (2013). Effectiveness of consumer protection Regulations. Working Paper for the Worldwide Air Transport Conference (ATCONF) sixth meeting, Montreal, 18-22 March 2013. Retrieved from: https://www.icao.int/Meetings/atconf6/Documents/WorkingPapers/ATConf6.IP.001.en.pdf. (accessed 30 October 2018).
ICC. (2018). Consolidated code of advertising and marketing communication practice. International Chamber of Commerce. Retrieved from: https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/ (accessed 11 September 2019).
Kobrin, S. J. (2001). Territoriality and the governance of cyberspace. Journal of International Business Studies, 32, 687–704.
Korsten, L. (2018, December 3). What led to the world’s worst listeriosis outbreak in South Africa. The Conversation. Retrieved from: http://theconversation.com/what-led-to-worlds-worst-listeriosisoutbreak-in-south-africa-92947. (accessed 31 July 2018).
Loos, M. (2010). Full harmonisation as a regulatory concept and its consequences for the national legal orders: The example of the consumer rights directive. Centre for the Study of European Contract Law Working Paper Series No. 2010/03. Retrieved from: https://doi.org/10.2139/ssrn.1639436.
Malala, J. (2018). Consumer law and policy in Kenya. Journal of Consumer Policy, 41, 355–371.
Michaels, R. (2016). Legal unification: Form and substance. Unpublished conference paper presented at the conference Towards an Asian Legal Order: Conversations on Convergence, Singapore Management University, 8–9 December 2016 (on file with the author).
Mik, E. (2017). Legal and regulatory challenges to facilitating E-commerce in the ASEAN. SSRN Electronic Journal, (written 1 December 2017 and posted on SSRN 18 January 2018). Retrieved from SSRN: https://doi.org/10.2139/ssrn.3100578. (accessed 11 December 2018). [to be published in April 2019 in Hsieh, P.L & Mercurio, B. (Eds.), ASEAN Law in the New Regional Order: Global Trends and Shifting Paradigms (Cambridge: Cambridge University Press)].
Monye, F. (2018). An overview of consumer law in Nigeria and relationship with laws of other countries and organisations. Journal of Consumer Policy, 41, 373–393.
Mwenegoha, T. (2018). Dissemination of consumer law and policy in Tanzania. Journal of Consumer Policy, 41, 435–453.
National Consumer Commission. (2016). Annual Report 2015/2016.
Naude, T. (2010). Enforcement procedures in respect of the consumer’s right to fair, reasonable and just terms under the new consumer protection act in comparative perspective. South African Law Journal, 127, 515–547.
Naude, T. (2018). Dissemination of consumer law and policy in South Africa. Journal of Consumer Policy, 41, 411–434.
Naude, T., & Barnard, J. (2018). Enforcement and effectiveness of consumer law in South Africa. In H.-W. Micklitz & G. Saumier (Eds.), Enforcement and effectiveness of consumer law (pp. 565–590). Cham: Springer.
OECD. (2008). Policy guidance for addressing emerging consumer protection and empowerment issues in mobile contracts.
Rizzi, M. (2018). Reflections on consumer law and policy in Seychelles. Journal of Consumer Policy, 41, 395–410.
Socio-Economic Rights Institute of South Africa. (2016). Access to basic services. Retrieved from: http://www.seri-sa.org/index.php/what/basic-services. (accessed 26 July 2018).
Statistics South Africa. (2017). Quarterly labour force survey (13 February 2018). Retrieved from: http://www.statssa.gov.za/publications/P0211/P02114thQuarter2017.pdf. (accessed 31 July 2018).
Stebek, E. (2018). Consumer protection law in Ethiopia: The normative regime and the way forward. Journal of Consumer Policy, 41, 309–332.
Temple, H. (2003). Quel droit de la consommation par l’Afrique: Une analyse critique du projet OHADA d’Acte uniforme sur le droit de la consommation. Revue Burkinabè de droit, 33-34, 105–122. Retrieved from: http://www.ohada.com/doctrine/ohadata/D-05-26.html. (accessed 31 July 2018).
Tralac (Trade Law Centre). (2019). African continental free trade area (AfCFTA) legal texts and policy documents (7 July 2019). Retrieved from: https://www.tralac.org/resources/by-region/cfta.html. (accessed 14 August 2019).
UNCTAD. (2017). Report of the intergovernmental group of experts on consumer protection law and policy on its second session (7 August 2017). Retrieved from:https://unctad.org/meetings/en/SessionalDocuments/cicplpd9_en.pdf. (accessed 5 December 2018).
UNESCO. (2018). Literacy and formal education. Retrieved from: http://www.unesco.org/new/en/dakar/education/literacy/. (accessed 5 August 2018).
United Nations. (1992). The Dublin statement and report of the conference on water and the environment.
United Nations. (2015). United Nations Guidelines on Consumer Protection 2015.
Weber, F., & Hodges, C. (2012). The Netherlands. In C. Hodges, I. Benohr, & N. Creutzfeldt-Banda (Eds.), Consumer ADR in Europe (pp. 166–203). Oxford: Hart.
Wilhelmsson, T. (2002). Private law in the EU: Harmonised or fragmented Europeanisation. European Review of Private Law, 10, 77–94.
Wilhelmsson, T. (2006). Harmonizing unfair commercial practices law: The cultural and social dimensions. Osgoode Hall Law Journal, 44, 461–500.
World Bank. (2018). Access to electricity (% of population). Retrieved from: https://data.worldbank.org/indicator/EG.ELC.ACCS.ZS?locations=LR-ZG. (accessed 26 July 2018).
Zeija, F. (2018). Consumer protection in Uganda: The law in theory and practice. Journal of Consumer Policy, 41, 455–471.
Zerbst, F. (2010). In debt? Help is at hand. Mail & Guardian, 20-12-2010. Retrieved from: https://mg.co.za/article/2010-12-20-in-debt-help-is-at-hand. (accessed 12 December 2018).
Cases
South Africa
Truworths Ltd and Others v Minister of Trade and Industry and Another 2018 (3) SA 558 (WCC)
Legislation
European Union
Directive 2011/83/EU on Consumer Rights (2011) OJ L 304/64
Kenya
Consumer Protection Act 2012
Nigeria
Connection and Disconnection Procedures for Electricity Services, GN 72 in the Official Gazette of the Federal Republic of Nigeria, No 103, vol 94 of 21 December 2007
Seychelles
Consumer Protection Act 2010
South Africa
Constitution of the Republic of South Africa 1996
Consumer Protection Act 68 of 2008
Consumer Protection Act Regulations, Government Notice R293 in Government Gazette 34180 of 1 April 2011
Consumer Protection Bill 19 of 2008
Financial Sector Regulation Act 9 of 2017
National Credit Act 34 of 2005
National Credit Amendment Act 7 of 2019
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Water Services Act 108 of 1997
Zimbabwe
Consumer Contracts Act 6 of 1994, Cap 8:03
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher’s Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Naude, T. Fragmentation Versus Convergence of Consumer Law Within One Legal System and Across Legal Systems: An African Perspective. J Consum Policy 43, 11–33 (2020). https://doi.org/10.1007/s10603-019-09429-w
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10603-019-09429-w