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Control of Price Related Terms in Standard Form Contracts in South Africa

  • Jacques du PlessisEmail author
  • Wiaan Visser
Chapter
Part of the Ius Comparatum - Global Studies in Comparative Law book series (GSCL, volume 36)

Abstract

Many South African consumers are vulnerable to exploitation through the abuse of non-negotiable and non-transparent price-related standard terms. The common law of contract provides only limited relief in these circumstances. Some potential exists for developing common-law principles, such as those relating to when terms or their enforcement are contrary to public policy, in order to provide greater protection against unfair price-related terms. But the prospects for such a development are not promising, even though the South African Constitution allows courts to develop the common law to give effect to a horizontally-applicable Bill of Rights. By and large, the courts adopt a fairly conservative approach, which generally emphasises sanctity of contract.

However, the legislature has been quite active in creating regulatory standards, systems and structures that deal with the control of price-related terms. Notable examples include a general provision in the Consumer Protection Act 68 of 2008, which determines that the price or terms of a consumer contract must not be unfair, and other provisions which prohibit certain terms or misleading practices, or which presume certain terms to be unfair. Unfortunately, the enforcement of consumer legislation by statutory bodies has not been particularly strong.

Apart from these general provisions, consumers may also obtain relief against abuse of price-related terms through relying on rules that regulate specific industries. Thus, some success has been achieved in regulating the costs of credit and there are also strong signs of increased intervention in the problematic area of the high costs of electronic communication. Competition law has also proved to be effective in combatting some exploitative practices. Ultimately, the South African experiences indicate that rules aimed against the abuse of price-related standard terms must be backed up by effective enforcement mechanisms, especially where individual consumers lack the ability to enforce their rights.

References

  1. Davis D (2014) Foreword: The Competition Appeal Court. In: 15 years of competition enforcement – a people’s account. Booklet produced for the Eighth Annual Competition Conference, Pretoria, September 2014, pp 2–3Google Scholar
  2. Du Plessis J (2017) Section 41. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 2. Juta & Co (Pty) Ltd, Claremont, pp 41-1–41-19Google Scholar
  3. Hawthorne R, Goga S, Sihin R, Robb G (2014) Review of the Competition Commission Banking Enquiry. Centre for Competition, Regulation and Economic Development, JohannesburgGoogle Scholar
  4. Naudé T (2016a) Contract. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 1. Juta & Co (Pty) Ltd, Claremont, pp Contract-1–Contract-14Google Scholar
  5. Naudé T (2016b) Section 49. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 2. Juta & Co (Pty) Ltd, Claremont, pp 48-1–48-30Google Scholar
  6. Naudé T (2016c) Section 51. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 1. Juta & Co (Pty) Ltd, Claremont, pp 51-1–51-6Google Scholar
  7. Naudé T (2017a) Introduction to ss 48–52 and reg 44. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 1. Juta & Co (Pty) Ltd, Claremont, pp 48-1–48-12Google Scholar
  8. Naudé T (2017b) Regulation 44. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 2. Juta & Co (Pty) Ltd, Claremont, pp reg 44-1–reg 44-64Google Scholar
  9. Naudé T (2017c) Section 48. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 2. Juta & Co (Pty) Ltd, Claremont, pp 48-13–48-30Google Scholar
  10. Naudé T (2017d) Section 52. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act, Revision Service 2. Juta & Co (Pty) Ltd, Claremont, pp 52-1–52-34Google Scholar
  11. Naudé T (2017e) Towards augmenting the list of prohibited contract terms in the South African Consumer Protection Act 68 of 2008. J South Afr Law 2017(1):138–148Google Scholar
  12. Storer D, Teljeur E (2003) Administered Prices Executive Report. Report for National Treasury. http://www.treasury.gov.za/publications/other/epir/Summary%20of%20sector%20reports.pdf
  13. Van Eeden E (2013) Consumer protection law in South Africa. LexisNexis, DurbanGoogle Scholar
  14. Van Huyssteen LF, Lubbe GF, Reinecke MFB (2016) Contract general principles, 5th edn. Juta, ClaremontGoogle Scholar
  15. Van Zyl E (2014) Section 13. In: Naudé T, Eiselen S (eds) Commentary on the Consumer Protection Act. Juta & Co (Pty) Ltd, Claremont, 13-1–13-7Google Scholar

Copyright information

© Springer Nature Switzerland AG 2020

Authors and Affiliations

  1. 1.Stellenbosch University, Faculty of Law, Department of Private LawStellenboschSouth Africa
  2. 2.Max Planck Institute for Comparative and International Private LawHamburgGermany

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