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A Small Business Guide to the CPA

General rules to bear in mind when considering the Consumer Protection Act.

Dale Warburton

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Despite the Consumer Protection Act (‘CPA’) having been in force for almost a year, many SMEs remain unclear about the obligations imposed and rights conferred by it.

When will the CPA apply?

The CPA applies to all transactions for goods or services in South Africa in the ordinary course of business.  A ‘consumer’ is defined as any person (which includes juristic persons) to whom goods or services are marketed, the person transacting as well as the beneficiary of a particular good or service.  A ‘supplier’ is any person who markets goods or services.

The phrase “ordinary course of business” means that if a supplier sells a product to a consumer, that consumer can only enforce his rights if the supplier is in the business of selling that particular product or service. Similarly, the consumer’s rights can only be enforced by consumers as defined – natural persons (individuals) or juristic persons (such as companies) with an annual turnover of less than R2 million. The intention is clear, to protect individuals and small businesses.

There are a few general rules to bear in mind when considering the CPA, the most important of which are articulated below.

 Suppliers and prohibited conduct

Generally, interactions between suppliers and consumers that are unfair, dishonest, misleading or unreasonable are strictly prohibited. Suppliers may not make use of false, misleading or deceptive representations through the use of exaggeration, whether expressly or implied. This would include false representations about the ingredients or quality of a product, or even that a service or repair is necessary or advisable.

Suppliers are also prohibited from making fraudulent, deceptive, false or misleading representations on the nature, advantages, properties, benefits, qualities and availability of their products. This entails that practices such as bait marketing and negative option marketing are no longer permitted.

 Suppliers and direct marketing

The CPA prohibits suppliers from engaging in direct marketing without the consumer’s consent. Any agreement flowing from direct marketing may be cancelled, for any reason, within 5 business days. This is known as the consumer’s ‘cooling-off’ right, and gives consumers a chance to reconsider what may have been a pressured decision.

 Right to return defective goods

The CPA provides consumers with a right to return goods within 10 business days if the goods were defective, unfit for their purpose or not as agreed. Consumers may then choose between a replacement, a refund or a repair (the ‘three R’s’). Furthermore, the Act provides an automatic 6 month warranty that the goods or services be free from defects. Should the goods become defective within 6 months, consumers may then request one of the 3 R’s.

 Loyalty schemes and competitions

Suppliers may only restrict the use of loyalty rewards for a maximum of 90 days in a calendar year, and only after giving the consumer 20 days’ notice.  For example, a consumer would be entitled to receive notice from an airline specifying the 90-day period in which his loyalty credits cannot be redeemed. In all other cases, loyalty rewards must be treated in the same manner as cash.

Suppliers are also required to adhere to strict requirements for competitions – they may not charge more than R1,50 per entry and the competition rules must be made available to the  consumer before entering.

 Overselling and overbooking

If a supplier oversells or overbooks, it must refund the consumer with interest and other costs incidental to the breach.

Consumers also have a right to cancel advanced reservations, subject to the supplier’s right to impose a reasonable charge (which will be determined in the circumstances).

 Grey goods and disclosure of price

A supplier is obliged to provide a clear notice if goods are grey or reconditioned. At point of sale, the supplier must expressly draw the consumer’s attention to the notice and explain it in plain terms.

The price of all products and services must be clearly advertised. Unless it is an obvious error, if there are 2 different prices, the supplier must charge the lower price. If an advertised price refers to a discount or saving, then the price payable is the advertised price minus the discount or saving, unless both the full and lower price are displayed.

Terms and conditions

The CPA prohibits excessively unfair or unjust terms, such as terms conferring the right to unilaterally alter the terms of an agreement, and requires that certain terms be explicitly drawn to the consumer’s attention, particularly those that exclude liability or that constitute an assumption of risk. Similarly, unreasonable or unjust contract terms are prohibited, including terms that are excessively one-sided or adverse to the point of inequity.

Fixed Term Agreements

The maximum period for a fixed term agreement is set at 24 months, unless there is a demonstrable benefit in the consumer’s favour. Consumers are entitled to cancel fixed term agreements on 20 days written notice, subject to the supplier’s right to impose a reasonable cancellation fee (which cannot negate the consumer’s right to cancel). Suppliers must advise their consumers of the impending expiry of the contract 40-80 days before such expiry, and must also inform them of any proposed material changes. Unless the consumer cancels such contract, it will be automatically renewed on a month-to-month basis.

 Breach of CPA

It is clear that the CPA has changed the legal landscape and shifted the power from suppliers into the hands of consumers. The National Consumer Commission is tasked with investigating alleged offences and enforcing the Act. It is empowered to impose a fine of up to a maximum of 10% of the supplier’s annual turnover for breaches. Whilst this sanction is probably reserved for the most severe contraventions, the reputational damage flowing from a lesser sanction will far outweigh the cost of ensuring compliance at the outset.

Dale Warburton consults to various clients on compliance with the CPA through Caveat Legal. Hehas a BA and LLB from UCT. He was admitted as an attorney in early 2011 after completing articles at Cliffe Dekker Hofmeyr. Dale spent a year at Clicks Group advising and training on the Consumer Protection Act, and establishing standard operating procedures for the group. www.caveatlegal.com

Company Posts

An Introduction To COID Registration And The Letter Of Good Standing

Company Partners is a leading COID Registration Service Provider in South Africa. They also assist Companies to obtain a Letter of Good Standing from COIDA.

Company Partners

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Compensation for Occupational Injuries and Diseases Act

What is COIDA?

The Compensation for Occupational Injuries and Diseases Act (Act 130 of 1993) replaced the “Workmen’s Compensation Act” (Act No. 30 of 1941), and was amended in 1997.

The Compensation Fund provides compensation for occupational injuries or diseases sustained or contracted by employees in the course and scope of their employment, or their dependents for death resulting from such injuries or disease, and to pay reasonable medical expenses incurred.

Who must register with COID?

According to prescription, anyone who employs one or more part- or full time workers must register with the Compensation Fund and pay annual assessment fees. The Compensation Fund is a trust fund that is controlled by the Compensation Commissioner and employer contributes to the Compensation Fund. The Commissioner is appointed to administer the Fund and approve claims lodge by employees or their dependants.

An employer must register with COID within seven days after the day on which he employs his first employee. An employer must register with the Commissioner by submitting Form W.As.2 with the particulars required therein to the Commissioner.

During COID registration copies of the following documentation should be included:

  • the registration certificate from the Register of Companies if they are a company or closed corporation;
  • or their ID document, if they are sole owners of the business.

What are assessment fees?

The annual assessment fee is of an employer is based on their employee’s earnings and the risks associated with the type of work or profession. Before 31 March each year, all employers (including contractors) must submit a statement (return) of earnings reflecting amount paid to all their workers from the beginning of March to the end of February.

Assessment tariffs, reviewed annually, are based on the risks related to a particular type of work.

Payment of assessments

  • Employers must pay within 30 days of receiving the notice of assessment;
  • Employers must apply in writing to settle assessments in installments (not exceeding 12 months);
  • 20% of the outstanding balance due is required upfront before instalment arrangements can be applied for;
  • Should the instalment fall overdue, the full amount becomes due and payable immediately.

Failure to comply may result in:

  • Penalty can be imposed for late submission of ROE (Sect 83(2) – 10%);
  • Estimations will be done if no returns (ROE) are submitted (Sect 83(6)(a);
  • Penalty on non-payment of assessments (Sect 87(1) – 10%);
  • Interest on late payment of assessment (prevailing prime rate);
  • Penalty for late reporting of accidents
  • A penalty is imposed where an employee meets an accident / death and employer is not registered with the Compensation Fund (not exceeding full compensation payable to the employee (Sect 87(2)(a))
  • An employer who fails to comply with a provision of this section shall be guilty of an offence – Sect 81(3)

Contractors and sub-contractors: 

  • Contractors and sub-contractors must register with the Compensation Fund and pay assessments;
  • Failure to comply with the COID Act by the sub-contractor will make the mandatory or main contractor to be responsible for any claims from the sub-contractor’s employees (thus the need for a letter of good standing);
  • The contractor may recover any such payments directly from the sub-contractor.

Letter of Good Standing:

The Letter of Good Standing is a certificate issued by the Compensation Fund to verify that a business actually exists, has paid all its statutory dues, has met all filing requirements and, therefore, is authorised to operate.

Conditions when applying for a letter of good standing:

  • Employer must be registered with the Fund as per section 80 of the COID Act,
  • Employer must have submitted all returns of earnings as per section 82 0f the COID Act,
  • Employer must be fully assessed as per section 83 of the COID Act,
  • Employer must have paid/ settled all outstanding debt as per section 86 of the COID Act.
  • Employers that have entered into an instalment arrangement will only be issued with a letter of good standing on a month‐to‐month basis.

Related: Register A Company In South Africa

What happens if an employee is injured?

employee-injury

The amount of compensation paid to you, depends on how much you were earning when you got injured or diagnosed. If you’ve stopped working by the time a disease is diagnosed, the compensation will be worked out according to what you would’ve been earning.

Types of compensation:

Medical costs: All your medical expenses will be paid for up to 2 years, from the date of the accident or the diagnosis of the disease. You are free to choose a medical service provider you want to consult with. All medical accounts and reports should be submitted to the Commissioner.

Temporary disability:  When you’re unable to work or can’t do all your work because of an injury or disease.

All medical expenses are also paid if the medical accounts are submitted to the Commissioner.

You can claim compensation for temporary disability for 1 year. This can be extended to 2 years, after which the Commissioner may decide that the condition is permanent and grant compensation on the basis of permanent disability.

Permanent disability:  A permanent disability is an injury or illness that you will never recover from. The seriousness of the disability will determine whether you’ll never be able to work again or whether you’ll find work more difficult.  If the disability is more than 30% disability, you will get paid a monthly pension. The size of the pension depends on what your wages were and on the seriousness of the disability.  If the disability is 30% or less, you’ll get paid a lump sum. The lump sum payment is a once-off payment.

Death benefits:  Burial expenses will be paid and the spouse of the deceased and children under the age of 18 (including illegitimate, adopted and step-children) are entitled to compensation.  If a family member that earns money to support the family (breadwinner) is killed by an occupational injury or disease, dependants can claim from the fund.

Company Partners

Company Partners is a leading COID Registration Service Provider in South Africa. They also assist Companies to obtain a Letter of Good Standing from COIDA.

Established in 2006, Company Partners guarantees that the services they offer meet the standards of the best in the industry. Over 30 full-time Consultants offer services and standards of the highest quality.


Useful Links

  1. COID Registration
  2. Letter of Good Standing

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Compliance

How To Stay On The Right Side Of The Law With A Marijuana Business

The verdict is in: It’s not (yet) legal to commercially grow cannabis, but there are multiple business opportunities for home growers that are on the right side of the law.

Nicole Crampton

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“The use, possession and cultivation of cannabis outside of a private space, or by, or around, under-age persons, still remains illegal,” says Paul-Michael Keichel, Partner at Schindlers Attorneys. “The caveat to this appears, however, to be that you may carry concealed cannabis in public, if the intention is to only consume it in a private space, away from under-age or non-consenting individuals.”

“What we are seeing is that most of our clients’ focus has been on the cultivation and commercialisation of cannabis itself. What is seemingly being overlooked are the secondary industries that will emerge or benefit from the legalisation of cannabis,” explains Maurice Crespi, Partner at Schindlers Attorneys.

“Take our M&R (medical and recreational) Cannabis Department as an example. Whilst not planned, it has emerged as a key department at Schindlers Attorneys. If cannabis legalisation presents an opportunity for attorneys, it begs the question as to what industry would not be presented with some form of opportunity as a result of its legalisation.

“Transport, courier services, injection moulding, advertising, fashion, accountants, medical, textiles and so on, are now all in a position to exploit the legalisation of cannabis to their benefit. I’m yet to think of an industry that will not be in a position to benefit from the legalisation of cannabis. Even Coca-Cola has found a way,” says Maurice.

Related: 10 Cannabis Business Opportunities You Can Start From Home

Grey areas yet to be resolved

“The question that has been left open, of course, is how and where does one get the cannabis seeds to grow the plants that one is now permitted to cultivate at home, or in private? Must these be shared, or can they be sourced or sold commercially?” says Paul-Michael.

“Until this answer is clear (we’re researching presently), it’s better to err on the side of caution. However, now that the major part of the fight is lost for them, I would be very surprised if Parliament doesn’t start appreciating the massive potential for increased tax revenue that would flow from a formalised and regulated cannabis industry.

“It serves almost everyone’s interests for them to entertain this option, especially because studies show that full legalisation decreases associated harms more than decriminalisation. Consider quality control, de-stigmatisation, elimination of the black market, beneficiation, and the list goes on,” explains Paul-Michael.

“That stated, SAHPRA (www.sahpra.org.za) is entertaining licence applications by growers and distributors for medicinal use of cannabis. The requirements are very tight but, for those able to comply and get licences, the commercial opportunity is almost unquantifiable,” says Paul-Michael.

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Compliance

Innovative Business Solutions And Compliance

Compliance with certification is a strong way to demonstrate that you are managing your business proactively.

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As a business owner, you are probably aware of where your business could improve. Sometimes a business owner would like to improve their business but is not sure how to begin. Therefore, it is of the utmost importance to develop an environment which will foster innovation and create key steps to improve your business while simultaneously trying to comply with all of the necessary legalities.

It is important for an entrepreneur to assess their situation first. Most business owners will ask the question why? Why can’t everyone will follow the same steps to success. Every business is different and unique, therefore, before you start making changes within your business, it is a good idea to make sure you have a full understanding of the factors affecting your business success and whether you are complying with necessary legalities.

Compliance may actually improve performance by giving your business a competitive edge. Legal compliance can assist you with improving your customer relations, enhancing your reputation and most importantly avoiding the cost of legal proceedings.

There’s this saying, ‘What gets measured gets improved’ explains Charles Gaudet, founder and CEO of Predictable Profits, a consulting firm that offers advanced marketing techniques to entrepreneurs who are passionate about expanding their small businesses.

Related: Compliance For Entrepreneurs

Here are a few strategies that you can use to make your business more profitable in the future.

Innovative Marketing solutions

For every business owner, marketing is an important tool to improve their businesses. You may think that you are missing an opportunity if you don’t jump right attracting customers with some type of marketing message.

However, as quoted by John Rampton ‘’one of the best things you can do to achieve growth is to slow down and spend time studying the trends.” What does this mean?  While rushing into marketing your product you tend to forget certain details, and once it is out in the public its difficult to forget or to undo. Therefore, its very important to research the market and consumer trends before launching anything.

This becomes very important when you consider the potential risk to your business for the infringement of another product, which is confusingly similar to your product. You also do not wish to be guilty of using a similar brand name, slogan or logo as one of your competitors.  Therefore, before you set out your personalised solutions when designing ads and directing messages to consumers ensure you are not infringing on anyone else’s rights as this will likely lead to expensive legal costs for your business.  

Compliance Breeds Confidence

It is important to remember that clients are concerned whether suppliers are properly compliant. Compliance with certification is a strong way to demonstrate that you are managing your business proactively and that the money a customer will spend i.t.o. buying your goods or services, is in safe hands. Conversely a failure in compliance can, as well as exposing you to the risk of regulatory sanctions, severely damage your business’ credibility.

Related: Why HR Legislation Compliance Can Curb Business Failure

For example, in the financial services industry there is an increasing requirement to demonstrate strong security to both external auditors and prospective customers.

With regulation that you feel is of no value, determine how to satisfy the requirements with the minimum effort necessary. Do, however, double check that you are not missing out on a benefit that may be rewarding for your business.

In conclusion, it is important to note when improving your business one always need to act in accordance with the correct laws and procedures. Therefore, if a company is embracing the difficult task of being compliant, I recommend using this as a competitive weapon to improve your business. It just might end up making you and your team better which is usually rewarded with more business.

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