Consumer Protection Act, 2008 (Act No. 68 of 2008)RegulationsConsumer Protection Act Regulations44. List of contract terms which are presumed not to be fair and reasonable |
| 1) | For purposes of section 120(d) of the Act, a term of a consumer agreement between a supplier operating on a for-profit basis and acting wholly or mainly for purposes related to his or her business or profession and an individual consumer or individual consumers who entered into it for purposes wholly or mainly unrelated to his or her business or profession is presumed to be unfair if it— |
| a) | has the purpose or effect of a term listed in subregulation (3), and |
| b) | does not fall within the ambit of subregulation (4). |
| 2) |
| 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. |
| c) | A term, which falls within the ambit of subregulation (4), remains subject to sections 48 to 52 of the Act. |
| d) | This regulation does not derogate from provisions in the Act or other law in terms of or in respect of which a term of an agreement is prohibited. |
| 3) | 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. |
| 4) |
| a) | Paragraph (k) of subregulation (3) does not apply to a term in terms of which a supplier of financial services reserves the right to unilaterally terminate an open-ended agreement without notice, but the supplier is required to immediately inform the consumer thereof. |
| b) | Paragraph (h) of subregulation (3) does not apply to— |
| i) | a transaction in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the trader does not control; |
| ii) | an agreement for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency; |
| iii) | a price-indexation clause, where lawful, but the method by which prices vary must be explicitly described. |
| c) | Paragraph (i) of subregulation (3) does not apply to— |
| i) | a term under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, but - |
| ii) | the supplier must immediately inform the consumer thereof; and |
| iii) | the consumer is free to dissolve the agreement at the earliest opportunity; |
| iv) | a transaction in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the trader does not control; |
| v) | an agreement for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency; |
| vi) | a term under which the supplier reserves the right to unilaterally alter the conditions of an open-ended agreement, but- |
| ) | the supplier must forthwith inform the consumer thereof; and |
| bb) | the consumer is free to dissolve the agreement immediately; |
| d) | Paragraphs (r) and (s) of subregulation (3) do not apply to any penalty, fee or compensation which the supplier is entitled to charge under the provisions of this Act or any other law. |