The Consumer Protection Act overrides most other legislation as it benefits the consumer more almost on every occasion. On this basis, it is the third most important statute in South Africa, behind the Constitution and the Public Financial Affairs Legislation.

CPA has massive impact on waste management

by Gavin Gow

The Consumer Protection Act (CPA) lays down general principles, as opposed to the details provided by the Waste Act and other laws in this field.

Supply chain – strict liability  

One of the main differences between the CPA and the Waste Act is that in terms of the CPA, any supplier within the supply chain can be held liable in full for the negligence of any of the others in that chain, regardless of whether that supplier ( held liable) is negligent or not. There does not have to be a monetary aspect for a supply to be created in this chain. This is in contrast with the Waste Act in terms of which the liability is interrupted when the goods/containers are handed over to responsible people, such as those who specialise in waste disposal. Therefore, theoretically, the initial supplier in the chain can be held liable in terms of the CPA for the people poisoned by its drums that eventually end up on a refuse site.

Know the harm

Scope of harm suffered in terms of the CPA

Suppliers will only be held liable for harm suffered by the consumer if the harm relates to the supply of unsafe goods: a product failure, defect or hazard in goods, or insufficient instructions or warnings given to the consumer relating to any hazard arising from the use of those goods. But, as above, negligence is not required to establish liability.

Types of harm covered by the CPA

The harm for which a supplier can be held liable includes death or injury of a consumer; an illness of a consumer; any loss of, or physical damage to any property, whether movable or immovable; as well as any economic loss that results from the abovementioned harm – that is, consequential damages. The CPA contains important definitions of ‘unsafe’, ‘defect’ and ‘hazard’. It is important that suppliers of chemicals and hazardous substances familiarise themselves with these definitions and take reasonable steps to avoid liability in terms of the Act.

If there are reasonable grounds to believe that any goods may be unsafe, or that there is a potential risk to the public of exposure to those goods, the National Consumer Commission may require the producer undergo an investigation as to the nature, causes, extent and degree of the risk to the public and to carry out a recall programme on any terms required by the commission. The Act also deals with the recovery and safe disposal of designated products or components.

CPA compliance  

It is important to ensure that all the suppliers within your supply chain are CPA compliant. Besides civil liability through the courts, the CPA imposes a maximum sanction of 10% of the annual turnover of the entire group. Keep in mind the various mind-boggling decisions of the Competition Board. This Consumer Commission will run along similar lines, so be warned!

Relevant sections of the CPA

With regard to waste disposal, there are various very serious sections of the CPA that have to be complied with. Some of these are:

–          Warnings and instructions: warning of risks for hazardous goods, for example

–          Safety monitoring and recall (industry codes)

–          Recovery and safe disposal

–          Packaging: This should enable consumers to understand the goods supplied to them and to see what they are buying. This should avoid many returns in the first instance, to which the consumer is entitled in terms of the CPA, due to implied warranty of quality in terms of the CPA.

–          Product labelling: The CPA also sets standards for product labels and marketing of goods and services. A supplier must not apply a trade description to a product that could mislead a consumer as to that product. The supplier must not, by words or conduct, directly or indirectly imply a false, misleading or deceptive representation to a consumer in relation to the marketing of any goods or services.

–          Displaying of prices

Waste management plan for the packaging and paper industry

The Waste Management Plan (WMP) for any industry must comply fully with the CPA. There are two key components to the plan – the waste supply chain and the development of markets – to absorb the extra waste collected. There is a specific section of the CPA that states that where the industry and WMP, or regulations, have provided for a goods collection facility for specific waste types, consumers may dispose or deposit such goods at such facilities.

No exemption clauses are allowed in terms of which the consumer waives any rights accruing to them terms of the CPA. Further, the original supplier cannot delegate any responsibilities to the end supplier or anyone else.

Gavin Gow is an attorney and conveyancer with over 30 years of practice experience. He is director of Gavin Gow Inc. Attorneys & Conveyancers, in Umhlanga, KwaZulu-Natal.