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Practice note on the Consumer Protection Act, 2008

Friday, 03 July 2020  
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Practice note on the Consumer Protection Act, 2008

 

This practice note is advisory only and is not intended as specific professional advice, legal or otherwise. The merits of every situation should be considered separately and specific professional advice in relation thereto should be sought.

1.   Introduction

The Consumer Protection Act 2008, Act No. 68 of 2008) was enacted to protect the interests of all consumers in South Africa. Architectural professionals provide various architectural services to consumers; therefore, the Consumer Protection Act binds them. We set out below provisions of the Act that Architectural Professionals should take notice of and comply with, when providing services to consumers as envisaged by the Consumer Protection Act.

 

2.   Consumer rights

Protection against discriminatory marketing

  • Architectural Professionals may not directly or indirectly treat any customer or consumer differently than any other, in manner that constitute unfair discrimination.

 

Right to restrict unwanted direct marketing

  • Architectural Professionals must not infringe consumer’s right to privacy through direct marketing. Should a consumer request that an Architectural Professional should cease further direct marketing, an Architectural Professional should cease any direct marketing as requested.

 

 Consumer’s right to select suppliers

  • Architectural Professionals may not require as a condition of offering architectural services to a consumer require that consumer should use contractors, subcontractors or suppliers nominated by him/her unless he/she can demonstrate advantages for such a proposal to a consumer. 

 

Expiry and renewal of fixed term agreements

  • If an Architectural Professional undertakes to perform architectural services on a fix term agreement, such fixed term agreement must not be exceeded. The Architectural Professional should notify a consumer in writing about the expiry of the fix term agreement, including about any changes to the agreement if it is renewed or continues beyond the expiry date.
  • If an Architectural Professional cancel a fix term agreement due to a consumer’s breach of the fix term agreement, for example due to failure to pay fees, an Architectural Professional must first afford a consumer 20 business days within which to remedy the breach.
  • A consumer remains liable to an Architectural Professional for any amounts owed to the Architectural Professional until the date of cancellation and an Architectural Professional is entitled to impose a reasonable cancellation penalty with respect to the services provided. In addition, an Architectural professional must credit a consumer for any amount that remains the property of the consumer as of the date of cancellation.

 

Consumer’s right to choose or examine services

  • If a consumer agrees to appoint an architectural professional to design a building based on the description or samples of designs advertised by the architectural professional, the designs delivered to the consumer must in all material respects and characteristics correspond to the advert as the case may be.

 

Consumer’s rights with respect to services

  • Architectural professionals are required to perform services they are appointed for within the agreed timelines or within a reasonable time after the conclusion of the agreement and the professional is responsible for the designs and/or building plans until they are delivered to the consumer.
  • If the agreement between the architectural professional and a consumer does not provide for specific date or time for performance of the service, the architectural professional must not require a consumer to accept performance of services at unreasonable time.
  • When an architectural professional delivers designs to a consumer, the architectural professional should allow a consumer reasonable opportunity to examine the designs and to ascertain whether he/she is satisfied with the quality of work undertaken and whether designs are in accordance with the brief.  Architectural designs should be delivered at a place, on a date or at a time agreed with the consumer.

 

Right to information in plain and understandable language.

  • Architectural professional appointed to undertake architectural work should explain architectural vocabulary to consumers in plain language to enable an ordinary consumer with average literacy skills to understand.

 

Product labelling and trade descriptions

  • Architectural professionals must not knowingly promote their services to mislead consumers.

 

Sales records

  • Architectural professionals must provide a written record of each transaction to a consumer, the record should include the following; “Architectural Professional full names; principal place of business; date; services to be provided; price for the services; total price before taxes; amount of taxes payable; and the total price including taxes.

 

 Marketing of services

  • Architectural professionals should not market their services in a manner that is reasonably likely to imply a false or misleading representation or fraudulent conduct to consumers.

 

Bait marketing

  • Architectural professionals must not advertise services at a specific price to deceive consumers when the actual price for services is higher than the advertised price.

 

Referral selling

  • Architectural professionals must not offer architectural services to consumers on condition that a consumer will receive a rebate or other benefits, if the consumer subsequently furnishes the professionals with names of consumers who may require architectural services or refer other consumers to the professional.

 

Unconscionable conduct

  • Architectural professionals must not use physical force, coercion, undue influence, pressure, duress, or harassment, or unfair tactics or any similar conduct for negotiating, conclusion, execution or enforcement of an agreement to provide architectural services to a consumer.

 

False, misleading or deceptive representation

  • Architectural professionals should not market their services, by word or conduct, directly or indirectly to mislead or deceive consumers. A deception could be a claim that an architectural professional is affiliated to an organisation when he or she is not or a false statement about his/her status, and/or connection. Or that a consumer will derive a particular benefit if they assist the architectural professional in obtaining a new or potential customer.

 

Unfair, unreasonable or unjust contract terms

  • Architectural professionals must not offer architectural services on unfair, unreasonable or unjust prices or on terms that are unfair, unjust or unreasonable.

 

Written consumer agreements 

  • Architectural professionals should furnish consumers with a copy of the terms of the agreement which must be plain and understandable setting out the itemised breakdown of the consumer’s financial obligations.

 

Consumer’s right to demand quality service

  • When an architectural professional undertakes to perform architectural services for a consumer, such consumer has a right to the timely performance and completion of those services and timely notice if any unavoidable delay in the performance of the services. Services delivered must be of good quality. If an architectural professional fail to perform a service to the standard accepted, a consumer may demand specific performance or a refund having regard to the extent failure.

 

Protection of consumer rights

  • If a consumer has exercised his/her rights set out in the Consumer Protection Act, architectural professionals must not penalise that consumer or alter the terms or conditions of the agreement to the detriment of the consumer or take any action to suspend or terminate the agreement.

 

Identification of supplier

  • Architectural professionals must not provide services to consumers under any name except the architectural professional’s full names, identity document, and registration number. In the case of a juristic person, business registration number, and professional registration number. Furthermore, business letters should include the following information:

 

§  The name, title, or description under which the business is carried
§  Statement of the primary place at which, or from which, the business is carried on;
§  The name of the person to whom the business is registered.