a tripartite report - Unctad

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(c) Guide on Consumer Protection
The Guide deals with matters connected with
Part VIII (consumer protection) of the Act. It notes
that the Act itself explains what an unfair trading
practice is, and that a trading practice is unfair if it
misleads consumers, if it compromises the standard
of honesty and good faith which an enterprise
can reasonably be expected to meet, or if it places
pressure on consumers by use of harassment or
coercion, thereby distorting or likely distorting the
purchasing decisions of consumers.
The Guide therefore explains that the following elements
should be proven in determining whether
a trading practice is unfair:
Whether the conduct complained of was during
trading: In this test, there is need to prove that
unfair trading was engaged in during the course
of trading or normal course of doing business.
In order to prove this, there must be evidence of
receipts or invoices.
Whether the trading practice engaged in was
unfair: In this test, there is need to prove that
the practice complained of was unfair. An unfair
trading practice is engaged in when the said and/
of honesty and good faith which an enterprise
can reasonably be expected to meet; or places
pressure on consumers by use of harassment or
coercion; and thereby distorts or likely to distort,
the purchasing decisions of consumers.
Whether consumers have been misled: Misleading
conduct occurs when a false statement of fact is
made by one party to another party, which has
the effect of inducing that party into a contract.
Whether the practice compromised standard of
honesty and good faith: In this case, good faith
would mean the observance of honourable
intent in business relations and the avoidance of
any attempts to deceive consumers during the
performance of contractual obligations. Traders
and service providers therefore should desist
from entering into contracts with consumers for
goods or services that they know very well from
the onset that they will not deliver.
Whether pressure through harassment or coercion
was placed on consumers: There is need to prove
that the consumer was harassed or coerced.
Harassment occurs when someone behaves in
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an unpleasant or threatening way, and coercion
means forcing someone to do something they do
not want to do by threatening them.
Whether the pressure distorted or likely distorted
the consumer’s purchasing decisions: There is
need to establish how the consumer’s purchasing
decision was distorted. To distort means to change
the appearance, sound or shape of something
so that it is strange or unclear, or to change a
situation from the way it would naturally be.
240. The Guide goes on to explain and give
guidelines on the assessments tests and investigation
procedure for unfair trading practices in general.
The same is done for various unfair trading
practices under the following sections of the Act:
(i) section 47 (false or misleading representations);
(ii) section 48 (display of disclaimers); (iii) section
49 (supply of defective and unsuitable goods and
services); (iv) section 50 (product labelling); (v)
section 51 (price display); section 52 (consumer
product safety); and (vi) section 53 (unfair contract
terms)
3.3 The Investigative Wing
The investigative wing of the Commission is the
Secretariat headed by the Executive Director, who
is appointed by the Board of Commissioners in
terms of section 6(1) of the Act. The Executive Di-
mission
responsible for the day-to-day administration
of the Commission, under the direction of
the Board. The Board may also appoint in terms
of section 6(4) of the Act “such other staff as it
considers necessary for the performance of the
Commission’s functions under this Act”. Section
Inspectors “for the purposes of ensuring compliance
with this Act”, and for undertaking specialized
investigations.
The Secretariat, has wide investigative powers, including
the undertaking of dawn raids by the Inspectors.
To facilitate the Secretariat’s cartel investigations,
section 79(1) of the Act provides that “the
Commission may operate a leniency programme
where an enterprise that voluntarily discloses the
existence of an agreement that is prohibited under
this Act, and co-operates with the Commission in
the investigation of the practice, may not be sub-
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