Legal SA: The CPA: Non-Refundable Deposits & Cancellation Fees (Part 8)

This is the 8th insert of 8 dealing with the captioned matter – a topic that is regularly entertained by the CPA Commissioner of late

 

THE CONSEQUENCES OF NON-COMPLIANCE/BREACHING DEEMING PROVISIONS(CPA sections in brackets)

 

·                     It may result the agreement as a whole or the clause in question being void & thus unenforceable (51)

·                     Factorsthe court must consider (52) – (This is a useful guideline for suppliers)

·                     Did the consumer get fair value

·                     The balance of power & e.g. knowledge & literacy of consumer such as first time traveler

·                     Foreseeable circumstances

·                     Conduct of the parties

·                     Use of plain language

·                     Did or should customer have know of the T&C based on ‘custom of trade’ or ‘any previous dealings with supplier’ (This make record-keeping important)

·                     Steps the court may take (52):

·                     If court determinestransaction or agreement was, in whole or in part, unconscionable, unjust, unreasonable or unfair (i.e. sections 40 & 48) – it may order supplier to (1) Restore money or property to the consumer; (2)Compensate the consumer for losses; (3) Require the supplier to cease any practice, or alter any practice, form or document

·                     IN ADDITION to the above it can ‘make any order that is just & reasonable’;

  

·                     Possible penalties::

·                     issue a compliance notice i.e. requiring supplier to rectify transgression;

·                     Contravention of section 107 (1) (Breach of confidence): a fine or imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment (111)

·                     in any other case, to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment

·                     In other cases (112) an administrative fine imposed in terms of this Act may not exceed the greater of 10 per cent of the respondent’s annual turnover during the preceding financial year; or R1 000 000, 00

·                     When determining an appropriate administrative fine, the Tribunal must consider the following factors (112):

·                     The nature, duration, gravity and extent of the contravention;

·                     any loss or damage suffered as a result of the contravention;

·                     the behaviour of the respondent;

·                     the market circumstances in which the contravention took place;

·                     the level of profit derived from the contravention;

·                     the degree to which the respondent has co-operated with the Commission and the Tribunal; and whether the respondent has previously been found in contravention of this Act.