In order to facilitate compliance with the Consumer Protection Act, 2008 (“the CPA”), the transitional provisions found in Schedule 2 of the CPA allow for the implementation of the CPA in a staggered process.  The CPA has, for want of a better description, two ‘implementation dates’.

The first date is the ‘early effective date’ which is twelve months after the date on which the CPA was signed by the President.  The ‘early effective date’ was 28 April 2010 and introduced the basic infrastructure of the CPA.  Those provisions of the CPA which came into effect as at 28 April 2010 include the following:

• the application and interpretation provisions of the CPA (sections 1 to 7);
• the establishment of certain national consumer institutions (sections 83 to 98);
• regulations promulgated by the Minister of Trade and Industry in pursuance of the powers conferred upon him in terms of section 120 and any other provision authorizing him to make regulations;
• the repeal of certain laws.

The second important date is the ‘general effective date’ which is the date on which any provision of the CPA not yet in force, takes effect, subject to the provisions of Items 2(3), Item 4 and Item 5.  The ‘general effective date’ was supposed to have been the date 18 months after 28 April 2010 but the Minister of Trade and Industry postponed the general effective date to 31 March 2011.  That means that those affected provisions of the CPA will only become effective on 31 March 2011.
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Item 3(1) of the transitional provisions deals with the CPA’s application to pre-existing transactions and agreements.  A pre-existing transaction/agreement refers to a transaction/agreement that was concluded before 31 March 2011.  The type of pre-existing transactions/agreements that the CPA will not apply to include:

• marketing activities (before 31 March 2011);
• transactions concluded or agreements entered into (before 31 March 2011);
• goods supplied or services rendered (before 31 March 2011).

In effect, though this would seem to suggest that the provisions of the CPA do not apply to contractual provisions currently being negotiated or already agreed upon and concluded, Item 3(2) identifies those provisions of the CPA that are of relevance to pre-existing transactions/agreements if such transactions/agreements are to exist on or after the second anniversary of the general effective date (i.e 31 March 2013).  These provisions deal with:

• the expiry and renewal of fixed term contracts;
• a consumer’s right to choose and examine goods; a consumer’s right with respect to the delivery of goods or supply of services; a consumer’s right to return goods; and the status of unsolicited goods and services;
• the right to plain and understandable language in contracts;
• the disclosure of reconditioned or gray market goods;
• the keeping of sales records;
• negative option marketing;
• the consumer’s right to assume that the supplier is entitled to supply and sell the goods;
• the consumer’s right to demand quality service;
• the consumer’s right to safe, good quality goods;
• implied warranties of quality;
• warranties on repaired goods;
• warnings of risks and the nature of the risks associated with the product;
• the payment of certain membership fees;
• closure of supply facilities;
• holding and accounting of amounts paid by consumers or in respect of property of the consumer and which is in possession of the supplier;
• certain loyalty programmes;
• section 61 which deals with product liability and applies to goods supplied after the early effective date;
• any provision of the CPA not otherwise contemplated in Items 3(2) to 3(4) and which will apply to any pre-existing activity to the extent that it is required to ‘ensure proper interpretation of, or compliance with and enforcement of, the provisions that are mentioned in subitems (2) to (4)’.  This is an intended catch-all provision which necessitates a careful examination of the scope and ambit of the CPA in order to make an assessment in this regard.

So what might seem as a temporary reprieve is in fact not.  Suppliers will be well advised when assessing their business activity vis-à-vis the CPA to assess their compliance with the CPA beyond the general effective date in respect of those transactions that are intended to endure at or beyond 31 March 2011.