Article courtesy of Law Dot News |Property Law | Consumer Protection Act

Does the Consumer Protection Act Protect Every Tenant?

“It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” (attributed to Mark Twain)

A married couple moved to Australia and rented out their South African family home while they tested the waters Down Under. Years later, once they had decided to remain abroad, they sold the property and gave their tenant notice under a clause that allowed them to cancel the lease on three months’ written notice.

The tenant argued that the lease was protected by the Consumer Protection Act (CPA) and could only be cancelled if he had materially breached it.

A recent Supreme Court of Appeal decision explains why the tenant’s CPA argument failed, but also why the landlords could not require him to vacate without following the proper eviction process.

Not every landlord is in the letting business

For a residential lease to fall within the CPA’s definition of a rental, the letting must take place in the ordinary course of business.

The court found that the couple were not in the business of letting property. They had let out their own home as a temporary measure while deciding whether their move abroad was permanent, not as part of an ongoing letting business.

They were not continually marketing rental services and were therefore not suppliers as contemplated by the Act. Their tenant, in turn, did not qualify as a consumer. On this basis alone, his reliance on the Act failed.

Where the line actually falls

Whether a lease falls within the CPA depends on its factual setting. What matters is whether letting property forms part of the landlord’s ordinary, continuing business activity.

A court must look at what business the landlord actually carries on and how that business operates. The fact that rent is being paid does not settle the question on its own.

A valid cancellation does not authorise an eviction

The High Court upheld the cancellation of the lease and ordered the tenant to leave by a fixed date.

The Supreme Court of Appeal set that order aside. Requiring the tenant to leave was, in effect, an eviction order, but the process required under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) had not been followed.

Under PIE, a court must decide whether eviction is just and equitable and determine an appropriate date for the tenant to leave.

A landlord therefore cannot treat cancellation of a lease as an automatic eviction. Cancelling the lease and evicting the tenant are two separate legal steps.

Two questions, not one

For landlords and tenants alike, the lesson is to keep these questions separate. First ask whether the lease falls within the CPA by looking at the nature of the landlord’s letting activity. Then, if the lease has ended and the tenant remains in occupation, the eviction process must still be dealt with under PIE.

A cancelled lease ends the contract, but it does not remove the tenant.

Not sure whether the CPA applies to your lease or whether the correct eviction process has been followed? Speak to us before taking the next step.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Article courtesy of Law Dot News | Business Attornies: Consumer Law – when disclaimers fail

She Fell Out of a Safari Vehicle: When Disclaimers Fail

“The big print giveth and the fine print taketh away.” (Tom Waits)

You have almost certainly signed a disclaimer at some point. A waiver before a trail run, an indemnity form before a bungee jump, a clause buried in a brochure. Businesses rely on these documents to limit their exposure when things go wrong. A 2026 Supreme Court of Appeal judgment is a sharp reminder that a disclaimer is only as good as the process behind it, and that courts will not lightly allow a company to escape liability on the strength of fine print that was never properly agreed to.

A birthday surprise that ended in serious injury

An Australian tourist was travelling in a converted safari truck in Botswana as part of a Southern African tour arranged by a safari business. The trip had been booked by her life partner as a birthday surprise, without her knowledge. While the truck was moving, she stood up to access her locker, which the tour operator actively promoted as accessible while the vehicle was in motion. She lost her balance and lurched against a window which fell out of its frame. She fell through the opening onto the tar road and sustained serious injuries.

When she sued for damages, the company relied on two disclaimers. The courts were not persuaded.

When does a disclaimer actually bind you?

The party relying on a disclaimer bears the onus of proving that a binding agreement was concluded. That requires more than paperwork. Our law requires the following:

• Personal consent. A disclaimer binds a person only if they have personally agreed to it, or if someone signing on their behalf had proper authority to do so. A life partner, family member, or friend cannot sign away your legal rights without your knowledge and express authorisation.
• Adequate notice. The disclaimer must be displayed with sufficient prominence to reasonably come to the attention of the person against whom it is enforced. Burying a liability exclusion under an “Insurance” heading does not meet that standard.
• Specific and unambiguous wording. Disclaimers are interpreted restrictively. General wording will not exclude liability for negligence unless it does so clearly and unequivocally. Ambiguity counts against the party that drafted the clause.
• Consumer Protection Act compliance. Where serious injury or death is a risk, sections 49 and 58 of the CPA require that the risk be specifically drawn to the consumer’s attention in plain language and in a conspicuous manner before the activity commences.

Two disclaimers, two failures

Both disclaimers relied on by the business failed these requirements. The first, buried in a brochure under an insurance heading, was too general to clearly exclude liability for the negligence alleged and had not been adequately brought to the victim’s attention. The second was an indemnity form signed by her partner without her knowledge. The SCA found no credible evidence that she was even aware of its existence. The business had only itself to blame. It had failed to ensure that each participant had personally concluded a binding indemnity.

The Court further indicated that having actively promoted the conduct that caused the injury, any disclaimer purporting to exclude liability for it would likely have been contrary to public policy and thus unenforceable.

What this means for businesses and consumers

Businesses operating in high-risk environments cannot afford to treat indemnity documentation as a formality. A disclaimer is not a substitute for safe practices and proper risk management. Consent cannot be assumed, and general wording will not suffice.

For consumers, your right to bodily safety is not easily signed away, especially by someone else on your behalf.

The lesson is straightforward. A disclaimer must be clearly communicated, properly understood and formally agreed to. It will not protect a business where consent is absent, notice is inadequate, or the wording does not clearly cover the risk.

If your indemnity documentation needs reviewing, or you are unsure of your rights as a consumer, ask us.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Article courtesy of Law Dot News | Constitutional Law and Consumer Law – Hidden Service Charges

Braai Chain Hauled Over the Coals for Hidden Service Charges

“The secret of life is honesty and fair dealing… If you can fake that, you’ve got it made.” (Groucho Marx)

We’ve all had this experience – meal over, relaxed and happy, you call for the bill and decide to reward your friendly and helpful waitron with a good tip. Only to find, on checking the bill when you get home, that the restaurant had already added a “compulsory service charge” (perhaps 10% or 15% – sometimes even more). When you challenge it, the manager points to the small print on the menu which says something like “service charge applies to tables of six or more”, or “discretionary service charge may be levied”.

And it’s not only restaurants that engage in such shenanigans. Perhaps it’s a builder or any other service provider adding on bits and pieces to an invoice that you hadn’t noticed when you signed up with them.

Is this kind of behaviour allowed?

The devil, as always, is in the details. If the add-on was properly disclosed to you upfront, you have no legal leg to stand on. It’s up to you to check the menu, or the supplier’s website and Ts and Cs, before ordering.

But it’s a very different story if the add-on was not properly disclosed upfront by the supplier. As a recent judgment of the National Consumer Tribunal (“the Tribunal”) shows, heavy penalties await any “supplier” (widely defined to include not only restaurants and retailers, but anyone who markets or supplies any goods or services to consumers) who breaches any of their many obligations under the CPA (Consumer Protection Act). And that includes “no hidden charges allowed”.

Being found guilty of “prohibited conduct” will be an expensive exercise. Witness the R1m administrative fine imposed recently on a fast-food chain specialising in that beloved South African tradition – braaivleis.

The braai fast-food chain and the disgruntled customer

Acting on a tip-off from a customer, the NCC (National Consumer Commission) found that a fast-food chain, specialising in “organic braai fast food” (chew on that description for a moment) with 16 outlets across Gauteng was adding a service fee over and above its advertised prices. No mention of this was advertised in its branches, on its menus, or on its website.

Unabashed, the chain argued before the Tribunal that it was fully compliant with the CPA, that the charge was a fee “to ensure the best service to the consumer” and that there is “a transparent general practice to disclose cost structures rather than hide behind an exorbitant price model.”

The Tribunal, deeply unimpressed with this (frankly baffling) line of reasoning, found the chain guilty of prohibited conduct and gave it 90 days to pay a R1m administrative fine.

Two breaches of the CPA

The chain was found guilty of two contraventions of the CPA:

1. That as a supplier it “must not require a consumer to pay a price for any goods or services higher than the displayed price for those goods or services.” 

2. It must also “provide a written record of each transaction to the consumer to whom any goods or services are supplied.” This record “must include at least the following information: the address of the premises at which, or from which, the goods or services were supplied.” Without that, as the Tribunal put it, “vulnerable consumers could find it difficult to institute legal proceedings and enforce their rights.”

A R1m fine for “preying on unwitting customers for selfish financial gains”

The chain, said the Tribunal, had “acted deceitfully towards its customers and contravened the CPA’s significant provisions. It acted contemptuously towards the very consumers who supported it.

Accordingly: “the Tribunal considers it appropriate to impose an administrative fine that will deter it and other suppliers from preying on unwitting consumers for selfish financial gains.”

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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Article courtesy of Law Dot News | Consumer Law – new car issues

Brand-New Car Giving You Nightmares? CPA to the Rescue

“The Consumer Protection Act 68 of 2008 (CPA) establishes a broad and comprehensive scope for consumer protection. Its purview includes developing and maintaining a consumer market in such a way as to ensure fairness, accessibility, effectiveness, sustainability and responsibility for the benefit of consumers” (Extract from judgment below)

You drive your brand-new car home, eager to take the family out for a first spin. Happiness! Until suddenly the car won’t start, or you notice a funny rattling noise, or you notice rust, or … it could be anything, because although “brand new” should in theory mean “free of defects”, that’s not always so in the real world.

You return to the dealership and demand a refund, or a replacement, or at least a courtesy car and a repair. “Nope, sorry” says the dealership, “there’s nothing wrong with it/the warranty doesn’t cover it/it’s not our problem/blah blah blah” – what can you do?

Step One: Exhaust the CPA’s dispute resolution processes

• A motorist’s brand-new VW Polo Vivo wouldn’t start after it was delivered to her. It was towed to the dealership which reported that it was in working order and not defective.
• A few days later it again wouldn’t start, instead making a “clack clack noise”. The problem was diagnosed as a loose fuse pin and fixed, but the buyer refused to take the car back and gave notice of cancellation of the sale.
• She then lodged a complaint with the Motor Industry Ombudsman of South Africa, which said it couldn’t support her expectation that the supplier must cancel the deal. Off to the High Court went the buyer.
• The Court refused her application for a new car or a refund on the basis that she hadn’t first exhausted all “internal remedies” before approaching a court. Specifically, she should have followed the comprehensive dispute resolution mechanisms set out in the Consumer Protection Act (CPA) – sure, she had approached the applicable industry Ombud, but she hadn’t lodged a complaint with the National Consumer Commission, nor had she approached a Consumer Court, the National Consumer Tribunal or an authorised alternative dispute agent.
• The lesson: Exhaust all other remedies as set out in the CPA before going to court!

Step Two: Heigh Ho Heigh Ho It’s Off to Court We Go

Finding extensive rust in his brand-new Ford Everest, the buyer demanded that the dealership repair it. The dealership refused, claiming that the buyer had spilt pool acid in the car. After unsuccessfully approaching the Motor Industry Ombud (unsuccessful because the dealership declined to cooperate with the Ombud’s investigation), the buyer ended up before the National Consumer Tribunal, which ordered the dealership to remove the rust.

In this case it was the dealership and not the buyer that went to court, with the dealership appealing the Tribunal’s order in the High Court.

The Court rejected the appeal and upheld the Tribunal’s rust removal order on the basis that –

• The CPA gives every consumer the right to receive goods that “are of good quality, in good working order and free of any defects”.
• The vehicle was defective at date of sale, and it was irrelevant that the vehicle was still functional and fulfilling its intended purpose of transporting the buyer “from Point A to Point B”– which it had successfully done for 3 years and 170,000 km before this case reached court. As the Court put it, “it is not meant to have a rusting or corrosion on any of its parts as a new vehicle … one can say that the vehicle is less acceptable and unsafe than people generally would reasonably be entitled to expect from the goods of that type, a brand-new car. This indicates a defect in the vehicle.”
• It is for you as buyer in such a case to prove that the defect existed at the time of the sale and that you were unaware of it. In this case, the rust was a latent defect (being hidden under a carpet) and as the buyer was no car expert, it was irrelevant that he had signed a pre-delivery inspection form confirming that there was no problem with the car.
• The Court accordingly found that the buyer had succeeded in proving what he needed to, and the dealership must “remove the rust and repair the Respondent’s car back to the standard it should have been if there was no rust”.

Insist that your brand-new car is free of defects and remember we can help you with specific advice and assistance if it isn’t.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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