Please note that the information contained in this section is not exhaustive and serves as a brief overview of the Consumer Protection Act (68 of 2008), hereinafter referred to as the CPA, as it specifically relates to property related transactions. There are still many ambiguities and uncertainties surrounding some of the provisions of the Act which only time (and the courts) will be able to interpret and clarify. You are strongly advised to contact our offices for further advice or consultation on this topic.
Scope of the Act:
The CPA regulates the activities of suppliers and creates rights for consumers in the event that they fall within the ambit and scope of the Act. The CPA applies to every transaction occurring within SA, and covers both goods or services delivered or rendered “in the ordinary course of business” and it applies to transactions which suppliers enter into with consumers (a transaction refers to the supply of goods or services in return for payment). It therefore covers:
- The promotion and advertising of goods or services that could lead to the transaction being entered into (unless exempted), the performance of the service and the supply of goods, the goods and services themselves after the transaction is completed, and the goods which form the subject of an exempted transaction.
The CPA does not apply to certain consumers, certain transactions, or in specific instances where exempted by the Minister.
Summary of Consumer/Supplier:
Sale And Purchase Of Immovable Property
- Where the supplier is a seller of property (who sells property as his/her ordinary course of business), and the purchaser is an individual or a juristic body whose turnover or asset value is less than R2 million, the Act will have application.
- The basic test is whether the consumer purchases the property from the supplier in the course of the latter’s “ordinary course of business”. This means that it is unlikely that the CPA will apply to property sales in the average “one-off” private sale situation – it is aimed more at “commercial” sales – by property developers, builders, speculators, and other property dealers, extending to transactions where people buy and sell property on a continuous basis. In such cases, the deed of sale and actual transfer of property into the name of the purchaser would fall under the provisions of the CPA (where the purchaser qualifies as a consumer in terms of the Act).
Definition of “goods” includes a legal interest in land or other immovable property:
- The definition of “goods” in the CPA is defined to include a legal interest in land or any other immovable property, other than an interest that falls within the definition of “services”. In other words, the definition of “goods” includes the sale and purchase of immovable property. Note: whether the CPA applies to a once off sale of residential property has not yet been tested in our Courts, as it will depend on who is selling the property, and whether such seller falls within the definition of supplier in terms of the Act.
REMEDIES FOR CONSUMERS (AS PURCHASERS) PROVIDED BY THE ACT:
Right to fair and honest dealing with consumers – Sections 40–42, 44
The CPA deals with unconscionable conduct, false, misleading or deceptive representations (whether by word or conduct), fraudulent schemes or offers, and the consumers right to assume a supplier is entitled to sell goods. Consumers (purchasers) are entitled to fair and reasonable marketing. “Market” is defined in the CPA as the “promotion and supply of any goods or services”. All negotiations and representations made by sellers, estate agents, property developers, builders and other property dealers – to purchasers, must comply with the Act, so as to ensure that purchasers are treated lawfully and fairly.
Cooling off period – Section 16
Consumers are afforded a period of five business days to rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the supplier in writing.
Direct marketing includes telephone calls, electronic communications and cold calling – as opposed to ordinary marketing-which involves printed brochures, print media and websites.
This section may have the effect of allowing a cooling-off period when a property is purchased due to direct marketing, even if it is sold for more than R250 000 (i.e this cooling off right is in addition to the cooling off period in terms of Section 29A of the Alienation of Land Amendment Act, which applies where the value of the property is less than R250 000, or such higher amount as the Minister may prescribe in order to counter the effect of inflation, and the purchaser is an individual).
Disclosure and Information – Section 22–28
Consumers (purchasers/tenants where applicable) are entitled to information in plain and understandable language. Purchasers must understand exactly what they are buying.
The purchaser has the right to receive express notice of any term in an agreement which limits the risk or liability of the provider, or of any term which constitutes an assumption of risk or liability by the consumer.
Certain information is required to be disclosed by intermediaries, agents and/or estate agents in terms of Regulation 9, such as their full names, identity number, a description of the exact service to be provided and fees to be earned.
Consumer agreements – Sections 48–52
Unfair, unreasonable or unjust contract terms are not allowed in deeds of sale. These agreements will be scrutinised – the meaning and effect of all applicable terms and conditions of the agreement are required to be explained, and no terms or conditions that are deemed unfair for the consumer will be able to be inserted.
Right to fair value, good quality and safety – Sections 53–60
A. Right to fair value
Sale prices could be scrutinised for reasonableness. The price should always be displayed when the property is being advertised for sale.
B. Right to good quality and safety – Sections 55–56
Section 55(2): Except to the extent contemplated in subsection (6), every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended, are of good quality, in good working order and free of any defects, and will be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put, and to all the surrounding circumstances of their supply. In other words, where the CPA applies, it would seem that the purchaser has a right to return goods (to require the seller to take re-transfer of the property) if any of the requirements listed in the section are not met. Where the sale agreement expressly lists any patent (visible) defects, latent (unknown) defects, or specifies the exact condition of the property, the seller will most likely be protected. Such a clause must be expressly accepted by the purchaser. The purchaser must have expressly agreed to accept the goods (property) in that condition or knowingly acted in a manner consistent with accepting the goods in that condition [Section 55(6)].
Right to return defective goods – Section 56(2)
Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in Section 55.
Where the CPA applies, the purchaser has the right to return the goods to the seller –without penalty and at the seller’s risk and expense – within six months of delivery (registration of transfer at the deeds office). The purchaser has the choice as to whether the seller will be required to refund the full purchase price or repair the ‘goods” (where applicable).
Effect of the CPA on the Voetstoots clause
There are conflicting views on the likely effect of the CPA on the traditional voetstoots clause. Certainly, where the Act applies, traditional voetstoots clauses that breach the consumer’s rights as per Section 55 of the Act will no longer be applicable. Property speculators, developers, builders, estate agents, and attorneys involved in the drafting of the contract of sale will be required to comply with Sections 55–56. However it is also likely that the exception in Section 55(6) will relate to the voetstoots clause in that when the purchaser signs the deed of sale, and (s)he acknowledges that (s)he has been expressly informed that the property is sold in the specific condition that (s)he sees it, and which condition is listed in detail in the contract itself, and is acquainted with the property’s condition, nature and extent, land use planning and building plan approval, accepts it as is, then the exception should apply.
As per Section 49 of the CPA, such provision must have been drawn to the attention of the consumer and in a conspicuous manner, that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances, and before the earlier of the time at which the consumer enters into the transaction or agreement, or is required or expected to offer consideration for the transaction or agreement.
LEASES AND LANDLORDS
‘Lease’ is not defined in the CPA, however, ‘services’ is defined as including the provision of accommodation or sustenance, access to or use of any premises or other property in terms of a rental. ‘Rental’ means an agreement for consideration in the ordinary course of business, in terms of which temporary possession of any premises or other property is delivered to or at the
direction of the consumer, or the right to use any premises or other property is granted to or at the direction of the consumer, excluding a lease within the meaning of the National Credit Act.
Landlord as Supplier/Tenant as Consumer:
- The Act applies where the landlord is in the business of letting properties, and the tenant meets the criteria of ‘consumer’ – being an individual, or juristic body whose turnover or asset value is less than R2 million.
Some sections in the Act which will apply to lease agreements:
Sections 22 and 40 of the Act state that it is the inherent duty of the landlord to
ensure the tenant understands the lease agreement, and to provide full disclosure and
information.
- The tenant is entitled to information in plain and understandable language.
- Most lease agreements are for a fixed period. Section 14 provides that the tenant may arbitrarily terminate the lease by providing twenty working days written notice to the landlord (for a lease entered into after 1 April 2011), subject to payment of reasonable cancellation penalties.
- Where the CPA applies, a landlord can only terminate the lease if there was a material breach and the tenant has not remedied the same within the specified period provided for in the lease agreement.
- Section 14 however does not apply to transactions between juristic persons, regardless of their annual turnover or asset value.
- Fixed lease agreements under the CPA have a maximum duration of twenty-four months. After expiry of the agreement, the lease will continue on a month to month basis unless a new agreement is signed. Should the landlord wish to terminate the agreement upon its expiry, he must notify the tenant in writing not more than eighty but not less than forty business days (before expiration of the agreement) of its looming expiry. If the agreement is to be renewed, a notice of any material changes that would apply would need to be provided to the tenant by the landlord within the same time frame. Should the lease continue on a month to month basis after its expiry, then the provisions of the Rental Housing Act will apply, and the landlord can cancel the lease agreement by giving one calendar months’ notice, which is a notice that must be given before the end of the month, to terminate the contract at the end of the next month. Where there has been a material breach on the part of the tenant while the lease is on a month to month basis, the CPA will not apply, and a shorter period of demand prior to cancellation may be given.
- In summary, if two individuals enter into a lease agreement (commercial or residential), the CPA will apply, including Section 14. If an individual as landlord and a juristic person with assets or turnover of less than R2 million, as tenant, enter into a lease agreement, the CPA will apply, including Section 14. However, if two juristic persons, regardless of assets or turnover value, enter into a lease agreement, Section 14 of the Act will not apply (the remaining provisions of the Act may apply where both parties are juristic persons and the tenant as juristic person has assets or turnover value of less than R2 million). Note that where the tenant as juristic person has assets or turnover over R2 million, the CPA will not apply to the lease agreement at all.