The impact of the Consumer Protection Act 68 of 2008 on the enforceability of exemption clauses

Abstract

The purpose of this dissertation is to understand the impact of the Consumer Protection Act 68 of 2008 (CPA) on the enforceability of exemption clauses, if any, with specific reference to sections 22, 48, read with regulation 44(3), 49, 51, 52 and 58. An exemption clause is a term contained in an agreement (contract) which, in theory, eliminates, varies or restricts the legal responsibility of the parties to the contract. Certain requirements as set out in the CPA must be met when the enforcement of exemption clauses is considered. The CPA does not specifically prohibit the use of exemption clauses; however, it attempts to regulate or limit their use in contracts. The shift towards consumer alertness and fair-mindedness when entering into an agreement through the CPA is of great value. However, to ensure that the consumer is protected to the maximum, certain amendments to the CPA must be made to guarantee actual safeguard against unfair terms. Nevertheless, the protection offered to the consumer by the CPA remains limited. What is important is that exemption clauses in their totality will not die away, as they would possibly play a significant part in assigning the risk between parties in instances where none of the parties were responsible. I therefore say that exemption clauses still remain legal, binding and enforceable if their wording is clear-cut. By this I mean that they must comply with section 22, read with section 49(3)–(5) of the CPA, and must not be the terms or conditions contained in regulation 44(3) or section 51 of the CPA. Exemption clauses must therefore be formulated and conveyed in accordance with the CPA, and taking advantage of a consumer by making use of such clauses will consequently come to an end.