Adv Louis Nel Business Review Advice: The CPA & POPIA - Direct Marketing | Southern Africa Tourism Services Association

January 23, 2023

Partner News

Prohibited DM Contact:

When you embark on a direct marketing (‘DM’) campaign, it is imperative that you are aware of the hours during which you may NOT do so. These are prescribed by the CPA in section 12 & Regulation 5 namely:

Sundays and public holidays
Saturdays before 09:00 and after 13:00
Mondays to Fridays between 20:00 and 08:00 the following day

Please note the following:

The above restrictions only apply to contact with the consumer at home
The CPA furthermore determines that any DM messages may not be ‘..timed to be delivered to the consumer during the prohibited times’ – we are only too aware of this practice i.e. bulk mailing and incessant SMS messages!
Given that we have in the interim had Covid and the major increase in the work-from-home (‘WFH’) scenario, home becomes a bit of a ‘hybrid’ and the jury is out on that one i.e. is it home of office?

Cooling off period (section 16):

Note that this section does not apply if the transaction falls within the ambit of section 44 of the Electronic Communications and Transactions Act, Act 25 of 2002 (‘ECTA’) – if that is the case, then the cooling off period is 7 (seven) days & the supplier may only charge the consumer for the direct cost of returning the goods. Here briefly are the definitions that are relevant to determine whether or not the transaction is an ECTA transaction:

‘electronic communication’ is any communication by means of data messages
‘data message’ is data generated, sent, received or stored by electronic means
‘data‘ is the electronic representation of information in any form

The consumers may cancel any transaction that has come to fruition due to direct marketing within 5 (five) business days (in terms of the CPA) after the later of the date the transaction was concluded or the goods to which the DM pertains was delivered to the consumer
Such cancellation can be done ‘…in writing, or any other recorded manner and form’
The supplier must then reimburse the consumer within 15 (fifteen) business days from receipt of the cancellation notice or receipt of the goods returned by the consumer
The consumer has the above right ‘without (having to give) any reason or incurring any penalty’ and the supplier may not ‘attempt to collect any payment’ from the consumer*
BUT note the exception* stipulated in section 16 (4) (b) i.e. ‘except as permitted in terms of sections 20 (5) and (6)’ i.e. the former states that the refund must comprise the ‘price paid for the goods, less any amount that may be charged in terms of subsection (6)’ – the latter is fairly complex but I will try and summarize the key aspects for simplicity – however it is recommended that if and when you are faced with the return of goods, as a consumer of supplier, you peruse this section if detail:

If the goods are returned in original packaging unopened, no charge may be levied
If the goods have been opened but are returned in original condition and repackaged in original packaging then a reasonable amount may be charged which is linked to either the use, consumption or depletion of the goods and the rationale therefore e.g. sampling as well as ‘restoration costs’ if applicable

I will discuss more on cold calling as contained in the CPA in my next inserts as well as how POPIA addresses the entire DM spectrum

Thank you to those of you with whom I engaged with during 2022 for your support and may I wish all of you, your family, and your staff everything of the very best for 2023 and may your wildest dreams come true!