Adv Louis Nel Business Review: Compliance with CPA (part 3)

I previously outlined, in the previous section (The CPA Part 2), the significance, timing, and content of the customer briefing (Section 49).

Section 49 should not be viewed in isolation but in conjunction with Section 58, which again emphasizes compliance with Section 49 and Sections 22 concerning the 'Warning concerning (certain) facts and the nature of risks' related to 'any activity or facility' – that is, a risk 'of an unusual character or nature,' 'not reasonably expected,' or 'that may result in serious injury or death.'

The above warning also extends to 'adequate instructions for the safe handling and use of goods' in the event that the goods are 'hazardous or unsafe.'

The subsequent comprehensive provisions of Section 48 not only highlight the value and importance of the briefing but also serve as a starting point when evaluating the language used in your T&C and indemnity. In other words, terms related to the supply of goods and/or services must not be 'on terms that are unfair, unreasonable, or unjust.'

It is often asserted that 'An indemnity is not worth the paper it is written on.' However, I do not believe this is an accurate assessment or that an indemnity per se is a 'no-no.' The CPA does not 'throw the baby out with the bathwater.' Instead, it focuses on the wording and the manner in which the client is advised and the ad hoc assessment thereof ('...particular circumstances'). Section 48 provides examples of unacceptable wording, such as when the terms of supply are:

- Excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied.
- So adverse to the consumer as to be inequitable.

Section 48 should be read in conjunction with the provisions of Regulation 45, which offers a 'List of contract terms that are presumed not to be fair and reasonable.' However, it qualifies the list by stating that it is 'indicative only,' so a term listed therein 'may be fair in view of the particular circumstances of the case.'

The list (comprising 26 items) includes the following:

- Excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier, subject to Section 61(1) of the Act.
- Excluding or restricting the legal rights or remedies of the consumer against the supplier or another party in the event of total or partial breach by the supplier of any of the obligations provided for in the agreement, including the right of the consumer to set off a debt owed to the supplier against any claim which the consumer may have against the supplier.

I will delve into the role of the duty of care and public policy in my next section.

© ADV LOUIS NEL

Louis-THE-lawyer

September 06, 2023

DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be sought in all instances.