# Regulatory Compliance Category > Consumer Protection Act Forum >  How is the CPA going?

## sterne.law@gmail.com

Already about 100 complaints a day coming through, quite  as start.

Intepretation continues to be debated. Considering large firms with think tanks plus representations in formulation stage still have questions that are unanswered makes for an interesting few early stages, particulalry the property sector.

Part of the problem is how the CPA has entered the realm of common law principles and other fundamental areas and simply changed it, as it stands. This is probably what is making it difficult to intepret. Examples are unjustified enrichment.
in terms of direct marketing, your comment at the braai that you can or do do something, is direct marketing and therefore if the person uses your services gets the protetcion of the direct marketing sections.

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Dave A (25-Apr-11)

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## Dave A

I hope they're going to think carefully before setting precedents. The risk for really harmful unintended consequences is simply huge.

The customer may be king, but he can also be an abusive beast - and most often has far greater freedom of choice and power of discretion than the supplier. He can always say "no" - an option not always available to the supplier.

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BusFact (26-Apr-11)

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## sterne.law@gmail.com

Heres an interesting One.

An attorney at a braai says he does commercial law. A week later you approach him with a dilemma. He furbishes a written opinion. With in 5 days you return it and claim direct marketing and the right to return the goods.
Normally unjustified enrichment would allow the attorney or person to claim from you. But  apiece of legislation allows you so it cant be unjustified now can it?

Another interesting one -
You purchase a property off plan. It gets built, transfer takes place and you move in. You then claim it does not look like the picture or sample unit and return it, as per CPA. Now what? 
Transfer fees are paid and it belongs to the buyer. Becuase he is returning it transfer needs to be effected again to the seller. HUH!!! Then of course on next sale, transfer fees again.

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## Dave A

This is why the precedents are so important. 

As I understand it, at this point these arguments are still speculative.

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## IanF

What about services like design, you produce a proof according to the brief there are a few requested alterations which are done then it is rejected. Now I always request a deposit before we start, and have refunded only once I couldn't be bothered arguing, but then you refuse to do any more work for them. 
So when you sell time do you specify you are selling time?,

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## sterne.law@gmail.com

Now this was the exact scenario which remainsn unanswered. It was a gathering of mainly attorneys, the speaker is a commercial attorney and worked on the CPA with a think tank at large reputable firm.
The scenario is the attorney at braai, gives opinion and then returned. Your design scenario constitutes pretty the same scenario.
In essence the client returns the opinion and says no thanks - but of course they do have their answer. Common law allowe dfor a remedy via unjustified enrichment. But if a piece of legislation says you can do something it cant be unjustified. The CPA also specifically allows for the development of the common law in order to achieve purposes. If their is a clash of legislations the intepretations is the one most favourable to the consumer. This all seems to point to the service provider being screwed.
My defence is that you cant give me back something that I already have(my idea and intellect) and by the same token the consumer cant give back what he still has(the intellect) thus there is no cause for action.
Your design issue has the same connotations. Of course copyright and intelectual property laws may give a remedy where they make use of the design. Being a slightly more physical piece of intellect than an opinion one can watch out for it to appear but at what cost. Furthermore, if they do use it you cant use the CPA and have to revert to the normal, longer and more expensive legal routes with the added disadvantage that the customer may not have money to refund you. (It is also unclear as to if a supplier is going to contest a claim, do they first have to pay an then make claim, or can the payment and those processes be stayed pending any action in consumer commision or tribunals) I think some more digging into the arbitration act will give some guideline to the procedures.

Also remember that the return of 5 days, no questions asked is related to where direct marketing has occurred. BUT this obviously covers a vast area. Web sites, blogs, comments, articles are all direct marketing!!! (What will need to be established is what is a reasonable time span from the marketing to when a consumer acts there upon for the consumer to use it as a defence)

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## Dave A

The worst of it is the right to return period is 5 days after order *or receipt* of the goods/service, whichever is the later. And it's not qualified which is where I see the big problems coming, especially when it comes to professional advice/opinion. So now they get advice they don't like (but it is correct nonetheless)? 

What would make sense is if it was qualified - 5 days after order as a cooling off period and 5 days after receipt if not as advertised/fit for purpose/substandard.




> ...is related to where direct marketing has occurred. BUT this obviously covers a vast area. Web sites, blogs, comments, articles are all direct marketing!!!


Surely not - the reader has to actively go to the website, or blog to read the message  :Confused: 
How is the content of a website, blog or article directory any different to the content of a newspaper? Or is the content of a newspaper "direct marketing" too?

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## sterne.law@gmail.com

Perhaps a few sections involved causing confusion - there is direct marketing and product liability issues.

There is a difference between marketing a specific and a generic advert. 

Example, ABC stores advertises themselves - no problem but if they advertise XYZ toothpaste then any sales related to XYC toothpaste are subject to the direct marketing sections (again no clarity on what time period. If I go and buy after 3 months it could be as a result of the advert)
This is not neccessarily covered by the web site issue (Direct marketing defined as to *approach* by person, mail or electronic communications. Definition also includes ..in relation to any goods, hence the store advert vs a product advert)

To further substantiate the ramifications - returning to the lawyers opinion. If I give you an opinion and you forward it or some else acts on it, I become liable. Subsequently such things should be formatted in a manner that cant be altered and the practice now, it seems, will be to address the opinion to a specific client and at a specific point of time, and disclaim any liability for any other person making use therof. (This is not in terms of direct marketing but product liability - web sites/blog disclaimers become important)

I certainly want to explore the direct marketing issue in term sof wbe sites this further. Direct marketing refers to electronic communication which must cover web sites/blogs. 

In terms of the 5 days and qualification -
a) agreement concluded - normal contractual principles
b) delivery - straight forward enough

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Dave A (26-Apr-11)

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## AndyD

> How is the content of a website, blog or article directory any different to the content of a newspaper? Or is the content of a newspaper "direct marketing" too?


I think the difference is that with SEO and the associated manipulation of rankings there would, at a push, be an argument that a website or blog could be classed as direct marketing where a newspaper maybe not.

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## Martinco

What about this scenario ...............My friend has a ready mix concrete business and I asked him about the 5 day issue. He said "Sure, he will take the concrete back provided the customer delivers the stuff to his premises." ! Catch 22.

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## sterne.law@gmail.com

> What about this scenario ...............My friend has a ready mix concrete business and I asked him about the 5 day issue. He said "Sure, he will take the concrete back provided the customer delivers the stuff to his premises." ! Catch 22.


If the consumer is cancelling the contract due to direct marketing - return of goods is at consumer expense and risk - so Mr Concrete is in a good position.
All other returns are at supplier risk and expense.

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## sterne.law@gmail.com

Just on returns -
It is only where the purchase was due to direct marketing that the return is based on nothing but that.
Other returns require some defect, in various forms and guises.
I think this is an important distinction. Seems a lareg amount of people(consumers) think that they can just return anything without penalty.

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## IanF

Since this revolves around "direct marketing" "means to approach a person, either in person or by mail or by electronic communication..."
Does this cover every sale or will there be exclusions from this?

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## sterne.law@gmail.com

I am not aware of any exclusions as to sales(there are exclusions by token of parties to whom the act or sections are not applciable)
The key word in the direct marketing definition is *approach* .
The methods listed in the definition all require a specific action - to fax, sms. email etc, so my feeling is that a web site is not in this same group. Of course if I encourage you or send you to my web site (link as signature?) this would seem to be an actual action, then a direct approach.

Handing out a business card? Approaching?

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## Dave A

> If the consumer is cancelling the contract due to direct marketing - return of goods is at consumer expense and risk


 :Hmmm:  Now that is very useful to know.

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## wynn

And then the thorney issue of the cell phone rip off artist companies who would rather you used the toothless CCMA than the new dog with the sharp teeth.

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## Martinco

> And then the thorney issue of the cell phone rip off artist companies who would rather you used the toothless *CCMA* than the new dog with the sharp teeth.


Hi Wynn,  You have lost me now............I do not understand what the CCMA has to do with this.  :Confused:

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## IanF

> The key word in the direct marketing definition is *approach* .
> The methods listed in the definition all require a specific action - to fax, sms. email etc, so my feeling is that a web site is not in this same group. Of course if I encourage you or send you to my web site (link as signature?) this would seem to be an actual action, then a direct approach.
> 
> Handing out a business card? Approaching?


OK now to perfect my reactive marketing approach.
So if someone finds paperkutz through a google search or adword Ad then that is not a direct approach, but if I send out emails with a special offer then that is a direct approach. So the key is to have some good SEO and Adwords.

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## wynn

There is an argument that the CCMA is already the de facto adjudicator of matters IRO the Cell Phone service providers and that the CPA is just going to duplicate the complaints.

A lot of complaints that were originally laid with the CCMA have now been laid with the CPA because the CCMA were sitting on their hands.

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## Dave A

Judging by the reference to "toothless dog", I think Wynn might have intended to be referring to ICASA.

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wynn (29-Apr-11)

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## AndyD

There's no shortage of toothless dogs, they all look the same to me as well :-)

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## sterne.law@gmail.com

> OK now to perfect my reactive marketing approach.
> So if someone finds paperkutz through a google search or adword Ad then that is not a direct approach, but if I send out emails with a special offer then that is a direct approach. So the key is to have some good SEO and Adwords.


Thats the trick.

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## sterne.law@gmail.com

Part of the definition includes - wireless computer access. Can someone enlighten me as to what this constitutes, particulalry within the framework of the CPA, more than the technical jargon angle.

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## wynn

Tomatos tomatoes?

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## Superscenic

Hi guys, so where do go and how do I log a complaint?

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## BuyNoEvil

Are all the legal minds when considering the whole issue of a return in terms of Section 16 (cooling off period) not forgetting that there lies within Section 20 a certain balance in that a reasonable supplier recovery will be allowed. SO if you return a new car due to your cooling off right, then I will not refund you what you had paid for it, but as the car is now pre-owned only pay you what I can reasonable sell it for.

The as a consumer you also have the further obligation of having to settle the credit agreement with the bank (in this case).

Views and opinions please.

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