Article written by Antoinette Du Plessis (Consumer Protection and POPI Legal Advisor – SEESA – Pretoria)
A consumer has the right in terms of the Consumer Protection Act to lodge a complaint. The lodging of a complaint is dealt with in terms of Sections 71 – 75 and Regulations 35 – 37 of the Consumer Protection Act.
It is important for a supplier to know when a consumer can lodge a complaint, where they can lodge a complaint, and what will happen after a complaint has been lodged.
When a supplier knows how a process works and what to expect from it, they will have no reason to fear it.
“Fear comes from the lack of knowledge and a state of ignorance. The best remedy for fear is to gain knowledge.” – Debasish Mridha
When can a consumer lodge a complaint?
A complaint may be filed by a consumer when one of the consumer’s rights in terms of the Act has been contravened or if the supplier has allegedly acted in a manner inconsistent with the Act.
Nothing in the Act nor Regulations prevents The National Consumer Commission (hereafter the Commission) from initiating its investigation into a matter. This means that even if a consumer decides not to lodge a complaint, nothing prevents the Commission from investigating on their own.
Where can a consumer lodge a complaint?
Should a consumer and a supplier not resolve a matter, the consumer has the right to refer the dispute to an alternative dispute resolution agent to resolve the issue.
This will include:
- An industry ombudsman;
- Ombudsman with jurisdiction;
- Person or entity who provides conciliation, mediation or arbitration services;
- The Consumer Court of that Province.
Should these agents be unable to resolve the matter, the referring party can refer the issue to the Commission.
What will happen after a complaint has been lodged?
When the Commission receives a complaint, it will first determine if the complaint should be taken further. This is done to save time by preventing complaints from being investigated, which has no remedies under the Act. Should the Commission find that a complaint lacks merit or that the Act does not provide for any remedies, they may issue a notice of non-referral and not investigate the matter further. The complainant may still refer the matter to another entity which can assist them.
Should it be determined that the complaint justifies further steps, an inspector will be directed to start an investigation. There are three possible outcomes after the conclusion of an investigation:
- A certificate of non-referral can be issued;
- The issue can be referred to the NPA (National Prosecuting Authority);
- It is determined that a prohibited conduct in terms of the Act took place.
Should the investigator find that prohibited conduct took place, it can refer the matter to the Equality Court, propose a consent order, make a referral to the consumer court or the National Consumer Tribunal (hereafter the Tribunal), or issue a compliance order.
If the Commission issues a notice of no-referral, the complainant may lodge the matter directly with the Tribunal. If the notice of non-referral was issued in terms of Section 116, the complainant might not lodge directly with the Tribunal.
The consumer has many options if they want to lodge a complaint. Because the process can be complicated and technical in nature, suppliers often do not understand their rights and the possible remedies available to them. In those instances, the supplier may suffer damages due to compliance orders and penalties issued by the Commission or Tribunal.
Should you require more information or assistance, please contact your SEESA Consumer Protection and POPI legal advisor, or SMS the word “SEESA” to 45776 and we will contact you.
About the author:
Antoinette Du Plessis started her career at SEESA in 2017 and is currently working as a Consumer Protection and POPI Legal Advisor at the Pretoria Branch. She was admitted as an Attorney of the High Court in 2016.
2018/9 Annual Report of the National Consumer Tribunal
Consumer Protection Act 68 of 2008
Regulations of the Consumer Protection Act 68 of 2008