The Consumer Protection Act

Introduction

This article discusses the Consumer Protection Act, 2019 (Chapter 14:44). It answers some of the most commonly asked questions on the Consumer Protection Act. These include the rights of consumers, their enforcement and defenses.

What Is The Consumer Protection Act?

The Consumer Protection Act, 2019 Chapter 14:44 Commenced on 10 December 2019.

It aims to:

To protect the consumer of goods and services by ensuring a fair, efficient, sustainable and transparent marketplace for consumers and businesses;
To provide for the establishment of the Consumer Protection Commission and its functions;
To provide for the regulation of Consumer Advocacy Organisations;
To provide for alternative dispute resolution;
To repeal the Consumer Contracts Act [Chapter 8:03]; and to provide for matters connected therewith or incidental thereto.

What Is The Consumer Protection Authority And Commission?

The Act establishes the Consumer Protection Commission (CPC). The functions of the CPC are to promote, enforce and protect consumer rights in the country. Its powers include protecting consumers from unconscionable, unreasonable, unjust or otherwise improper trade practices; as well as deceptive, misleading, unfair or fraudulent conduct. The CPC is also meant to promote fair business practices; co-ordinating and networking consumer activities and liaising with consumer organizations and the competent authorities and agencies locally and outside Zimbabwe to protect consumer interests.

It provides a consistent, accessible and efficient system of consensual resolution of disputes and redress arising from consumer transactions. Particularly, negotiating and concluding undertakings and consent orders as well as issuing and enforcing compliance notices. The CPC receives, investigates and prohibits businesses following consumer complaints.

Who May Lodge Consumer Complaints?

a legal practitioner;
a person acting on his or her own behalf;
an authorised person acting on behalf of another person who cannot represent himself or herself due to legal disability;
a person acting as a member of, or in the interest of, a group or class of affected persons;
a person acting in the public interest;
an accredited consumer advocacy group.

The Consumer Protection Act Applies To The Following:

Every transaction occurring within Zimbabwe.
Promotion or supply of any goods and services within the country; and
Goods or services that are supplied or performed, in the country, in terms of transactions mentioned in the Act.

The Act Is Not Applicable In Respect Of:

Goods or services promoted or supplied to the state;
When the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold value prescribed by the Minister;
Industry-wide exemption being granted to regulatory authorities;
Services under employment contracts;
Transaction for the sale, letting or hire of immovable property.

Who Is A ‘consumer’?

A person to whom those particular goods or services are marketed in the ordinary course of the business of the supplier or service provider;
A person who has entered into a transaction with a supplier or service provider in the ordinary course of the business of the supplier or service provider;
If the context so requires, a user, recipient or beneficiary of those particular goods or services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those goods or services;
Any person, who purchases or offers to purchase goods or services supplied by an enterprise in the ordinary course of business and includes a business person who uses the product or service supplied as an input to its own business, a wholesaler, a retailer and a final consumer;
Any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale but does not include a person who purchases goods or services for the purpose of using the goods or services in the production and manufacture of any other goods for sale or the provision of another service for remuneration.

What Are Consumer Rights?

The Declaration of Rights enshrines the rights of all Zimbabweans – including consumer rights. The Consumer Protection Act further outlines these key consumer rights, of which all Zimbabwean consumers should be aware of. These include the following:

Right to education
Right to health and safety
Right to choose
Right to information
Right to be heard, to representations and to redress
Right to fair contractual agreements
Right to confidentiality and privacy
Right to restrict unwanted direct marketing

1. Right to education

A Consumer has the right to consumer education which includes but is not limited to information on the environmental impact of consumer choices and behaviour and the possible implications, including benefits and costs, of changes in consumption. Where appropriate, consumer education may be incorporated into the educational system with a focus on product hazards, product labelling, how to obtain redress, information on weights and measures, prices, quality and environmental protection.

2. Right to health and safety

What does this mean for the ordinary consumer?

(1) A supplier is prohibited from selling or marketing any goods or services to consumers unless such goods or services conform to the mandatory safety and quality standards prescribed in accordance with any laws.

(2) Every consumer has a right to receive goods or services that are;

safe and free from defects and hazards
reasonably suitable for the purposes for which they are generally intended;
will be usable and durable for a reasonable period of time, having regard to the use to which the goods would normally be put and to all the surrounding circumstances of their supply;
free from defects;
serviceable where necessary; and
of fair value.

If a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods or services, and the supplier ordinarily offers to supply such goods or services or acts in a manner consistent with being knowledgeable about the use or provision of those goods or services; the consumer has a right to expect that they are reasonably suitable for the specific purpose that the consumer has indicated.

It is irrelevant whether a product failure or defect was latent or patent or the defect could have been detected by a consumer before delivery of the goods or services. It is also not relevant that a product failure or defect may not be inferred in respect of particular goods or services solely on the grounds that better goods or services have subsequently become available from the same or any other producer or supplier.

Defences

A supplier, producer or importer, distributor or retailer of any goods or services will not be liable if;

the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation; or
the person proceeded against did not at any time supply the product to another; or
the alleged unsafe product characteristic, failure, defect or hazard—

did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or
was wholly attributable to compliance by that person with instructions provided by the person who supplied the goods to that person,

it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers; or
the claim for damages is brought more than three years after the death or injury of a person.

3. Right to choose

Every consumer has a right to choose goods or services of their preferred choice without any undue influence or pressure from suppliers of goods or services. Where a transaction is completed, a consumer remains with the right to return goods on discovery that such goods are not of their preferred choice within the shortest period reasonable in the circumstances.

Consumer’s right to select suppliers– no supplier, as a condition of offering to supply any goods or services, or as a condition of entering into an agreement or transaction, shall require that a consumer purchases any other particular goods or services from that supplier; or enters into an additional agreement or transaction with the same supplier or a designated third party.

Consumer’s right to cancel advance reservation, booking or order– A consumer has the right to cancel any advance booking, reservation or order for any goods or services to be supplied. Additionally, a supplier may not charge any cancellation fee in respect of a booking, reservation or order if the consumer is unable to honour the booking, reservation or order because of the death or hospitalisation of the person for whom, or for whose benefit the booking, reservation or order was made; or an immediate family member.

Delivery of goods or supply of services– unless expressly provided in an agreement, it is an implied condition of every transaction for the supply of goods or services that— the supplier is responsible for delivering the goods or performing the services

on the agreed date and time, if any, or within a reasonable time after concluding the transaction or agreement; or
at the agreed place; or
at the cost of the supplier, in the case of delivery of goods.

Goods to be delivered remain at the supplier’s risk until the consumer has accepted delivery. Further, upon delivery of any goods or services, the supplier is obliged to give the consumer an opportunity to examine the goods or services for the purpose of ascertaining whether he or she is satisfied with the goods or services.

4. Right to information

This is the right to disclosure of information regarding goods or services and disclosure of prices.

No supplier shall display any goods for sale or services on offer without displaying to the consumer a price in relation to those goods or services.
No supplier shall require a consumer to pay a price for any goods or services higher than the advertised or displayed price or where more than one price is advertised or displayed concurrently, the lowest shall be considered as the price of the goods or services.

Any person who contravenes this section shall be guilty of an offence and for each count, liable to a fine not exceeding level 5 or to imprisonment for a period not exceeding three months or to both such fine and imprisonment.

5. Right to be heard, representations and redress

A consumer has a right to have his or her complaints heard before the Commission or the court and to seek redress through alternative dispute resolutions provided for in terms of the Consumer Protection Act and any other law. A consumer also has a right to choose and be represented by a person of his or her choice and such disputes must be heard and resolved within a reasonable time.

Where a consumer has exercised or sought to uphold any rights set out in the Act or in an agreement with a supplier, the supplier is prohibited from discriminating against the consumer directly or indirectly; or penalise the consumer or to take any action to accelerate, enforce, suspend or terminate an agreement with the consumer.

6. Right to fair contractual agreements

A consumer has a right to be treated fairly and honestly in any transaction or promotional activity and to be protected from unconscionable conduct. Suppliers are prohibited from using physical force, coercion, undue influence, pressure, duress, harassment or unfair tactics against a consumer. Any supplier, marketer or service provider who contravenes this right shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

A transaction or agreement, is unfair, unreasonable or unjust if

it is excessively one-sided in favour of any person other than the consumer or other person to whom goods or services are to be supplied or provided; or
the terms of the transaction or agreement are so adverse to the consumer as to be inequitable; or
the consumer relied upon a false, misleading or deceptive representation, or a statement of opinion provided by or on behalf of the supplier or service provider, to the detriment of the consumer; or
the term, condition or notice is unfair, unreasonable, unjust or unconscionable;

Any supplier or service provider who contravenes these terms shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.

7. Right to confidentiality and privacy

Any person who in terms of this Act receives, compiles, retains or reports any confidential information pertaining to a consumer or prospective consumer must protect the confidentiality of that information. The person must use that information only for a purpose permitted in terms of the Act or other national legislation and only report or release that information to the extent permitted by the Act or in accordance with the instructions given by the relevant consumer or a court of law.

8. Right to restrict unwanted direct marketing

The consumer’s right to privacy includes the right to

refuse to accept; or
require another person to discontinue; or
in the case of an approach other than in person, to pre-emptively block, any approach or communication to that person;

if the approach or communication is primarily for the purpose of direct marketing.

How Does One Enforce Their Rights?

The court has powers to enforce consumer rights. In addition to any other order that it may make under the Act or any other law, the court considering a matter in terms of the Act may

order a supplier to alter or discontinue any conduct that is inconsistent with the Act; or
make any order specifically referred to in the Act; or
award damages against a supplier for collective injury to all or a class of consumers, to be paid on any terms or conditions that the court considers just and equitable to achieve the purposes of the Act.

The Act does not limit any right of the consumer or the supplier to recover interest or special damages in any case where by law interest or special damages may be recoverable.

Is An Employer Liable For Violations Of The Act Committed By Their Employees?

Through vicarious liability, an employer becomes liable for a breach of consumer rights by their employee. This means that if an employee or agent of a supplier of goods or services is liable in terms of the Consumer Protection Act for anything done or omitted in the course of that person’s employment or activities on behalf of their principal, the employer or principal is jointly and severally liable with the employee or agent.

The Consumer Protection Act affects the relationships between consumers and businesses. Should you require an explanation of your rights on this topic, send us an email on info@jplp.co.zw.

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