New act could mean end of voetstoots

The Consumer Protection Act is due to come into effect in October and is expected to have a profound impact on the property landscape, says Durban attorney Shahir Ramdass of Ramdass and Associates.

He says the purpose of the act is to regulate consumer rights and promote a fair, transparent and responsible market place for all consumers.

"The focus on product liability and improved remedial measures to achieve this objective is a key feature of the act."

Currently, conduct between a buyer and seller is dictated by common law, where the inclusion of clauses that may be regarded as "unfair", such as the voetstoots clause which is designed to protect the seller from liability for hidden defects, is permissible.

The right to fair value, good quality and safety, however, dictates that every consumer has the right to receive goods that are suitable for the purpose and are free of defects, Ramdass says.

The primary aim of the act is to protect consumers who are considered vulnerable, such as those deemed previously disadvantaged or illiterate. Courts will be empowered to make a value-based judgment whenever a matter comes before them.

For instance, it may assess whether or not certain contractual terms were understood and whether these were fair when the parties entered the contract.

Ramdass says that where a person is illiterate or does not fully understand English and signs a contract in English, the risks must be clearly explained to them.

For example, when entering into a contract for the purchase of a property with the standard voetstoots clause, the signatory must fully understand the agreement or a court may well set aside such an agreement on the basis that it was unfair or unjust.

In terms of the act, a buyer in such circumstances has the right to return defective goods, namely the property, which could have wide-ranging implications for the industry.

Ramdass says many commentators have suggested the act will be the death knell of the voetstoots clause.

A further cause for concern is the restriction on direct marketing practices, which dictates the days and hours when a consumer may be contacted.

"While we are of the view that the practical implications of the act are overtly restrictive and in dire need of clarification in their present format, agents, developers and role players in the industry still need to familiarise themselves with the provisions in advance," Ramdass says.

Property Guide (Sunday Tribune)

Posted at 07:26AM Feb 22, 2010 by Editor in Residential  |  Comments[3]