Finance and Economic Opportunities
In the light of the information received from the Consumer Protection Office during its appearance before the Standing Committee on Finance, Economic Opportunities and Tourism on 22 January 2024 that the Consumer Affairs Tribunal has not been operational for a number of years:
(a) For how many years was the Tribunal not operational, (b) what led to it to be not functional, (c) during this period of non-functionality, how were consumer investigations attended to, (d) in respect of the legal prescripts guiding the work of the Tribunal, (i) how is the alignment done between national and provincial legislation and (ii) which takes precedence, (e) what is the rationale for the skills collaboration with the National Youth Development Agency (NYDA) that seems to be not about consumer affairs but about general skills development and (f) what mechanisms are in place to mitigate political and business interests and/or influence over of capture of the Tribunal?
I am informed of the following:
Establishment and functioning of the Western Cape Consumer Affairs Tribunal:
The Office of the Consumer Protector (OCP) has continued to function uninterrupted since its inception, prior to the Consumer Protection Act of 2002, and provide services to the public, in-line with its mandate to provide alternative dispute resolution services to citizens and businesses. The mandate of the OCP is to attend to consumer complaints, promote a fair, efficient and transparent marketplace for consumers, provide consumer awareness and education campaigns, as well as financial literacy programmes. Cases received by the OCP are investigated by the office and all attempts are made to resolve the disputes via mediation and negotiation.
The Western Cape Consumer Affairs Tribunal was established in 2010. Members of the Tribunal were appointed for an initial term of 2 years, which was subsequently extended by the then Minister in 2012 for a further 3 years. However, the appointments lapsed in 2016 and no new appointments were made, due to fiscal constraints imposed on provinces by national government and the ensuing need for the department to prioritise strategic imperatives to enable economic growth and job creation in the province.
During this time, complaints were managed by the OCP and matters that were unresolved and which had merit for further action i.e. adjudication, were referred to the National Consumer Commission (NCC). This referral process is provided for and in line with the Consumer Protection Act, 2008, (Act 68 of 2008) which permits the NCC to thereafter make a decision on whether those referred matters would be adjudicated at the National Consumer Tribunal which has jurisdiction on all consumer related disputes in the country. It must be noted that even if the NCC decided not to forward a matter to the National Consumer Tribunal (NCT), the affected consumer was still within their rights to lodge the matter with the NCT directly for adjudication. This process therefore allowed for matters to be escalated to the NCT in the absence of the provincial Tribunal.
Alignment between national and provincial legislation in terms of the Consumer Protection Act:
National and provincial legislation is aligned in terms of the role and function of provincial consumer protection offices and the role of provincial Consumer Tribunals. The province is also in support of the Consumer Protection Act in so far as it provides an essential framework for the protection of consumer rights. A process is currently underway to achieve alignment on specific provisions contained in the Consumer Protection Act (CPA) that expand on consumer rights. The CPA acknowledges the roles of provincial consumer protection authorities and Consumer Tribunals especially in light of the fact that consumer protection is a concurrent function as per Schedule 4(b) of the Constitution.
Should a situation where a possible conflict between the provincial and national legislation arise, the provisions of the Constitution would be utilised to determine which legislation would prevail.
Skills collaboration with the National Youth Development Agency:
A core part of the OCP’s mandate is to provide consumer education services and programmes to citizens across the Western Cape. Based on this, the National Youth Development Agency (NYDA) approached the OCP after they became aware of existing consumer education projects run by the OCP to support one their programmes, namely to equip soon to be released prison inmates with the necessary skills to start a business on their release. The NYDA identified the need for the programme to include the issue of consumer protection since any business that operates must be aware of their legal obligations towards consumers. This includes issues such as the obligation to provide quality services and products and the rights of consumers in matters where quality is defective or compromised. As a result, the OCP was asked by the NYDA to provide this portion of the programme. Subsequently, the NYDA also asked the OCP to include the issue of basic financial literacy within the programme since any business must be aware of such matters. As such, the OCP now also provides workshops to attendees on money management, budgeting and credit matters including the National Credit Act.
Measures to mitigate undue influence over the Western Cape Consumer Affairs Tribunal:
Section 16 of the Western Cape Consumer Affairs Act, 2002 (Act 10 of 2002) sets out categories of nominees that are not eligible to be a member of the Western Cape Consumer Affairs Tribunal. This section therefore provides a safety mechanism, designed to ensure that the Tribunal is comprised of members that are impartial and not connected either politically or otherwise. Section 16 (1)(c) specifically deals with a nominee that has political interests and notes such person’s disqualification. In addition, the department conducted a stringent probity evaluation process on all the nominees that were recently interviewed for positions on the Western Cape Consumer Affairs Tribunal. The probity evaluations were instituted to ensure that potential nominees are unbiased, fit for purpose and compliant with the requirements as set in terms of section 16 of the Act.
Furthermore, members of the Tribunal and the Department of Economic Development and Tourism have an ethical responsibility to raise any concerns that might become apparent in the functioning of the Tribunal, if such instances arise. The Tribunal is also not a final decision maker since any decision is subject to review by the High Court.
