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Fundamental Consumer Rights
Part A: Right of equality in consumer market
8. Protection against discriminatory marketing
Section 8 prevents a supplier of goods or services from unfairly discriminating against any person or category of persons by:
- excluding them from accessing any goods or services offered by the supplier;
- granting them exclusive access to any goods or services offered by the supplier;
- assigning priority of supply of any goods or services to any person or category of persons;
- supplying a different quality of goods or services to any person or category of persons;
- charging different prices for any goods or services to any persons or category of persons;
- targeting particular communities, districts, populations or market segments for exclusive, priority or preferential supply of any goods or services; or
- excluding a particular community, district, population or market segment from the supply of any goods or services offered by the supplier,
on the basis of one or more grounds of unfair discrimination contemplated in section 9 of the Constitution (race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, age, sexual orientation, disability, religion, conscience, belief, culture, language and birth ) or Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act. It is not discrimination per se that is prohibited, but discrimination that is unfair. ‘Discrimination’ is defined in the Equality Act as any act or omission(including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantages on, or withhold benefits, opportunities or advantages from any person on one or more of the prohibited grounds.
A supplier must not, directly or indirectly treat any person differently in a manner that constitutes unfair discrimination on one or more of the prohibited grounds when:
- assessing the ability of the person to pay the cost, or otherwise meet the obligations, of a proposed transaction or agreement;
- deciding whether to enter into a transaction or agreement, or to offer to enter into a transaction or agreement;
- determining any aspect of the cost of a transaction or agreement to the consumer;
- interacting with the consumer in the supplier's place of business, or in the course of displaying or demonstrating any goods, testing or fitting any goods, or negotiating the terms of a transaction or agreement; or
- selecting, preparing, packaging or delivering any goods for or to the consumer, or providing any services to the consumer;
- proposing or agreeing the terms and conditions of a transaction or agreement;
- assessing or requiring compliance by the person with the terms of a transaction or agreement;
- exercising any right of the supplier under a transaction or agreement in terms of this Act or applicable provincial consumer legislation
- determining whether to continue, enforce, seek judgment in respect of, or terminate a transaction or agreement; or
- determining whether to report, or reporting, any personal information of such person.
9. Reasonable grounds for differential treatment in specific circumstances
It is not unfair discrimination for a supplier to refuse to supply or provide access to any particular goods or services to a minor, or to require the consent of a parent, guardian or other responsible adult before supplying or providing access to any particular goods or services to an unemancipated minor, in accordance with the law or as a reasonable precaution to protect the health, welfare or safety of the minor.
It is admissible to offer any facility or service for the exclusive use of minors generally, or for a specified age group, like pensioners, who have attained a specified age of at least 60 years. It is also admissible to advertise, offer or agree to supply, or supply, any goods or services at a discounted price solely on the basis that the consumer is a minor who has not yet attained a specified age; or is an adult who has attained a specified age of at least 60 years.
It is not a contravention of section 8 for a supplier to reasonably provide and designate separate but substantially equivalent facilities for the exclusive use of persons of each gender; or to offer to supply or provide access to a facility exclusively to persons of one gender. A supplier may market any goods or services in a manner that implies or expresses a preference for a particular group of consumers who are distinguishable from the general population on the basis of a ground of discrimination set out in section 9(3) of the Constitution, if the particular goods or services are reasonably intended or designed to satisfy any specific needs or interests that are common to, or uniquely characteristic of, that particular group of consumers. One is also not allowed to discriminate against a consumer for exercising rights in terms of the CPA. See section 68.
10. Equality Court jurisdiction over this Part
The Equality and Consumer Protection Acts will have parallel enforcement, and nothing in this section is intended to limit the authority of a court to assess the reasonableness of any conduct, and to determine whether any conduct not reasonably justified, as contemplated in those subsections, constitutes unfair discrimination within the meaning of the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act. In respect of an alleged contravention of Part A of Chapter 2, an accredited consumer protection group, or any person contemplated in section 20(1) of the Equality Act may institute proceedings before an equality court or file a complaint with the National Consumer Council. The NCC must refer such a complaint to the equality court if the complaint appears to be justified.
In any proceedings contemplated in Part A of Chapter 2 of the Act there is a presumption that any differential treatment contemplated in section 8 is unfair discrimination, unless it is established that the discrimination is fair. A court in any proceedings contemplated in this part may draw an inference that a supplier has discriminated unfairly if-
- the supplier has done anything contemplated in section 8 with respect to a consumer in a manner that constituted differential treatment compared to that accorded to another consumer;
- in the circumstances, the differential treatment appears to be based on a prohibited ground of discrimination; and
- the supplier, when called upon to do so, has refused or failed to offer an alternative reasonable and justifiable explanation for the difference in treatment.
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