By Peggy Malele, Phukubje Pierce Masithela Attorneys
Section 8 of the CPA aims to protect the consumer against any act that amounts to discriminatory marketing. In terms of this act, a service provider will be prohibited from marketing or providing its products and or services to restricted communities or a category of persons. It further prohibits the exclusive provision of goods of a certain quality or specific prices to a particular community, person or market segment. An act will be interpreted as discriminatory if it is based on one or more of the grounds of unfair discrimination as contemplated in section 9 of the constitution example race, gender, age etcetera.
So what is the implication of the aforementioned section to service providers? Take for instance this hypothetical situation: if you are a sari retailer, will this mean that you will be forced to market your goods or services in the Free State as intensively as you do in Durban, considering that your clientele will mainly be based in Durban? In other words, will a service provider be compelled to market its services to communities or persons notwithstanding a foreseeable lack of benefit concerning their enterprise in the area concerned?
Section 9 (3) offers a solution to this question as it provides that an act will not be considered discriminatory if the marketing of goods is conducted in a manner that expresses preference to a particular group “if the particular goods or services are reasonably intended or designed to satisfy any specific needs to interest that are common, or uniquely characteristics of, that particular group of consumers”.
Exceptions to Section 9
Section 9 also provides that conduct will not be regarded as discriminatory if a service provider refuses to sell products to a minor or requires the consent of his parent or guardian before the provision of such services. A common example of this is where a service provider is approached to sell liquor to a minor.
The Act also address the issue of consumer privacy, specifically unwanted direct marketing.[i] Section 11 of the act provides that a consumer will have a right to refuse direct marketing, require the discontinuation or request a pre-emptive block against communication that is mainly for the purpose of direct marketing. This gives the consumer the right, when approached by a marketer, to choose whether he refuses, requests a discontinuation or requests a pre-emptive block of market related communication from that specific service provider.
Regulation of Marketing Time
What is more interesting about this section is that in terms of section 12 (2) of the Act, the minister may by notice in the government gazette, prescribe specific days, public holidays or dates when suppliers will be prohibited from engaging in direct marketing directed at the consumer at home. The implementation of this section might prove difficult in relation to marketing conducted to the consumer’s cell phone or email address, as it may be difficult to determine whether a consumer is home or not.
It is important to note that any unfair treatment will presumably be regarded as unfair discrimination unless the service provider can prove that the discrimination is fair. Therefore, any complaint relating to the contravention of the aforementioned sections is to be referred to the Equality Court or filed with the National Consumer Commission which will refer it to the Equality Court should it consider it valid. Therefore the Equality Court remains the ultimate body that decides whether any conduct amounts to discriminatory marketing or not.
PEGGY MALELE, CANDIDATE ATTORNEY
PHUKUBJE PIERCE MASITHELA ATTORNEYS
10 MARCH 2011
[i] Direct marketing means to approach a person, either in person or by mail or
electronic communication, for the direct or indirect purpose of -
(a) promoting or offering to supply, in the ordinary course of business, any
goods or services to the person; or
(b) requesting the person to make a donation of any kind for any reason.