For the first time, a South African court in Van Wyk v UPS dealt with the application of the Consumer Protection Act to disclaimer clauses in a contract. On the facts, the court applied sections 22, 49 and 52 to sever from the agreement the specific clauses on which the defendant sought to escape liability or limit its liability.
The court said that section 49 of the Consumer Protection Act seeks to promote a fair, accessible and sustainable market place for consumer products and services. It clearly and unambiguously seeks to protect a consumer where a notice or provision purports to limit the risk or liability of the supplier or any person. It tempers the unjust and unfair application of the caveat subscriptor (let the signer beware) rule.
Consumers, that is individuals and businesses (whatever the form of legal entity with an asset value or turnover of less than R2 million), benefit from section 49 of the Consumer Protection Act.
While the Consumer Protection Act doesn’t apply to any transaction that constitutes a credit agreement under the National Credit Act (which was the document in which the relevant disclaimer clause appeared), goods and services that are the subject of a credit agreement are not excluded from the ambit of the Consumer Protection Act. The dispute related to the supply and carriage of an aircraft engine by the defendant to an individual. The sale is subject to the Consumer Protection Act’s protection.
The Consumer Protection Act doesn’t prevent outright the use of disclaimer clauses and notices in certain circumstances (other than those which seek to exclude liability for gross negligence). Those seeking to rely on disclaimers in transactions with consumers do need to ensure they comply with the Act.