Responsive governance : consumer protection legislation and its effect on mandatory and default rules in the contract of sale

• Jurisdiction: South Africa
• Author: Luanda Hawthorne
• DOI: 10.10520/EJC153198
• Published date: 01 January 2011
• Date: 01 January 2011
• Pages: 431-448
• Published By: UNISA Press

Responsive governance: Consumer

protection legislation and its effect on

mandatory and default rules in the

contract of sale

Lua nda Hawtho rne

*

1 Introduction

The sovereignty of human rights has been vindicated recently by the revolutions

in Tunisia and Egypt, the present civil war in Libya and the turbulence in other

North African and Middle Eastern countries, such as Yemen and Bahrain. It is

significant that the preponderance of grievances was of an economic nature and

that the immediate trigger is held to have been consumer dissatisfaction resulting

from the exorbitant increase in the cost of living in these areas. This exemplifies

the truism that human dignity is an elusive concept with multiple facets. The

solution of the Bahrain government to pay each citizen a once-off amount of

money can be viewed as an insult to the human dignity of their citizens, rather

than recognition of their human righ ts.

Promulgation of Consumer Protection legislation gives effect to recognition

of the need to develop and employ innovative means to fulfill the rights of

historically disadvantaged persons and to promote their full participation in

society. Consumer legislation driven by the Constitutional imperative to social

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transformation transcends the public-private divide by recognising and giving

effect to Human Rights and acknowledging that the law of contract involves

distributive justice.

2

Professor. Department of Private Law. Unisa.

*

Preamble to the Consumer Protection Act 8 of 20 08; Liebenberg Socio-econo mic rights

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adjudication under a transformative Constitution (hereafter referred to as ‘Socio-economic rights’)

(2010) 23; 59.

Hawthorne ‘The “new learning” and transformation of contract law: Reconciling the rule of law with

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the constitutional imperative to social transformation’ (hereafter referred to as ‘New learning’) (2008)

SAPR/PL 77.

432 (20 11) 26 SAPL

In this paper I will examine the phenomenon of responsive governance in the

form of consumer protection legislation in South Africa as propelled by the

Constitution and the Bill of Rights . I will concentrate on the proactive legislation

introducing robust consumer protection reforms aimed at the elimination of

exploitation and coercion, and deal with the most striking changes pertaining to

the contract of sale.

2 The impetus tow ards responsive governance:

The Constitution and the Bill of Rights

The response by the South African Government may be attributed to the fact that

the new democratic order is founded on recognition of huma n rights, and the

increasing awareness that realisation of civil and political rights has not been

accompanied by the same realisation within the domain of socio-economic rights.

Human dignity is the founding value of the South African state and the objective

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of the Const itution is to achieve social justice and free the potential of each

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person. The pre-eminence of human dignity is in essence a reflection of the fact

that human dignity is the most important human right from which all other

fundamental rights derive. Not only is human dignity inherent to every human

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being, inalienable and independent of the state, human dignity is also the only

absolute right, which can neither be suspended nor limited. Unanimously held to

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be the paramount human right, the interdependence principle recognises that all

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Section 1(a) Act 108 of 1996 states that: ‘The Republic of South Africa is one sovere ign,

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democratic state founded on … [h]uman dignity, the achievement of equality and the advancement

of human rights and freedoms’. Consequently, the achievement of equality and the advancement

of human rights and freedoms is part of human dignity.

Preamble to the Constitution. Hawthorne ‘New Learning’(n 2) 77; Botha ‘The legiti macy of legal

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orders (3): Rethinking the rule of law’ (hereafter referred to as ‘Rule of Law’) (2001) THRHR 523;

Liebenberg Socio-economic rights (n 1) 27.

Woolman ‘Dignity’ in Woolman, Roux and Bishop (eds) Constitutional law of South Africa (2009)

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(hereafter ‘Constitutional law’) 36-1; Botha ‘Human digni ty in comparative perspective’ (hereafter

referred to as ‘Human dignity’) (2009) 2 Stell LR 171; Ack ermann ‘The legal nature of the South

African constitut ional revolution’ (2004) 4 New Zealand LR 650; in Dawood v Minister of Home

Affairs 200 0 3 SA 936 (CC), 2000 8 BCLR 837 (CC) para 35, O’Regan J held that: ‘[H]uman

…dignity informs constitutional adjudication and interpretation at a range of levels. It is a value that

informs the interpretation of many, pos sibly all, other rights. …’; also in S v Makwanyane 1995 3

SA 391 (CC), 1995 6 BCLR 665 (CC) para 144 the court held that dignity, together with the right

to life, is: ‘the most important of all human rights, and the source of all other personal rights’. This

also applies to the German Basic Law (Grundgesetz). Cherednychenko Fundamental rights ,

contract law and the protection of the weake r party (2007) 248 n 44.

Sections 36 and 37 and s 7(3). As stated in s 36(1) of the Constitution the other human rights can be

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limited but only to ‘the extent that the limitation is reasonable and justifiable in an open and democratic

society based on human dignity, equality and freedom…’; Botha ‘Human dignity’ (n 5) 198.

Pieterse ‘The legitimizing/insulating effect of socio-economic rights” (2007) 22 Canadian Journal

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of Law and Society 1 at 2 (n 4);