The role of comparative law in consumer protection law: A South African perspective

• Jurisdiction: South Africa
• Date: 20 August 2019
• Published date: 20 August 2019
• Pages: 353-389
• Author: Jacolien Barnard

THE ROLE OF COMPARATIVE LAW IN

CONSUMER PROTECTION LAW: A SOUTH

AFRICAN PERSPECTIVE

JACOLIEN BARNARD*

Associate Professor, Department of Mercantile Law, University of Pretoria

ABSTRACT

This article illustrates the role of comparative law as a possible law

reform mechanism in consumer protection law from a South African

perspective. The South African legislature introduced very comprehen-

sive legislation in the area of consumer protection law in the form of the

Consumer Protection Act 68 of 2008. Certain provisions in the Act

mimic core European Union (EU) directives on consumer protection.

This article aims to establish why elements of a foreign law model were

introduced as part of law reform in South African consumer law, how

this was done, and whether it could assist in the effective interpretation

and enforcement of consumer protection measures. The focus is on a

general discussion of unfair commercial practices regulated by the EU

Unfair Commercial Practices Directive 2005/29/EC. It is argued that

comparative law plays a signif‌icant role in the effective interpretation

and enforcement of consumer protection law in South Africa. However,

cognisance must be taken of South Africa’s unique position, as well as its

societal and economic needs.

Keywords: comparative law; consumer protection; Consumer Protec-

tion Act; European Union; law reform; legal transposition; unfair

commercial practices; interpretation.

I INTRODUCTION

Perhaps the best way to start a contribution on comparative law and its

role in consumer protection, is to align oneself with the specif‌ic stance or

‘frame of reference’ from which critical research on the topic was

conducted.

1

In this regard the statement by Örücü is instructive:

‘Comparative law is an enigmatic, paradoxical and elusive subject in

that, just as one thinks one has mastered it, another puzzle appears

on the horizon. The puzzle starts with the name of the subject,

continue with its def‌initions, aims, objectives, methodology and its

* LLB (UP) LLM (Unisa) LLD (UP).

1

This research focuses on basic comparative-law concepts which may apply in the realm of

consumer protection law. An in-depth discussion of the legal discipline of comparative law is

beyond the scope of this contribution.

353

(2017) 29 SA Merc LJ 353

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use in practice and culminate in its value and signif‌icance for legal

science. Comparative law is at times in accord and at times in

discord with other branches of law. It embodies harmony and

disharmony and syncopation. It is stimulating yet routine. It is

enabling yet frustrating. It is poised to become a science of

tomorrow, the tool for understanding laws and cultures in the

globalizing world of the twentieth century and yet it is still not taken

seriously by many scholars. Its functions and malfunctions, concep-

tions and misconceptions, advantageous and disadvantageous are

under perpetual discussion.’

2

Comparative law is indeed an enigma. The debate has shifted from its

recognition as an important legal science, to determining whether it is

something that is perhaps ‘too big and too broad to properly def‌ine and

utilise taking into account traditional tools of classif‌ication and teach-

ing’.

3

For purposes of this contribution, the focus is on comparative law

as a possible mechanism for eff‌icient law reform in a particular legal

system. It has been argued that this is also one of the most important

purposes of comparative law today.

4

It should, however, be noted at the

outset that using comparative law models for purposes of law reform

should be undertaken with caution. Örücü states that even though

borrowing, transposition, and reciprocal inf‌luence are the essence of law

reform, there are signif‌icant differences of opinion among comparative

lawyers as to whether such borrowings work; whether movements are

one-way only, or reciprocal; and, most importantly, why law reform

should be based on foreign models.

5

She observes that law reform by way

of comparative law can be considered successful if the reform is

benef‌icial to the recipient and is done without disturbing the domestic

socio-culture.

6

Unsuccessful transpositions should serve as cautionary

examples when law reform based on foreign law is undertaken.

7

The aim of this article is to illustrate the role of comparative law as a

law reform mechanism in consumer protection law from a South

African perspective. The South African legislature introduced very

comprehensive legislation in the area of South African consumer

2

Örücü, The Enigma Of Comparative Law — Variations On A Theme For The Twentieth

Century (Martinus Nijhoff Publishers 2004) 1.

3

Örücü, (Martinus Nijhoff Publishers 2004) 2.

4

Blakesley, ‘Law, language, crime, and culture: The value and risks of comparative law’

(2013) Crim L Bull 49.

5

Örücü, (Martinus Nijhoff Publishers 2004) 92.

6

Örücü, (Martinus Nijhoff Publishers 2004) 92.

7

Colombo, ‘Japan as a victim of comparative law’ (2013–2014) 22 Mich St Int’l L Rev 731 at

755.

(2017) 29 SA MERC LJ

354

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protection law through the Consumer Protection Act (CPA).

8

Certain

provisions in the Act mimic core European Union (EU) directives on

consumer protection. The research aims to establish why elements of a

foreign law model were introduced as a law reform mechanism in South

African consumer law, how this was done, and whether it could assist in

the effective interpretation and enforcement of consumer protection

measures. Though many examples may be used, the focus in this article

is on a general discussion of unfair commercial practices regulated by

the EU Unfair Commercial Practices Directive 2005/29/EC (UCPD).

Many jurists and comparative lawyers appear to favour either the

term ‘legal transposition’ or ‘legal transplant’. There are various opin-

ions on what transplantation is or should be. Watson def‌ines it as the

moving of a rule or a system of law from one country to another

9

with

the notion that most changes in most legal systems occur as the result of

borrowing.

10

In contrast, Berkowitz, Pistor and Richard distinguish

between transplants with (receptive) and without (unreceptive) a

demand for the new law;

11

while Legrand states that legal transplanta-

tion is impossible.

12

The view of Örücü that the law should be

approached as a series of transpositions and tuning, and that the concept

of legal transplantation should rather be replaced with legal transposi-

tion, is supported.

13

The reason given by the writer is that the legal

transplant theory requires ref‌inement.

14

It appears that comparative law scholars use the terms ‘borrowing’

and ‘transplant’ interchangeably. Ellis refers to the ‘borrowing’ or

‘transplanting’ of rules between legal systems and their pertinence to

general principles of international law.

15

The writer explains borrowing

in its simplest form by stating that ‘bodies of law are not closed systems

but are better regarded as traditions, embedded in cultures. Because

cultures, including legal cultures, are in constant contact and communi-

8

Act 68 of 2008. The CPA is also referred to as the ‘South African model’ throughout this

contribution.

9

Watson, Legal Transplants: An Approach to Comparative Law (University of Virginia Press

1974) 22.

10

Watson, (University of Virginia Press 1974) 22.

11

Berkowitz, Pistor & Richard, ‘Economic development, legality, and the transplant effect’

(2003) 47.1 Eur Econ Rev 195.

12

Legrand, ‘The impossibility of legal transplants’ (1997) 4 MJECL 111.

13

Örücü, ‘Law as transposition’ (2002) 51 Int’l & Comp LQ 206.

14

Örücü, (1997) 4 MJECL 111. An in-depth analysis of the concepts ‘transposition’ and

‘transplant’ warrants a contribution on its own and is beyond the purpose and scope of this

contribution.

15

Ellis, ‘General principles of comparative law’ (2011) 22 European Journal of International

Law 950, 971.

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