Since the decision in Afriforum v Minister of Trade and Industry and others  3 All SA 52 (GNP) delivered in February 2013, it is clear that for the time being at least, all municipalities are now exposed to the full effect of the Consumer Protection Act.
A bit of legal background: Schedule 2 of the Act provides for its incremental implementation. Item 2 of the Schedule allows the Minister of Trade and Industry to defer the effective date of certain specified provisions for any low or medium capacity* municipality. The Minister accordingly issued two notices, which deferred the operation of sections 8-10 and 53-61 until 30th June 2014 for low capacity municipalities, and until 31st December 2013 for medium capacity municipalities. The effect was that the consumers in these municipalities could not seek redress against the municipalities for unsatisfactory services in terms of the Act.
Afriforum took the Minister to court to challenge the deferment on a number of grounds.
The Court acknowledged the fact that many municipalities struggle with service delivery, but found that the notices were contrary to a number of provisions in the Promotion of Administrative Justice Act and that the Minister could not defer rights as fundamental as consumer rights without proper legal compliance and sufficient legal clarity. The court felt the distinction between low, medium and high capacity municipalities was not appropriate to assess a municipality’s ability to provide services and referred to an existing detailed analysis of municipalities which allows for a more accurate distinction to be drawn.
The Court accordingly set aside the second notice, to take effect within 30 days of the order, which is dated 28th February 2013. The Minister had revoked the first notice earlier. The Minister was directed to publish a new notice by 31st July 2013 listing the specific municipalities in respect of which the sections of the Act should be deferred.
The Court emphasized the fact that the rights and concerns of consumers cannot be deferred indefinitely. Great attention was paid to the important role that municipalities have to play in society and the impact that the services they deliver have on the quality of life of every person residing in a municipality, something which affects human dignity. The Court balanced the interest of the Government in deferring the implementation of the Act due to its service delivery challenges against the need to regulate the quality of service delivered by municipalities. The Court’s conclusion was that provisions should be deferred only for a specific period of time in respect of specific municipalities.
To date, the Minister has issued no further notice deferring the operation of the Act. With one notice revoked and the other set aside, all South African municipalities find themselves in a position where they must comply fully with the Act, and are open to liability if they do not. The Court mentioned that “[t]here may be some concern that once the CPA applies to every municipality there would be an avalanche of citizens living within those municipalities rushing to enforce their rights in terms of the CPA against those particular municipalities”. In the absence of any action by the Minister, in our view, municipalities are sitting ducks.
With a weapon as powerful as the Consumer Protection Act at their disposal and seemingly no obstacle in their way, it would appear that the time has come for disgruntled consumers in municipalities to take to the Courts rather than the streets to voice their complaints.
* National Treasury issued a list of all municipalities in South Africa in 2004, designating each one either a high, medium or low capacity municipality.
Co-authored by Chrisna Nöthling and Trudie Broekmann