The Consumer Protection Act gives consumers the right to demand quality service, which included services provided by government. Specifically, all consumers of Government services have the right to:
- The timely performance and completion of those services
- Timely notice of any delay in the performance of the services
- The performance of the services in a manner and quality that persons are generally entitled to expect
Where your municipality or provincial government or national government provides you with a good (e.g. a licence or permit, a facility or amenity, infrastructure like roads, sewerage, water purification plants etc., electricity and water), the Consumer Protection Act requires that these goods are:
- reasonably suitable for their intended purpose
- of good quality, free of defects and in good working order
- usable and durable for a reasonable period of time, and
- if an activity or facility is provided, then the consumer must be warned beforehand of any unusual, unexpected or serious risks
- if any unsafe goods are supplied, or there is a product failure or defect in the goods or inadequate warnings or instructions were provided to the consumer, then Government is liable to pay compensation for any resulting damage.
Consumers can enforce these rights by (i) lodging a complaint with the National Consumer Commission free of charge, which is then supposed to investigate and refer the issue to the National Consumer Tribunal for adjudication, or (ii) by approaching a court for a court order. The Tribunal cannot deal with damages claims, but can order Government to meet its obligations under the law by a set deadline. The National Consumer Commission is not always equally proactive, so approaching the High Court in your province may be a better option. Where the issue is urgent, e.g. the supply of clean water to residents is interrupted, the court will hear the matter very soon after the application is made.
Where a municipality is dismally failing to provide a key service, such as refuse removal, ratepayers may ask the court for permission to pay their rates and charges for refuse removal into a different account, which is then used to pay a private service provider to undertake the service. The Consumer Protection Act envisages ratepayers claiming a refund of charges they have paid for a service that has not been provided by Government, or a partial refund where the services are defective.
Practical tips for communities:
- South African are often too polite to complain or insist on good service. Remember, we all paid for these government services- we can insist on receiving our money’s worth. Those services must be provided effectively in every area of town. We often see that previously advantaged areas get better service- that is unfair discrimination which is illegal in South Africa.
- Start by gathering a group of decisive citizens who are committed to stay the course (the “committee”). Decide on the exact issue you want to tackle.
- Then galvanise as broad-based a support base within your town or province as you can, including businesspeople, famers’ associations, grassroots organisations, religious leaders etc. It’s particularly important to get the local press on your side.
- Identify who the official is who is the final decisionmaker on the issue. You can usually do this by contacting your local councillor. You can find him or her at https://www.elections.org.za/pw/StatsData/List-Of-Current-Ward-Councillors. Set up a meeting with the official and the Mayor / Premier and take a small carefully selected delegation along to the meeting. Diplomatically outline the problem, offer the community’s support in assisting the official with their challenges and ask what is preventing the official from resolving the problem and how long he or she needs to be able to do this. Agree to a deadline for resolving the issue, if possible. Explain courteously that if the deadline is not met, the group will approach a lawyer and that the outcome of the meeting will be reported to the press.
- Persuade your local newspaper or radio station or both to report on the meeting. If the deadline is met, no further action is needed, and the committee may wish to identify a new issue to tackle. The press should be persuaded to report on whether the deadline was met or not.
- If the deadline is not met, involve your local attorney (he or she is welcome to contact our firm for further input on consumer law if they wish) and instruct them to send the relevant official a letter of demand setting out exactly what the officials must do regarding your issue, which is copied to the Mayor / Premier. The letter must demand clear and measurable deliverables and set a realistic deadline by when this must be done. Negotiate the legal fees upfront and have each person in the group sign a contract where their contribution and the due date is recorded. The attorney will usually want the legal fees for the letter to be paid before starting work. Some attorneys will be willing to work at a reduced fee or even pro bono for the sake of the good of their community.
- If the deadline in the letter is met, no further action need be taken and the committee can decide whether they wish to tackle another issue. If the deadline is not met, the Committee can lodge a complaint with the National Consumer Commission at https://www.thencc.gov.za/welcome and send a copy of the complaint to the official and the Mayor / Premier and the Public Protector’s office.
- The attorney can then bring a court application on behalf of the group. The Government does not usually defend court cases very effectively, which will count in your favour. Court applications are expensive, so we recommend that as large a group of concerned citizens and civil society organisations work together and share the legal costs. The quicker the court case is finalised, the lower the legal fees will be.
Anyone who has suffered damage to their vehicle as a result of potholes, or medical problems as a result of for example sewerage contamination caused by lack of service delivery, etc. can sue the relevant governmental body in terms of the no-fault liability section, section 61, in the Consumer Protection Act. It’s a much easier process than suing in delict since you do not need to prove that the governmental body was negligent- they are liable for your damages if the goods they supplied malfunctioned, were unsafe or were defective or they didn’t provide you with appropriate warnings or instructions and as a result you suffered harm.
By Trudie Broekmann