In South Africa we have the National Consumer Commission (NCC) which is meant to protect consumers from unfair business practices. Mr Hardin Ratshisusu is the current Consumer Commissioner. Exactly!
The NCC established in terms of the law, the CPA (Consumer Protection Act). The Minister of Trade, Industry and Competition is responsible for the law and the regulations that flow from it. If, as a consumer/customer, you are treated badly, or unfairly by a business/shop you can report them to the NCC. In theory the NCC should be among the agencies that are at the forefront of the recently reported kids poisoning incidents.
Those who have a luxury of complaining seem to prefer social media or Hellopeter over the NCC. It is unclear how long it would take for the NCC to earn a reputation for doing its work efficiently, and effectively, with a public profile similar to the Public Protector, the Human Rights Commission, or the CCMA.
On 28 October 2024, the Minister published a draft amendment to the regulations that is meant to provide additional protection to consumers, especially from direct marketing, that usually happens through unwanted phone calls and inconvenient times. The draft amendments were published for public comment, and comments close on Wednesday, 15 January 2025. If you wish to make your input, you can email it to SSasayi@thedtic.gov.za
The main law (CPA) already prohibits unwanted phone calls (in section 11). It is unclear how many companies have been punished for the crime of unwanted calls since the law was passed in 2009.
The problem of continuing, and increase of, unwanted calls seem to be a failure of enforcement by the NCC rather than the gaps in the law or in regulations.
The draft regulations are written in a legalistic double negative language that may be confusing for an average person. However, it seems the draft regulations essentially do two things;
- Make it compulsory for direct marketers to register with the NCC, annually
- Provide consumers with an opportunity to register on a list of numbers that should never be contacted (pre-emptive block registry)
A list already exists for consumers who wish to be never contacted. However, that list was created by the Direct Marketing Association of South Africa (DMASA) out of their own initiative as an association. As such the enforcement of that was lose, compared to the enforcement what would be provided by the regulations, if properly enforced.
The law (CPA, Sections 111-112) provides for a fine or imprisonment of up to 12 months for breaking the law. If further provides for an administrative fine of 10% of the accused’s annual turnover or R1 million. Again, it is unclear how many companies, or persons, have been jailed, or fined, thus far, if any. And if there is none, why have not been any.
It is extremely odd that the regulations seek to establish an opt-out registry. Ideally, the regulations should enable to the Commission to establish an opt-in registry. No direct marketer should contact the customer until the customer asked to be contacted. Instead, the regulations set the scene for that direct marketers can contact the consumers until the consumers fill out a form asking not to be contacted.
In the field of behavioural science, opt-out approach is considered a policy choice that is intended to have the majority stay in (citation pending). It is a curious development that the regulations are framed with an opt-out approach, and it may be futile to attempt to persuade government towards opt-in, or a more respectable enhanced active choice approach.
Oddly, there is another law, POPIA (Protection of Personal Information Act, in Section 69), and the body called the Information Regulator, currently led by Mr Mosalanyane Mosala, which is responsible for protecting the information of consumers against abuse by direct marketing callers. Exactly! Two laws and two institutions but still insufficient protection for consumers and very little, if any, punishment for direct marketers.
To make inputs, you should send an email to SSasayi@thedtic.gov.za before Wednesday, 15 January 2025. If you have no idea what input to make, but wish to make input, just copy and paste the text below.
Dear DTIC,
In amendments to Regulation 4, insert (j) in sub-regulation (7) with the text;
(j) keep records of contacted consumers, including missed calls and calls from automated machines, as well as make them readily available for inspection by the Commission in case of a complaint. The records must be kept for a period not shorter than 180 days.
In amendments to Regulation 4, insert (f) in sub-regulation (10) with the text;
(f) refuse annual registration of a direct marketer in terms of (7)(a), if that direct marketer has been found to be a repeat offender in contacting consumers who are registered on the pre-emptive block.
The amendments should further insert an Annexure of fines for direct marketers for contacting consumers in the pre-emptive block registry. The fines should be substantial enough to encourage compliance, rather than rely on consumer complaints and assigning resources to investigating the complaints.
Thank you for considering this input
Kind regards
Name and Surname
As pointed out earlier, it is unclear whether the ineffectiveness of the NCC is because of the statutory gaps, capacity constraints, or outright incompetence. The availability of call/contact records should enable the speedy resolution complaints, especially from consumers who are registered on the pre-emptive block.
Hopefully, future governments, based on manifestos of their political parties will implement the opt-in approach to this specific policy, with the aim of protecting consumers from harassment by direct marketers. Also that future government would, hopefully, make reporting transgressions so easy that it could be done with two clicks on an app, and get an outcome within 2 working days. Currently none of the political parties seem interested on this subject. They are all indifferent to the harassment of citizens.
Any direct-marketer who contacts a consumer essentially implies that, “I do not care what you are currently busy with, but stop what you are doing and attend to me now!” It is rude and annoying. Spam blockers like Truecaller have their place but government should be protecting consumers more. Of course the blame and anger cannot be directed to the call centre agents who, in the face of paralyzing unemployment, are only trying to eke out a living. It is the corporations, and their owners, that enslave workers in slave wages and slave hours who must punished accordingly.
In 2024, no one should be calling anyone. Everyone should all be texting each other. More reasons why no one should be calling anyone are contained in this article originally written by Scott Adams. The only exception could be emergencies, a suitor trying to court or during the honeymoon phase of the relationship. Outside of those, no one should be calling anyone, let alone random strangers trying to sell a cellphone contract to someone who does not afford it. It is harassment and a waste of time for both parties.