The role of the courts in the application of consumer protection law: A comparative perspective
The vast majority of jurisdictions (in particular, the European Union and South Africa) conform to the United Nations Guidelines for Consumer Protection, whereby governments are encouraged to establish and maintain legal and administrative measures to enable a consumer to obtain redress through both formal and informal procedures, with particular regard to the needs of vulnerable (low-income) consumers. The Guidelines for Consumer Protection encourage the resolution of consumer disputes in a manner that is not only fair and expeditious, but also includes the establishment of voluntary mechanisms and procedures. In this regard, the European Union and South Africa have established redress and enforcement of consumer protection mechanisms with a primary focus on consensual consumer dispute resolution and, more specifically, alternative dispute resolution. This does not, however, diminish the important role and responsibility that courts have in the effective enforcement of consumer protection law. This contribution aims to establish the role of the courts in this regard, not only for the advancement of consumer rights and consumer protection law, but also taking into account the ex officio role of the courts in relation to the effective (or ineffective) alternative dispute resolution mechanisms that are currently in place. The contribution analyses the comparative positions in the European Union and South Africa. In terms of the European Union position, focus is placed on the application of the relevant consumer directives within Member States, taking into account pre-existing national law and its interpretation by national courts. The primary focus, in terms of the South African position, is an analysis of the enforcement institutions and redress provisions contained in the Consumer Protection Act 68 of 2008, taking into account the interpretation of these provisions by the relevant institutions and the courts. This contribution highlights problematic issues with the current alternative dispute resolution mechanisms, resulting in ineffective consumer protection and the ex officio role of the courts to address these issues. It aims to confirm that the right to access to the courts is a constitutionally entrenched right and a balance between effective formal and informal enforcement should be the aim.