Chapter 2 - Part A
FUNDAMENTAL CONSUMER RIGHTS Right of equality in consumer market Protection against discriminatory marketing 8.
(1) Subject to section 9, a supplier of goods or services must not unfairly
(a) exclude any person or category of persons from accessing any goods or services offered by the supplier;
(b) grant any person or category of persons exclusive access to any goods or services offered by the supplier;
(c) assign priority of supply of any goods or services offered by the supplier to any person or category of persons;
(d) supply a different quality of goods or services to any person or category of persons;
(e) charge different prices for any goods or services to any persons or category of persons;
(f) target particular communities, districts, populations or market segments for exclusive, priority or preferential supply of any goods or services; or
(g) exclude a particular community, district, population or market segment from the supply of any goods or services offered by the supplier, on the basis of one or more grounds of unfair discrimination contemplated in section 9 of the Constitution or Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act.
(2) Subject to section 9, a supplier must not directly or indirectly treat any person differently than any other, in a manner that constitutes unfair discrimination on one or more grounds set out in section 9 of the Constitution, or one or more grounds set out in Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act, when
(a) assessing the ability of the person to pay the cost, or otherwise meet the obligations, of a proposed transaction or agreement;
(b) deciding whether to enter into a transaction or agreement, or to offer to enter into a transaction or agreement;
(c) determining any aspect of the cost of a transaction or agreement to the consumer;
(d) interacting with the consumer
- (i) in the supplier's place of business, or
- (ii) in the course of displaying or demonstrating any goods, testing or fitting any goods, or negotiating the terms of a transaction or agreement; or
(e) selecting, preparing, packaging or delivering any goods for or to the consumer, or providing any services to the consumer;
(f) proposing or agreeing the terms and conditions of a transaction or agreement;
(g) assessing or requiring compliance by the person with the
(h) exercising any right of the supplier under a transaction or agreement in terms of this Act or applicable provincial consumer legislation;
(i) determining whether to continue, enforce, seek judgment in respect of, or terminate a transaction or agreement; or
(j) determining whether to report, or reporting, any personal information of such person.
(3) Subsections
(1) and (2) also apply in respect of a consumer that is an association or juristic person, to prohibit unfair discrimination against that association or juristic person based on the characteristics of any natural person who is a member, associate, owner, manager, employee, client or customer of that association or juristic person.
(4) Nothing in this section is intended to limit the authority of a court to
(a) consider any conduct between a supplier and a consumer that is not contemplated in this section; or
(b) find that any such conduct constitutes unfair discrimination within the meaning of the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act. Reasonable grounds for differential treatment in specific circumstances
9. (1) It is not a contravention of section 8 for a supplier to
(a) refuse to supply or provide access to any particular goods or services to a minor, or to require the consent of a parent, guardian or other responsible adult before supplying or providing access to any particular goods or services to an unemancipated minor
(i) in accordance with any public regulation; or
(ii) as a reasonable precaution to protect the health, welfare or safety of a minor;
(b) refuse on reasonable grounds to
(i) enter into an agreement with a minor for the supply of any goods or services; or
(ii) continue, or renew, an agreement contemplated in subparagraph
(i), unless the supplier has reason to believe that the minor is emancipated;
(c) reasonably designate any facility or service, permanently, or from time to time, for the exclusive use of
(i) minors generally;
(ii) minors who are above or below a specified age, or between specified ages; or
(iii) adults who have attained a specified age of at least 60 years; or
(d) advertise, offer or agree to supply, or supply, any goods or services at a discounted price solely on the basis that the consumer
(i) is a minor who has not yet attained a specified age; or
(ii) is an adult who has attained a specified age of at least 60 years.
(2) It is not a contravention of section 8 for a supplier to reasonably
(a) provide and designate separate but substantially equivalent facilities for the exclusive use of persons of each gender; or
(b) offer to supply or provide access to a facility exclusively to persons of one gender.
(3) It is not a contravention of section 8 for a supplier to market any goods or services in a manner that implies or expresses a preference for a particular group of consumers who are distinguishable from the general population on the basis of a ground of discrimination set out in section 9(3) of the Constitution, if the particular goods or services are reasonably intended or designed to satisfy any specific needs or interests that are common to, or uniquely characteristic of, that particular group of consumers.
(4) Nothing in this section is intended to limit the authority of a court to
(a) assess the reasonableness of any conduct, to the extent contemplated in subsections (1)(b) or (c), (2) or (3), and determine whether any conduct not reasonably justified, as contemplated in those subsections, constitutes unfair discrimination within the meaning of the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act; or
(b) determine whether any conduct contemplated in section 8 was fair in the circumstances of a particular transaction or the marketing of any particular goods or services, as the case may be. Equality court jurisdiction over this
Part 10.
(1) In respect of an alleged contravention of this Part, an accredited consumer protection group, or any person contemplated in section 20(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, may either (a) institute proceedings before an equality court in terms of Chapter 4 of thatAct; or
(b) file a complaint with the Commission, which must refer the complaint to the equality court, if the complaint appears to be valid.
(2) In any proceedings contemplated in this Part
(a) there is a presumption that any differential treatment contemplated in section 8 is unfair discrimination, unless it is established that the discrimination is fair; and
(b) a court may draw an inference that a supplier has discriminated unfairly if
(i) the supplier has done anything contemplated in section 8 with respect to a consumer in a manner that constituted differential treatment compared to that accorded to another consumer;
(ii) in the circumstances, the differential treatment appears to be based on a prohibited ground of discrimination; and
(iii) the supplier, when called upon to do so, has refused or failed to offer an alternative reasonable and justifiable explanation for the difference in treatment.