What Zimbabwean Businesses Need to Know about Consumer Rights (Part I)
In April 2021, the Minister of Industry and Commerce appointed the Consumer Protection Commission (CPC). In effect, this move facilitated the implementation of the Consumer Protection Act, which since 2019 had been in force. This article explores the key issues that businesses need to be aware of in the advent of the newly appointed commission.
Background
For more than a decade, the rights of consumers were enshrined in the Consumer Contracts Act (“the old Act”). The Old Act had a narrow definition for what a consumer is and afforded little protection of the rights of consumers. It did not incorporate or address problems that consumers face in age of e-commerce and digital contracts. In addition, only the courts had powers to enforce the rights of consumers.
The Consumer Protection Act, [Chapter 14:37] “CPA” brought drastic measures to protect consumers. It establishes the CPC, and lays out fundamental consumer rights, regulates electronic transactions and provides for penalties to offenders.
The CPA expands the definition of a consumer as it defines a consumer in five separate categories as (i) any person in respect of any particular goods or services to whom those particular goods or services are marketed; or (ii) a person who enters in to a transaction with a supplier or service provider; or (iii) a user, recipient or beneficiary of those particular goods or services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those goods or services (iv) any person who purchases or offers to purchase goods or services supplied by an enterprise in the ordinary course of business; or (v) any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale.
The Act excludes a person who purchases goods or services for the purpose of using the goods or services in the production and manufacture of any other goods for sale or the provision of another service for remuneration as a consumer. The Old Act on the other hand merely defined a consumer contract without clearly stating who the consumer is.
FUNDAMENTAL RIGHTS OF THE CONSUMER
The CPA gives consumers extensive new rights and some previously existing rights have been broadened. Suppliers will have to evaluate whether their business practices are in line with proper trade practices and must provide services that are fair, efficient, sustainable and transparent in the marketplace for consumers. The following consumer rights must be observed by all businesses:
Part A: RIGHT TO EDUCATION
Right to consumer education and awareness (section 9) Consumers have the right to consumer education which includes but is not limited to information on the environmental impacts of consumer choices and behaviour. Businesses must also provide information on the possible implications, benefits, and costs of changes in consumption. Consumers must be made aware of any product hazards to their health or environment. Consumer education and awareness provides resources and information that inform consumers of things such as prices and even trade practices. Upholding the right to consumer education is tripartite as it involves the consumer, business, and the government.
Part B: RIGHT TO HEALTH AND SAFETY (Ss 10-17)
Part B of the CPA deals with the right to health and safety and imposes several obligations on suppliers of goods and services.
Right to fair value, good quality and safety of goods and services (section 10) Section 10 prohibits businesses from selling or marketing any goods or services to consumers unless such goods or services conform to the mandatory safety and quality standards prescribed in accordance with any laws. It also ensures that consumers receive goods or services that are safe and free from defects and hazards and that they are reasonably suitable for the purposes for which they are generally intended for and are provided at a fair price. Suppliers must therefore ensure that their products are in conformity with the sector prescribed standards and guidelines.
Implied warranty of quality (section 11) In terms of section 11, there is an implied provision of warranty of quality by a business in any transaction or agreement pertaining to the supply of goods or services to a consumer. A consumer can return goods without penalty within six months of purchase if the goods fail to satisfy the requirements and expected standards at the supplier’s risk and expense. In effect, this means that it is illegal for suppliers to try to curtail this warranty.
Warranty on repaired goods (section 12) This provision applies to businesses that repair, install, recondition, and maintain products. Such service providers must provide a warranty for a minimum of six months for every new or reconditioned part installed during any repair or maintenance work, and the labour required to install it. The warranty must be read with any other, implied or express warranty and it is void if the consumer has subjected the goods or part of the goods to misuse or abuse. The warranty is not applied to ordinary wear and tear, having regard to the circumstances in which the goods are intended to be used.
Prohibition of harmful products (section 13) Businesses are prohibited from supplying any goods or services that may subject consumers to risk of an unusual nature or risk of which a consumer could not reasonably be expected to be aware of, or risk that could result in serious injury or death. When supplying such harmful products, the supplier must clearly display on or within that packaging a notice providing the consumer with adequate instructions for the safe handling and use of those goods. Further, the supplier must specifically draw the fact, nature, and potential effect of that risk to the attention of the consumer in a plain and understandable language and the consumer must have assented to that provision or notice by signing or initialing the provision or otherwise acting in a manner consistent with acknowledgement of the notice, awareness of the risk and acceptance of the provision. Contravention of this provision renders a supplier guilty and liable to a level 14 fine which is currently at ZW$1 600 000 and/or a maximum two years imprisonment.
Recovery and safe disposal of designated products or components (Section 14) This section mandates suppliers of goods whose packaging or parts are prohibited by law to be disposed of or deposited in a common waste system to accept the return of such packaging or parts. In effect this is an environmental protection provision which requires suppliers to establish waste management systems.
Safety monitoring and recall (Section 15) This provision outlines some of the implementation obligations of the Consumer Protection Commission (CPC). It mandates the CPC to promote the development, adoption, and application of industry codes of conduct providing for effective and efficient systems to receive notice of consumer complaints or reports of product failures, defects or hazards and return of any goods because of a failure, defect, or hazard. The CPC is also mandated to monitor the sources of information and analyse the information received with the object of detecting or identifying any previously undetected or unrecognised potential risk to the public from the use of or exposure to harmful goods. The CPC has an obligation to conduct investigations into the nature, causes, extent and degree of the risk to the public and to notify consumers of the nature, causes, extent and degree of the risk pertaining to those goods and recall the goods for repair, replacement, or refund if the goods are unsafe. If the Commission has reasonable grounds to believe that any goods may be unsafe, or that there is a potential risk to the public from the continued use, and the supplier, producer or importer of those goods has not taken any steps required by an applicable code, the Commission by written notice, may investigate or carry out a recall programme on any terms required by the Commission. A supplier, producer or importer affected by a notice issued by the commission may apply to the court to set aside the notice in whole or in part.
Liability on businesses for damage caused by goods (section 16) This section imposes liability on producers, importers, the distributor, retailer, or supplier of unsafe goods for any damages that the products might cause wholly or partly to the consumer. Liability also attaches to this group of people if they failed to give adequate instructions or warnings to the consumers.
The liability imposed by this provision specifically includes the producer of the product, any person who labels a product or puts a distinguishing mark in relation to the product, an importer, a distributer, and retailer of a product is also liable. A supplier of services who also supplies goods as part of the services i.e., “fix and supply” contractor is also subject to this provision. The persons may be jointly and severally liable.
Liability will not arise if the unsafe product characteristic, failure, defect, or hazard that results in harm is due to compliance with a public law. If the characteristic, failure, defect, or hazard of the product did not exist at the time of supply, or if it is attributable to instructions provided by the Client, then liability will not attach for the supplier/producer/manufactures. If a distributor or retailer of a product could not be reasonably expected to discover the unsafe product characteristic, failure, defect, or hazard taking into consideration their role in marketing, then liability would not attach to them.
Defences (Section 17) Section 17 affords businesses defences from liability for damages caused by goods. Liability of a supplier, producer or importer, distributor or retailer of any goods or services does not arise if:
a) the unsafe product characteristic, failure, defect, or hazard that results in harm is wholly attributable to compliance with any public regulation; or
b) the person proceeded against did not at any time supply the product to consumer or
c) the alleged unsafe product characteristic, failure, defect, or hazard did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or
d) was wholly attributable to compliance by that person with instructions provided by the consumer or,
e) it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect, or hazard, having regard to that person’s role in marketing the goods to consumers; or
f) the claim for damages is brought more than three years after injury or death was caused by the product.
This Section does not take away the authority of a court to assess and determine whether any harm has been proven and adequately mitigated or apportion liability among persons who are found to be jointly and severally liable.
In Conclusion
The new CPA gives a comprehensive framework to regulate consumer-supplier interactions. It codifies and governs common law consumer rights and unfair business practices that were previously unregulated.
This article by Melinda Nyakudanga has been the first in a series that is dedicated to raising awareness of the CPA and the protections that it provides consumers, and it focused on consumer rights relating to education and health and safety. The next article will focus on the right to choose, and the right to information.
We believe it is important for all consumers, and businesses to be aware of the CPA, the rights it affords consumers, and the new dimension that this important legislation brings to set a minimum standard for the provision of all goods and services in Zimbabwe.
The Sustainability Practice