Property transactions and the
Consumer Protection Act

Aim and content

The aim of the notes is to focus on the application of the Consumer Protection Act to transactions involving immovable property, particularly sales transactions, auctions and lease agreements.

The Consumer Protection Act 68 of 2008 came into operation on 1 April 2011 and brought with it a fundamental change in the South African consumer market, tipping the scales markedly in favour of the consumer.

The notes will seek to inform property practitioners about the very substantial impact of the Act on commercial transactions of all kinds, and specifically on the marketing of immovable property and transactions with such property.


Topics

The first part consists of a brief overview of the most important provisions of the Act; it serves as an introduction and supplies the background material that will make it easier to grasp the second part. The first part is organised as follows:

  1. When is the Act applicable to an immovable property transaction?
  2. How should marketing methods be adapted to meet the requirements of the Act?
  3. When can a consumer exercise his ‘cooling-off’ right and what is ‘direct marketing?
  4. What does the Act prescribe when referring to ‘fair and honest dealings’ with the consumer?
  5. Which provisions may not be included in an agreement?
  6. What powers does the court have to ‘rewrite’ agreements?
  7. How should standard contracts be adapted to comply with the CPA – sales agreements, leases and mandates?
  8. Defects and voetstoots: Who picks up the tab? The seller, agent, auctioneer or developer?
  9. What sanctions do businesses face for non compliance?


Compiled by

Maryna Botha is an admitted attorney, notary and conveyancer practising in Cape Town. She completed her articles with Van Der Spuy & Partners in Cape Town in 1997 and then practised with De Vries Shields Chiat. In 2005 she joined STBB Smith Tabata Buchanan Boyes’ private training initiative, the Igqwetha Training Academy, as Training and Operations Manager.

She is currently an executive consultant with both STBB Smith Tabata Buchanan Boyes and Kilbourn & Botha, for whom she offers training courses in various areas of the law, including Property Law, Loan Securitisation, Insolvency & the National Credit Act, as well as Consumer Protection Law. Since 2007, she has also presented training courses on behalf of the Law Society of South Africa.

She publishes regular updates and opinions, including STBB’s Property Law Service (a weekly update service) and LexisNexis’s quarterly Property Law Update. She also contributed the precedent to the JUTA publication, The ABC of Conveyancing, and is currently tasked with revising Butterworths Forms and Precedents (Conveyancing).

Maryna obtained her BA and LLB degrees at the University of Stellenbosch and her LLM degree from UNISA. She is currently studying towards her LLD.

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