In each instalment in this series, Advocate Louis Nel discusses aspects of the Consumer Protection Act (CPA) that affect the relationship between travel suppliers and consumers.
SECTION 48 of the
Consumer Protection Act
places unreasonable or
unjust contract terms under
the spotlight. This includes
the sales process as well
as any waivers which shift
liability to the consumer.
These aspects of the
relationship between the
consumer and travel agent
or supplier may be seen
as unfair, unreasonable or
unjust if they are excessively
one-sided or presented in a
misleading way. For example,
a non-refundable deposit
could be seen to be onesided,
but it is not excessive
enough to be deemed unfair,
provided that it is carefully
explained, acknowledged
with a signature by the client
and meets the conditions
set out in Section 17, which
deals with the consumer’s
right to cancel advance
reservation, booking or order
(for example, the period
of notice given and the
possibility of the supplier
reselling).
To ensure that you as an
agent don’t fall foul of this
Section, it is important to
also understand Section 49,
which deals with the notice
required for certain terms
and conditions. Basically,
this Section stipulates
that certain aspects of
the transaction must be
brought to the attention of
the consumer, including the
following:
Clauses that in any way
limit the liability of the
supplier or any other
person.
Clauses that present the
acceptance of risk or
liability by the consumer
(particularly a risk or
liability that the consumer
could not possibly be
expected to be aware of).
These aspects of the
transaction must be
brought to the attention
of the consumer in writing
as soon as a contract is
entered into or payment
made and in a way that will
attract the attention of an
‘ordinarily alert consumer’.
It’s important to note that
this can’t be done at the
last minute or in a rush.
The consumer must have
an adequate opportunity to
receive and understand the
provisions of the transaction.
What to do
Objectively assess and
amend (where required)
the waiver and traveller’s
acceptance of the traveller’s
obligations in your booking
form and T&Cs – look
especially at clauses that
deal with airline provisions,
passports, visas, health
and liability.
Ensure that your and the
supplier’s cancellation,
refund and non-refundable
deposit clauses are brought
to the attention of the
traveller at the earliest
possible opportunity.
