Consumer protection act in botswana

CHAPTER 42:07
CONSUMER PROTECTION

ARRANGEMENT OF SECTIONS

PART I
Preliminary

PART II
Functions of Competition and Consumer Authority and Investigating Officers

3. Functions of Authority

PART III
False, Misleading and Deceptive Conduct

5. Prohibition of false or misleading representations

6. Prohibition of certain conduct

8. Gifts, prizes and free offers

9. Pyramid and related schemes

PART IV
Information on Goods and Services

10. Information to be provided in plain and understandable language

11. Display of price of goods and services

12. Product labelling, trade descriptions and reconditioned goods

PART V
Safety and Quality of Goods and Services

14. Consumer’s right to demand quality service

15. Consumer’s right to safe and good quality goods

16. Implied warranty of quality

17. Warranty on repaired goods

18. Liability for damage caused on goods

PART VI
Direct and Mail Order Sales

20. Mail order sales

21. Direct or mail order sales contracts

22. Consumer’s right to cooling-off

PART VII
Contracts

23. Unfair, unreasonable or unjust contract terms

24. Obligation to make consumers aware of certain terms and conditions in contracts

26. Prohibited terms or conditions in contracts

27. Cancellation of contracts

PART VIII
Industry Code of Conduct

28. Industry code of conduct

PART IX
Complaints and Investigations

29. Lodging of complaint

30. Investigations by Authority

31. Power to summon and question

32. Search and seizure

34. Arrangements to discontinue unfair business practice

PART X
Proceedings

36. Institution of proceedings

37. Hearing of complaints by Tribunal

38. General decisions made by Tribunal

39. Urgent provisional orders

40. Declaration of certain business practices to be unlawful

41. Order prohibiting unfair practice

42. Appointment of curator by High Court

PART XI
General Provisions

43. Relationship with sector regulator

44. Confidentiality and exemption from personal liability

45. Excluding or limiting application of Act

48. Repeal of Cap. 42:07

49. Savings and transitional provisions

Act 5, 2018,
S.I. 155, 2019.

An Act to provide for the protection of the interests of consumers by means of investigation, prohibition and control of unfair business practices; and to provide for matters incidental thereto.

[Date of Commencement: 2nd December, 2019]

PART I
Preliminary

This Act may be cited as the Consumer Protection Act.

In this Act, unless the context otherwise requires—

"arrangement" means an arrangement or undertaking negotiated and concluded by the Authority in accordance with section 34;

"Authority" means the Competition and Consumer Authority established under the Competition Act (Cap. 46:09);

"Board" means the Competition and Consumer Board established under the Competition Act (Cap. 46:09);

"business" includes—

(a) offering, supplying or making available any commodity or services for stated consideration; or

(b) soliciting or receiving any investment;

"business practice" includes—

(a) any agreement, accord or undertaking of a business nature;

(b) any scheme, practice or method of trading, including any method of marketing or distribution; or

"commodity" means—

(a) any property, whether corporeal or incorporeal and whether fixed or movable, including any make or brand of commodity; or

(b) any service, excluding service due in terms of a contract of employment;

"consent agreement" means the written agreement between the Authority and the supplier to settle any dispute that may arise;

"consumer" means any person or non-profit making organisation to whom or to which any commodity is offered, supplied or made available, where such person or organisation does not intend to apply the commodity for the purposes of resale, lease, rendering services or the manufacture of goods for gain;

"consumer organisation" means an advocacy group that seeks to protect—

(a) consumers from unfair business practices; or

(b) any other consumer rights that may be set out under any other legislation;

"curator" means a person or body of persons appointed by the High Court under section 42;

"identity card" means an identity card issued to an investigating officer under section 4;

"investigating officer" means an investigating officer appointed under section 4;

"investment" means any money or other property, or any facility intended for use in connection with any venture or scheme for profit, or purported to be so intended;

"merchantable" in relation to a commodity means a commodity that is fit for the purposes for which commodities of that kind are usually purchased, as it is reasonable to expect in light of the relevant circumstances;

"supplier" means the person with whom the consumer concludes a contract for the sale of a commodity or for the purchase of a service, and includes the manufacturer of a commodity;

"Tribunal" means the Competition and Consumer Tribunal Botswana established under section 63 of the Competition Act (Cap. 46:09); and

"unfair business practices" means any business practice which, directly or indirectly, has or is likely to unfairly affect any consumer.

PART II
Functions of Competition and Consumer Authority and Investigating Officers

3. Functions of Authority

(1) The Authority shall be responsible for the administration of this Act.

(2) Without derogating from the generality of subsection (1), the Authority shall—

(a) advise the Minister on agreements, laws and regulations and other measures necessary for the enhancement of consumer protection;

(b) disseminate information and promote awareness of consumer rights and responsibilities amongst consumers and businesses;

(c) formulate and implement consumer education programmes on its own initiative or with the assistance and co-operation of any person, regulator or consumer organisation;

(d) conduct comprehensive surveys on consumer behaviour, consumption patterns, market prices, size and quality of products, business practices and any other related matters, as well as publish reports on the findings of the surveys;

(e) collect and analyse information on harmful and unsafe products, publish reports on the findings and make recommendations on safety standards to the Government;

(f) receive and investigate complaints from consumers and consumer organisations on breaches of the provisions of the Act;

(g) obtain warrants to search, seize and cause the testing, where necessary, of products on the market to ensure that specifications, performance, quality and safety standards, as may be determined by the Authority under section 30, are met;

(h) refer unresolved complaints of breaches of the provisions of this Act arising from unfair business practices to the Tribunal, on behalf of a consumer or a class of consumers;

(i) enter into an agreement with any person or enterprise, or receive undertakings from them and refer such to the Tribunal; and

(j) do all such things as may be necessary for the better carrying out of the provisions of this Act and for the protection of consumers.

(3) Subject to the provisions of this Act, the Authority may permit and consider representations made by any class of consumers and consumer organisation on any matter of consumer protection, and may co-operate with and support the activities carried out by consumer organisations as may be reasonably considered by the Authority.

4. Investigating officers

(1) The Authority may designate such number of persons as investigating officers, as it may deem necessary.

(2) Each investigating officer shall be issued with an identity card, in the prescribed form, and shall have the identity card in his or her possession when performing his or her functions under this Act.

PART III
False, Misleading and Deceptive Conduct

5. Prohibition of false or misleading representations

A supplier shall not, in relation to the marketing of goods or services, by way of words or conduct falsely represent—

(a) that goods are of a particular standard, quality, value, grade, composition, style, model, or that the goods have a particular history or previous use;

(b) that goods are new or reconditioned;

(c) that goods or services have sponsorship, approval, affiliation, performance characteristics, accessories, uses or benefits that they do not have;

(d) that goods or services have been used for a certain period to an extent or in a manner that is materially different from the facts;

(e) that goods or services are available or can be delivered within a specified time;

(f) that an employee, representative or agent of the supplier has the necessary authority to negotiate the terms of an agreement or contract between the supplier and consumer, whilst that employee, representative or agent does not have such authority;

(g) the price of any goods or services;

(h) the availability of facilities for the repair of any goods or spare parts for goods within a specified period;

(i) the place of origin of goods; or

(j) the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

6. Prohibition of certain conduct

(1) A supplier shall not use force, coercion, undue influence, pressure, duress, harassment, unfair tactics or any other similar conduct against a consumer, in connection with—

(a) the marketing of any goods or services;

(b) the supply of goods or services;

(d) the recovery of goods.

(2) In addition to any conduct contemplated in subsection (1), a supplier shall not knowingly take advantage of the fact that a consumer was substantially unable to protect the consumer’s own interests because of physical or mental disability, illiteracy, inability to understand the language of an agreement or contract, or any other similar factor.

7. Bait advertising

(1) A supplier shall not advertise any particular goods or services as being available at a specified price in a manner that may result in consumers being misled or deceived as to the actual availability of those goods or services from that supplier, at the advertised price.

(2) A supplier who advertises goods or services with the intention not to supply the reasonably expected quantity of the goods or services to meet public demand, shall be guilty of an offence and shall be liable upon conviction, to a fine not exceeding P50 000 or to imprisonment for a term not exceeding three years, or to both.

(3) Subject to the provisions of subsection (2), a supplier shall disclose in an advertisement a limitation in the quantity of goods or services in immediate conjunction with the advertised goods or services.

(4) A supplier who places an advertisement for goods or services shall be required to include the duration on which the goods or services will be available.

(5) Where a supplier does not specify the period for which the goods or services advertised will be available, the goods or services shall be deemed to be available for one month from the date of the advertisement.

(6) Where a supplier and a consumer have entered into a contract for the supply of goods or services on the basis of an advertisement, and such goods or services are not availed as advertised, the consumer shall have the right to cancel the contract.

(7) Where a contract is cancelled in accordance with subsection (6), the supplier shall refund the consumer the amount paid for the goods or services.

(8) A supplier who engages in any misleading or deceptive advertising commits an offence and shall be liable upon conviction, to a fine not exceeding P50 000 or to imprisonment for a term not exceeding three years, or to both.

(9) The Authority shall, where a supplier engages in any misleading or deceptive advertising—

(a) order the supplier to stop the advertisement immediately by removing the misleading advertisement; and

(b) order the supplier to publish a corrected version of the advertisement in the medium that carried the misleading information.

(10) Where a supplier under subsection (9) fails to comply, such supplier commits an offence and shall be liable to an offence under subsection (8).

(11) The Authority shall pursue any voluntary undertaking or assurance of compliance from traders, and enforce undertaking by such traders where there is non-compliance, with subsection (9).

8. Gifts, prizes and free offers

(1) A supplier shall not offer any gift, prize or other free item with the intention of not providing such gift, prize or other free item in the manner it is offered.

(2) A supplier shall not increase the purchase price of goods, or reduce the quantity or quality of goods or services, on the basis of gifts, prizes or other free items offered for acquiring the goods or services.

9. Pyramid and related schemes

(1) A person shall not directly or indirectly promote, or knowingly join, enter or participate, or cause any other person to promote, join, enter or participate in—

(a) a pyramid scheme;

(b) a multiplication scheme;

(d) any other scheme declared as such by the Minister in terms of subsection (3).

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