When considering the implications of section 69(d) of the Consumer Protection Act (the Act), understanding its’ meaning is important for any disgruntled consumer seeking to enforce his rights in the court of law.

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In terms of section 69 of the Consumer Protection Act:

“A [consumer] may seek to enforce any right in terms of this Act or in terms of a transaction or agreement, or otherwise resolve any dispute with a supplier, by—

(a) referring the matter directly to the Tribunal, if such a direct referral is permitted by this Act in the case of the particular dispute;

(b) referring the matter to the applicable ombud with jurisdiction, if the supplier is subject to the jurisdiction of any such ombud;

(c) if the matter does not concern a supplier contemplated in paragraph (b)—

(i) referring the matter to the applicable industry ombud, accredited in terms of section 82(6), if the supplier is subject to any such ombud; or

(ii) applying to the consumer court of the province with jurisdiction over the matter, if there is such a consumer court, subject to the law establishing or governing that consumer court;

(iii) referring the matter to another alternative dispute resolution agent contemplated in section 70; or

(iv) filing a complaint with the Commission in accordance with section 71; or

(d) approaching a court with jurisdiction over the matter, if all other remedies available to that person in terms of national legislation have been exhausted.”

Simply put, you can only enforce your consumer protection rights upon the exhaustion of all other remedies available in terms of the consumer protection.

Taking the plain reading of section 69(d) to its extreme could possibly entail that a consumer would need to go through each and every remedy before going to court. This interpretation makes vindicating the Act rights a rarity before the court of law because of all the procedural hurdles a consumer has to overcome before having their day in court.

The courts approach to section 69(d)

In Motus Corporation (Pty) Ltd and Another v Wentzel (Case no 1272/2019) [2021] ZASCA 40 (13 April 2021), Renault relied on section 69(d) to argue that the consumer’s application against it was premature as they failed to comply with the provisions of the section. The court acknowledged the procedural difficulties and conflicting judgments in the high court caused by the aforementioned provision. The Court entertained the idea that the remedies in section 69(d) should be explored in a hierarchical order. The Supreme Court of Appeal noted that requiring disgruntled customers to pursue other remedies under the section before approaching the high court has resulted in a customer being non-suited. The Supreme Court of Appeal, however, failed to provide clarity on the true legal position, as the need to address section 69 (d) fell away in argument due to the senior counsel, who appeared on behalf of Renault, focused on the substance of the matter.

In Van Niekerk v First Rand Bank Limited (065/2024) [2025] ZASCA 187 (10 December 2025), a Bank instituted an action against a consumer for damages and an order cancelling the contract between itself and the consumer. When the consumer relied upon the Act to argue that the bank was the Supplier as envisaged by the Act, the Bank used the section 69 (d) procedural defence to argue that the consumer could not rely on the Act as she had not exhausted all of the remedies available thereof. The court held that section 69 (d) does not find application in the case because the consumer was the defending the claim brought by the Bank against itself, as such the consumer was entitled to rely on the Act in its counter claim, and that any contrary interpretation would fall short of the Act and the Constitution, specifically section 34 which talks about the right to access an appropriate forum. However, as far as clarifying the position pertaining to section 69 (d), the Supreme Court of Appeal held that ‘it [was] therefore not necessary to seek to resolve the position concerning [s 69 (d)] in these proceedings.

Better to be sued by a supplier

If a disgruntled consumer is sued by its supplier, it does not need to deal with section 69(d) in raising a counterclaim against the supplier.

Otherwise, a disgruntled consumer has a better chance relying on the common law remedies such as the aedilitian action which are available to the buyer where there are latent defects. However, this action will not usually be applicable where there is a voetstoots clause. A voetstoots clause is essentially a disclaimer that alerts the consumer that they are purchasing the product ‘as is’.  Another shortfall of these remedies, are that they cannot recover damages. As such, only a refund or reduction in price is possible.

Where latent goods were sold with a warranty, actio empti is a remedy that allows for the recovery of damages and cancellation of contract, if the goods bought were severely defective.

The extensive consumer protection provided by the Act against unconscionable voetstoots clauses and other such provisions remain inhibited by section 69 (d) and its procedural constraints. And many consumers who thought otherwise, found themselves unsuited.

In JOROY 4440 CC v POTGIETER AND ANOTHER NNO 2016 (3) SA 465 (FB), the consumer brought an application for a refund of the full purchase price of a motor vehicle that the applicant close corporation bought from the respondent trust. It was disputed that the basis for the applicant's claim is under the CPA and, more specifically, the provisions of ss 55 and 56 dealing with the consumer's right to good-quality goods. The court did not make a finding on the merits of the application and therefore the applicant was essentially ordered to utilise any of the dispute resolution mechanisms available in terms of the CPA. The same outcome ensued in Nzwana v Dukes Motors 2019 JDR 1624 (ECG).

Conclusion

The legal position as it stands gives two avenues each with its own give and take. The common law position on the one hand, allows disgruntled consumers to take their suppliers to court. However, the position can be contracted away through disclaimers and voetstoots clauses. The Act, on the other hand, has been promulgated with the object of addressing the damage left by the current legislation and the common law, which is harder if not illegal, to contract out its applicability. However, it demands patience from disgruntled consumers, and it is unclear as to how section 69(d) should be handled by these consumers, exposing them to wasted costs in an instance where a judge decides to dismiss an application because an avenue already exists and the claim is premature as such.

An intervention by the legislature is needed to clarify the position of section 69 (d) as the Act is currently paralysed by its own provisions. As far as disgruntled consumers are concerned who bought a product and need timeous relief without the back and forth, depending on the nature of the contract and its voetstoots clauses, the common law remains more optimum.

The best legal position for a disgruntled consumer as far as consumer protection law is concerned is, therefore, being sued by its supplier.

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