As consumers in South Africa we sign documents every day but do we know what we are signing and do we insist that we receive a copy. It is just plain common sense that if you put your signature to something (we have previously discussed the difference between a signature and an autograph) you should have a record of it.
Obviously for you to have a copy of a document it has to be a written agreement and not a verbal one. S50 of the Consumer Protection Act notes that the Minister may prescribe categories of consumer agreements that are required to be in writing. Further it notes that if a consumer agreement between a supplier and a consumer is in writing, whether as required by this Act or voluntarily it applies irrespective of whether or not the consumer signs the agreement. The supplier must provide the consumer with a free copy, or free electronic access to a copy, of the terms and conditions of that agreement, which must satisfy the requirements of section 22 and set out an itemised break-down of the consumer’s financial obligations under such agreement. S22 of the CPA deals with the consumers’ right to information in plain and understandable language. There are a number of things to note here.
An agreement to sell immovable property (land, house or building) must be in writing in terms of the Alienation of Land Act. Suretyship agreements, credit agreements, antenuptial (marriage) contracts and leases over ten years have to be in writing. It is not clear to the author if any requirements in terms of the CPA have been made by the Minister.
If an agreement is unsigned what use is that? Terms and conditions change all the time, especially if they are only posted on a website. As an example, Supersonic fibre used to allow for payments other than by debit order. They then changed it to all payments had to be by debit order. But if you were an existing customer, you could still pay by EFT in terms of your existing agreement.
In terms of the National Credit Act [S64] the producer of a document that is required to be delivered to a consumer in terms of this Act must provide that document in the prescribed form, if any, for that document; or in plain language, if no form has been prescribed.
S65 of the NCA talks to the fact that every document that is required to be delivered to a consumer in terms of this Act must either be delivered in a manner that is prescribed or in a manner that is the choice of the consumer. Your choice – very important.
If you do not have a copy of your documents in relation to banking services the Code of Banking Practice notes the following;
[6.8] Copies of Documents – At your request, and within legal and practical document retention frameworks, we will provide you with a copy of any of the following documents we have relating to a banking service you have or have had with including: ∙ a credit agreement (including Terms and Conditions, standard fees and charges and interest rates) or other contract; ∙ any mortgage or other security document; ∙ a statement of account; or ∙ a notice or letter of demand that has been issued to you.
We will give you a copy of the document: ∙ within 10 business days, if the original came into existence within 1 year of your request; ∙ within 20 business days, if the original came into existence between 1 and 3 years before your request; ∙ otherwise within a reasonable time or as required by legislation applicable to certain documents. 6.8.3 We may charge you a reasonable fee for providing you with a copy of a document, unless it is a copy of a credit agreement or document required by the National credit Act (NCA) in which case the original or first replacement copy of such a document will be free of charge, while fees for any further copies may be charged as provided for by regulation.
So, in summary, notwithstanding the CPA please ensure that you get copies of your agreements and please make sure that these are documents signed by both you and the other party where appropriate. Blank copies just do not cut it.
