The Common Market for Eastern and Southern Africa (“COMESA”) is an organisation established amongst a number of African countries (“the Member States”) with the aim to strengthen and achieve convergence of their economies through accomplishing a full market regional integration of Eastern and Southern Africa (“the Common Market”). It consists of 19 Member States which include the Republic of Burundi, Comoros, Democratic Republic of Congo, Republic of Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe.
COMESA has been established to primarily regulate competition law amongst the different economies of its Member States and to ensure that a fair and effective regional competition law framework exists. However, COMESA also has powers regarding consumer protection matters and promotes transparency among economic operators in the region. COMESA has put together to documents based on the provisions of Article 55 of the COMESA Treaty, namely the COMESA Regulations and the COMESA Rules. The Regulations and Rules were put into operation on 14of January 2013.
For purposes of this discussion we will consider the consumer protection provisions and their impact on persons who conduct business in COMESA Member States.
The COMESA Competition Regulations establish the COMESA Competition Commission (“CCC”). The CCC enjoys international legal personality and has capacity to, inter alia perform its functions under the Treaty in the territory of the Member States. The CCC is also responsible for developing and disseminating information about the competition policy and consumer protection policy. The Regulations provide for penalties that can be imposed on someone who contravenes or fails to comply with the COMESA Regulations. The CCC can also impose a fine, where no penalty is provided.
The key aspects of consumer protection dealt with in the COMESA Regulations are discussed below.
- False or Misleading Representation
A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services. A person may not:
- falsely represent the standard, quality, value, grade or composition of goods, or falsely represent that they are new, when they are not;
- falsely represent as having a particular sponsorship, approval, performance characteristics, accessories, uses or benefits when this is not the case;
- make false or misleading representations with respect to prices;
- claim a false place of origin; or
- represent that a particular consumer has agreed to acquire goods or services when it has not.
- Unconscionable conduct
- In consumer transactions and in business transactions, a supplier or a business shall not engage in unconscionable conduct when selling goods or services to a consumer.
In considering whether behaviour is unconscionable, the Commission will examine the following:
- the relative strengths of the bargaining positions of the supplier and the consumer;
- whether, as a result of conduct by the supplier, the consumer was required to comply with conditions not reasonably necessary for the protection of the legitimate interests of the supplier;
- whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;
- whether any influence or pressure or any unfair tactics were used against the consumer or a person acting on behalf of the consumers; and
- the amount for which, the consumer could have bought identical or equivalent goods or services in similar circumstances from another supplier.
- Product liability and Safety
- A supplier must not supply goods for public use if, for example, they do not comply with prescribed consumer product safety standards.
- The consumer is considered to have suffered loss or damage when the goods do not comply with a prescribed consumer product safety standard.
- A supplier must only supply goods for use by consumers if they comply with the required consumer product information standards. Consumer product information standards may include such requirements as are reasonably necessary to give those using the goods information as to the quality, nature, quantity or value of the goods.
- Goods to consumer must be taken off the market if the Commission has decided that the goods are goods of a kind which will or may cause injury and do not comply with prescribed consumer product safety standards or the supplying of goods constitutes a contravention of the COMESA Regulations, provided that a prohibition against the supply of such goods is already in force.
Any persons may bring before the attention of the CCC potential breaches of the law. The CCC will then investigate the complaints, in conjunction with the relevant authorities of the Member States, if any. Member States are encouraged to establish their own authorities with the powers and expertise to work together with the COMESA Competition Commission.
As a penalty for contravening the COMESA Regulations Article 8 provides, inter alia that an order of compensation can be made to the persons affected or a fine be imposed for breaching the provisions of the Regulations. In terms of COMESA Rule 11 (Infringement and Penalties) the Member States undertake to introduce legislation, where such legislation does not already exist, making such provision as may be necessary for penalties to be imposed against persons in their own territories.
South Africa is not a Member State to COMESA and has enacted its own national laws to regulate both competition and consumer protection matters. It is still vital for persons conducting business and entering into transactions within the COMESA Member States or Common Market to comply with the provisions of the COMESA Regulations. Persons trading or conducting business in the Common Market should take cognisance of how the Regulations of COMESA will apply to them and whether any provision possibly directly affects the running of their business.