The Consumer Protection Bill, currently before the National Assembly`s Trade and Industry portfolio committee, contains an ambiguity that could cause market uncertainty and increase the cost of ICT to consumers.
Michalsons ICT lawyer Mike Silber says the Department of Trade and Industry is this week responding to a public hearing held on the Bill last week, where this concern was raised.
Silber says overall the Bill is a necessary and positive piece of legislation, and the result of a "lengthy and considered process". But he is concerned that the public consultation process is moving quickly and there is a rush in Parliament and government to enact the law.
Silber was among those who raised questions about the Bill`s introduction of strict liability into South African law. "I`m not crazy about strict liability; we`ve not had it in the country up to now, it`s a North American invention and unnecessary.
"The one thing we know with strict liability is that suppliers and manufacturers will take it on as a business risk. They will insure against it, those premiums are going to be hefty, and the cost will be passed on to the consumer," says Silber.
"The main beneficiary will be the insurance industry, which is already rubbing its hands in glee. We raised our concerns; others raised their concerns. But these were given, in my view, very little consideration."
Silber says, should the wording of one part of the strict liability chapter stand, real uncertainty will develop regarding liability for pure economic loss.
"I think the department agrees there is an error, but it is a question of interpretation and I don`t think they`ve given the implications enough consideration."
Silber says the concern is easy to address. "They should insert a few words to clarify meaning, rather than leaving language that one group or court can interpret one way and others another.
"I`m willing to concede my interpretation may be wrong, but I think the wording is too open to interpretation and it can do with improvement." He adds the concern the section seeks to address is already taken care of by service level agreements and the like.
Related stories:
Public response to Companies Bill elicits further changes
Draft law will make ICT expensive
IT will bring change to law profession
Share