The franchising business model is an attractive option for both franchisors and franchisees. Franchisors grant the rights to use their intellectual property and business system to franchisees for a fee. Franchisees buy into the tried-and-tested business system, receive ongoing training and support and operate under an established trade mark or trade name. Fundamental characteristics of the franchise relationship include: the contractual nature thereof, the use of the franchisor‘s intellectual property by the franchisee, operating the franchise outlet according to the franchisor‘s business system, providing training and support to the franchisee, and paying for the use of the franchisor‘s intellectual property and business system. These characteristics have resulted in inherent tensions between franchisors and franchisees, which arise by virtue of, inter alia, the control exercised by the franchisor over the use of its intellectual property, franchisor opportunism, poor franchisee selection, franchisee free-riding, inadequate training and support, or the sunk investments made by the franchisee. The franchisor and franchisee generally use a franchise agreement to regulate their relationship. However, the franchise agreement itself can also lead to conflict between the parties, such as that arising from poor drafted clauses relating to territorial rights, renewal, payment, termination, restraint of trade, or confidentiality. The franchise agreement is typically drafted in the standard-form, resulting in franchisees faced with unequal bargaining power. The common law of contract is based on principles of freedom of contract and sanctity of contract and is, therefore, limited in its ability to resolve the tensions between the parties. Various models for regulating the franchising industry can be adopted, for example, self-regulation, statutory regulation, or co-regulation. Australia and Canada have adopted the statutory model by enacting franchise-specific legislation and New Zealand has followed the self-regulation model with no legislation regulating its franchising industry. South Africa did not formally regulate the franchise relationship through legislation until the enactment of its consumer protection legislation, the Consumer Protection Act 68 of 2008 (CPA), which includes a franchisee within the definition of consumer. This entails that all franchisees enjoy the protection of the CPA and all franchise agreements must comply with the provisions of the CPA. The South African economy is unique in that it is burdened by the social ills of its discriminatory past, such as high levels of unemployment, illiteracy and inequality. The country is faced with a slow growing economy with little development and promotion of entrepreneurship among small businesses. Despite the burdensome economy within which the franchising industry is required to operate, the industry‘s contribution to the Gross Domestic Product (GDP) of the country has remained stable. The South African government has identified the franchising industry as an opportunity for job creation, economic empowerment and promotion of entrepreneurship. The aim of the study is to ascertain whether the CPA is the correct legislative vehicle to regulate the franchise relationship, while enhancing the growth and development of the franchising industry. This thesis concludes that the introduction of fundamental consumer rights and rights of redress for franchisees through the provisions of the CPA has contributed to, or assisted in, the removal of the tensions inherent in the franchise relationship. In particular, the CPA has adequately addressed the lack of formal regulation of the franchise relationship through its disclosure requirements and its regulations. The thesis also proposes amendments to some of the CPA regulations, which will further enhance the disclosure requirements, and aid in curtailing the conflict caused by the terms of the franchise agreement. The thesis further proposes that the application of the CPA to franchise agreements should be limited to small, inexperienced or unsophisticated franchisees that are in need of the protection. An essential premise is that the CPA aims to protect ordinary consumers, including juristic persons, in day-to-day transactions (up to the threshold amount), to avoid suppliers taking advantage of them. Larger, more sophisticated or experienced franchisees, with stronger bargaining power and access to legal advice, do not necessarily require the protection of the CPA. The criteria relating to the size of class of micro-, very small and small enterprises, but not medium enterprises, within the different sectors or sub-sectors in terms of the National Small Enterprises Act, 102 of 1996, should be considered and used as a guide to determine whether the CPA applies to a franchise agreement. The development, growth and success of the franchising industry depends on the education of prospective franchisees wanting to adopt the franchising business model and invest in the industry. The CPA does not recognise or promote the roles of the various stakeholders (franchisors, franchisees and the government) with regard to the provision of education, training, ongoing support and assistance to prospective franchisees. This thesis proposes that mechanisms to enhance the education of prospective franchisees should be promoted, such as tandem franchising, obtaining advice undertakings from prospective franchisees before concluding franchise agreements, and increasing the role of the Consumer Commission in providing franchising education.

Businesses communicate a wide variety of messages to diverse audiences using a number of different communication types and channels daily. For example, business communication includes business reports, documents (booklets, leaflets, and official communiqués), notices, agreements, web copy and advertisements that are produced continually to address a variety of business communication needs for a variety of audiences. Although written business communication has a significant impact on customer satisfaction and consumer attitude which, in turn, affects consumer behaviour positively or negatively, there is a lack of research investigating the knowledge and application of plain language in business communication. Many studies were found to be related to communication and language, however, studies about plain language use were less prevalent. Therefore, this study aimed to investigate the awareness of the plain language regulations stipulated in the South African Consumer Protection Act (CPA) 68 of 2008 (2009). The application of these plain language principles within businesses in the Port Elizabeth Metropole, with specific reference to its use in written business communication was also investigated. The study also aimed to identify plain language best practices and constraints resulting from plain language application or non-application within the selected organisations. The research focused attention on the impact of business communication on customer satisfaction, consumer attitude and, ultimately, consumer behaviour as well as the need for plain language use in written business communication practices to ensure effective and fair (ethical) communication. A comprehensive literature review was conducted on communication, communication theory and consumer behaviour, as well as on plain language principles which might add to the effectiveness of organisations’ written business communication, to provide a theoretical foundation for the study. The study’s research methodology was approached from a phenomenological (descriptive and interpretive), and somewhat positivistic perspective, utilising qualitative and limited quantitative measures to obtain data. For this reason, three managers from three respective organisations within the Port Elizabeth Metropole were interviewed and asked to complete a rating-scale survey to obtain insight on the written business communication practices of these organisations. A content analysis of documents supplied by the participating organisations were also reviewed to provide commentary on the plain language application in each organisation. Furthermore, Section 2 of the South African CPA 68 of 2008 (2009) was also reviewed to measure and comment on the application of plain language in these organisations. Based on the data analysis, it was evident that organisations in the Port Elizabeth Metropole were aware of plain language and the plain language regulations stipulated in the South African CPA 68 of 2008 (2009), but that they were not certain what the regulations entailed exactly. Furthermore, plain language principles were applied in the participating organisations, however, complications and areas for possible improvement were identified in the data. From the study’s findings, various recommendations were made that could assist the organisations to improve their organisations’ plain language application. These recommendations included, for example, appointing plain language champions to monitor plain language application in the organisation, as well as assessing language competence of staff and training them to improve their language competencies. Recommendations for future research suggested that future studies needed to include a larger research sample, a more diverse sample population to include consumers and a broader industrial demographic. In addition, future studies could attempt to investigate communication barriers that inhibit or challenge comprehension in consumer communication.

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-03-14T17:42:36Z No. of bitstreams: 1 Bruna Simões França.pdf: 1589211 bytes, checksum: 1dad341b5fa496abdfccbc2de400367a (MD5) / Made available in DSpace on 2018-03-14T17:42:37Z (GMT). No. of bitstreams: 1 Bruna Simões França.pdf: 1589211 bytes, checksum: 1dad341b5fa496abdfccbc2de400367a (MD5) Previous issue date: 2018-02-20 / The propose of this work is to analyze the right that the right that consumers have to be oriented and informed and the consequences of this right is not observed by the financial institutions especially in loan contracts and considering the vulnerability of the consumers. We will begin doing an explanation of the legal regime of the financial institutions on Brazilian Constitution, the Central Bank and the Monetary Authority, as well as the possibility for self-regulation. Then we will analyze the legal protection of the consumer in Brazil, with main focus on the information right. We will study the concept of good faith in legal terms and the responsibility of financial institutions in abusive loan contracts regarding consumers. There will be a highlight on de vulnerability of the consumer and de concept of consumers that are more vulnerable than others. This paper intends to demonstrate that loan contracts sign with disregard of the information right by the financial institution to not oblige the consumer. As a consequence of this violation, the contract should be considered as not valid and the parties involved must return to the previously situation / O objetivo deste trabalho será analisar o papel do direito à informação do consumidor e do dever de educação do fornecedor e a responsabilidade jurídica que as instituições financeiras possuem nos contratos de mútuo bancário no direito brasileiro, especialmente considerando a vulnerabilidade do consumidor. Iniciaremos fazendo uma explanação do regime jurídico das instituições financeiras na Constituição Federal, no Brasil pelo Banco Central e Conselho Monetário Nacional, bem como a possibilidade de autorregulação de suas atividades. Após, trataremos da proteção jurídica do consumidor, especialmente o direito à informação. Será analisado ainda o conceito de boa-fé objetiva, bem como a responsabilidade dos fornecedores nos contratos de mútuo no que tange aos consumidores. Neste ponto, serão destacados a vulnerabilidade do consumidor e o conceito de consumidores hipervulneráveis. Este trabalho pretende demonstrar que os contratos de mútuo celebrados com desrespeito ao dever de informação por parte do fornecedor não vinculam o consumidor. Como consequência desta violação, o contrato deverá ser considerado nulo e, assim, as partes deverão voltar ao status quo anterior à celebração do contrato

Submitted in fulfillment of the requirements of the Master’s Degree in Marketing, Durban University of Technology, 2017. / As a result of weaker bargaining power, consumers are often exploited or treated unfairly in the business arena. Whilst consumer abuse is a global problem, South African consumers are more vulnerable due to various socio-economic conditions that affect their ability to negotiate equally in the marketplace. Factors such as poverty and illiteracy contribute to consumer abuse and is perpetuated by the discrimination which was inherent in the apartheid era. Accordingly, the Consumer Protection Act, 2008 (CPA) was promulgated to promote the respect for consumer rights, create awareness, enhance consumer protection and eliminate unfair and dishonest business practices which were prevalent at the time. This study aims to investigate the implications of consumer rights for service delivery within the retail sector. The main objective of this research was to explore the levels of awareness of consumer rights and to identify consumers’ expectations and perceptions of service delivery in relation to the CPA. The research design was quantitative in nature. A questionnaire was designed to assess the levels of awareness of rights and consumers’ expectations and perceptions of the service delivered by retailers, in relation to the service quality dimensions. Using convenience sampling, data was obtained from 337 respondents in the greater Durban area. Data was analysed using SPSS version 24.0 and interpreted using descriptive and inferential statistics. The findings of the gap analysis revealed that the respondents’ perceptions of service quality was consistently lower than their expectations, in respect of several dimensions of service quality. These negative gaps indicate that the level of the delivered service had fallen below the respondents’ expectations of service quality amongst retailers. This implies that respondents’ were dissatisfied with business compliance with provisions of the CPA. Businesses are hence encouraged to take steps to ensure legal compliance, thereby enhancing customer satisfaction and attaining higher levels of service excellence. / M

LL.M. / Despite payment cards being of a fairly recent origin,1 these instruments of payment play an increasingly significant role in commerce. With reference to credit cards, Cornelius already in 2003 stated: “They fulfil various functions that are increasingly important at a time that ecommerce is taking off at a tremendous pace.”2 Similarly criminals continuously use more inventive and technologically advanced methods to commit fraud, including counterfeit card fraud. Is the South African criminal law, however, keeping up? The aim of this study is to investigate whether the various activities which form part of the criminal business value chain relating to counterfeit card fraud, with specific reference to bank payment cards, are sufficiently criminalised in South Africa or whether the inability of our criminal law to address the challenges posed by this crime type necessitates the introduction of further legislation. In the first part of the dissertation the South African common and statutory criminal law is investigated in some depth to establish the applicability thereof on the activities forming part of the criminal business value chain relevant to counterfeit card fraud. The appropriateness of certain statutory provisions is questioned and recommendations are made to amend current legislation. An argument is also advanced for further development of the common-law offence of theft to include identity theft and the unlawful copying and subsequent use of data. Brief reference is made to the international situation. Chapter 2 is an introduction to bank payment card fraud in South Africa focusing on the most prevalent forms thereof being card-not-present fraud and counterfeit card fraud. Reference is made to the manner in which offences related to counterfeit card fraud are currently approached in our criminal courts and the limited impact prosecutions has on the prevalence of this fraud type.

L'émergence du droit de la consommation en tant que discipline autonome, peut être analysée dans les effets qu'elle a produits dans le discours juridique dans sa globalité, de diverses manières. Lors des célébrations de l’anniversaire de la signature du Traité de Rome qui a jeté les bases de l'Union Européenne actuelle, on doit souligner que « L'UE a largement amélioré la vie quotidienne de ses citoyens». Qu'en est-il plus précisément de la protection des consommateurs? Sans l’Europe, le droit de la consommation ne se serait pas développé aussi solidement qu'il ne l’a fait aux cours des quarante dernières années. Le droit européen de la consommation trouve sa source essentielle dans le programme préliminaire d'avril 1975 pour une politique de protection et d’information des consommateurs qui a énoncé cinq droits fondamentaux : droit à la protection de la santé et de la sécurité, droit à la protection des intérêts économiques des consommateurs, droit à la réparation des dommages, droit à l’information et à l'éducation, droit à la représentation. Le E-commerce (achat et vente de services et produits via Internet) a transformé notre manière de consommer, offrant aux consommateurs plus de choix qu'auparavant. Mais il soulève également de nouveaux problèmes, qui doivent être réglés. Les conditions de protection des consommateurs différent encore beaucoup d’un pays à l'autre. Si dans certains pays, 76% des consommateurs déclarent se sentir suffisamment protégés par les mesures existantes, dans d'autres ce chiffre tombe à 28%. Or, depuis qu’ils ont rejoint l’Union européenne, les pays de l'Est de l'Europe, généralement situés assez bas sur l’échelle de satisfaction, ont vu ces pourcentages s'améliorer de façon importante. / In regulatory jurisdictions that provide for this consumer protection is a group of laws and organizations designed to ensure the rights of consumers, as well as fair trade, competition, and accurate information in the marketplace. The laws are designed to prevent the businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors. Furthermore the importance of the consumer protection is to safeguard the consumer from exploitation. In the absence of consumer protection, consumers were exploited in many ways for example sale of unsafe products, adulteration and hoarding of goods, using wrong weights and measures, charging excessive prices and sale of inferior quality goods. Through various Consumer Protection Acts, business organizations are under pressure to keep away from exploiting consumers. Consumer protection law is considered an area of law that regulates private law relationships between individual consumers and the businesses that sell those goods and services. In 2018, the European Commission is proposing a New Deal for Consumers to ensure that all European consumers fully benefit from their rights under Union law. A study on transparency in online platforms, also published, supports the New Deal’s proposals on online market places. Finally, the different theories show the sophisticated aspects of the French consumer law which has been developing since the Code Napoleon.

MPM / Oliver Tambo Institute of Governance and Policy Studies

This dissertation considers the possible impact certain requirements of the National Credit Act 34 of 2005 (hereafter NCA) has on reckless credit lending by credit providers. The dissertation will identify problem areas created by the provisions of the NCA and the impact thereof on security or partial performances linked to the credit agreement. “Reckless credit lending” used to be a new terminology introduced in the credit market to increase consumer spending, but it is currently a well-known practice in the credit industry. The NCA aims at protecting consumers, especially against present everincreasing reckless-credit practices. However, certain provisions relating to reckless credit are mostly ambiguous and vague. The NCA is silent on the development and implementation of guidelines and policies relating to the prevention of reckless credit and the consequences of such an order on security and/or performances (whether there was partial or full performance). This study will discuss the prevention and consequence of reckless credit by referring to the NCA, articles written by various authors, as well as court decisions where related concerns were addresses by the judges concerned with this issue. Although the provisions stipulated in the amended NCA improve the position of the consumer in the credit market, the legislature should have drafted certain applicable provisions with more care and detail. A more detailed draft could circumvent vagueness in particular areas of concern. / Private Law / LL. M.

In South Africa compliance with competition law has become a major concern for firms that achieve and maintain certain levels of success and growth in the market, as their actions are often a source of complaints and litigation by rivals and competition authorities. With substantial financial penalties often levied against them for a variety of conduct deemed to constitute an abuse of their market position, dominant firms must constantly be aware of the likely impact of their business strategies and actions on both rivals and consumers. What were once thought to be normal and economically sound business practices and decisions, such as cutting prices to attract customers, have now acquired new meanings, with devastating consequences for dominant firms. So, are dominant firms under attack from competition law? In this study I aim to determine this. I track the historical development of competition law in three jurisdictions: South Africa, America, and the EU, with the aim of identifying traces, if any, of hostility towards dominant firms in the origins of competition law. I further investigate whether the formulation and enforcement of certain aspects of existing abuse of dominance provisions manifest as hostility towards dominant firms. While acknowledging the important role that competition law enforcement plays in promoting competition and enhancing consumer welfare, I conclude that significant unjustified economic and legal prejudice is suffered by dominant firms as a result of the way in which certain abuse of dominance provisions have been formulated and applied. I also offer appropriate recommendations. / Mercantile Law / LL. D.

The thesis examines the enforcement of consumer rights in South Africa, and is set against the backdrop of the underlying principles and theories on the enforcement of consumer protection law. It then analyses the various forms of consumer protection law enforcement mechanisms that were in place prior to the implementation of the Consumer Protection Act 68 of 2008, and sets out why there was a need for the enactment of the Consumer Protection Act. The thesis then critically discusses the consumer protection law enforcement mechanisms introduced and/or catered for by the Consumer Protection Act. The in-depth comparative analysis against the consumer protection law enforcement dispensations in both India and the United Kingdom culminates in a critical analysis of the successes and shortcomings of consumer protection law enforcement regime in present-day South Africa; as well as recommendations (in the form of legislative amendments and practical solutions) on how the South African consumer protection enforcement framework can be improved in order to facilitate the realisation of consumer rights. / Mercantile Law / LL. D.