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ZAMBIA (c) Guide on Consumer Protection The Guide deals with matters connected with Part VIII (consumer protection) of the Act. It notes that the Act itself explains what an unfair trading practice is, and that a trading practice is unfair if it misleads consumers, if it compromises the standard of honesty and good faith which an enterprise can reasonably be expected to meet, or if it places pressure on consumers by use of harassment or coercion, thereby distorting or likely distorting the purchasing decisions of consumers. The Guide therefore explains that the following elements should be proven in determining whether a trading practice is unfair: Whether the conduct complained of was during trading: In this test, there is need to prove that unfair trading was engaged in during the course of trading or normal course of doing business. In order to prove this, there must be evidence of receipts or invoices. Whether the trading practice engaged in was unfair: In this test, there is need to prove that the practice complained of was unfair. An unfair trading practice is engaged in when the said and/ of honesty and good faith which an enterprise can reasonably be expected to meet; or places pressure on consumers by use of harassment or coercion; and thereby distorts or likely to distort, the purchasing decisions of consumers. Whether consumers have been misled: Misleading conduct occurs when a false statement of fact is made by one party to another party, which has the effect of inducing that party into a contract. Whether the practice compromised standard of honesty and good faith: In this case, good faith would mean the observance of honourable intent in business relations and the avoidance of any attempts to deceive consumers during the performance of contractual obligations. Traders and service providers therefore should desist from entering into contracts with consumers for goods or services that they know very well from the onset that they will not deliver. Whether pressure through harassment or coercion was placed on consumers: There is need to prove that the consumer was harassed or coerced. Harassment occurs when someone behaves in 149 an unpleasant or threatening way, and coercion means forcing someone to do something they do not want to do by threatening them. Whether the pressure distorted or likely distorted the consumer’s purchasing decisions: There is need to establish how the consumer’s purchasing decision was distorted. To distort means to change the appearance, sound or shape of something so that it is strange or unclear, or to change a situation from the way it would naturally be. 240. The Guide goes on to explain and give guidelines on the assessments tests and investigation procedure for unfair trading practices in general. The same is done for various unfair trading practices under the following sections of the Act: (i) section 47 (false or misleading representations); (ii) section 48 (display of disclaimers); (iii) section 49 (supply of defective and unsuitable goods and services); (iv) section 50 (product labelling); (v) section 51 (price display); section 52 (consumer product safety); and (vi) section 53 (unfair contract terms) 3.3 The Investigative Wing The investigative wing of the Commission is the Secretariat headed by the Executive Director, who is appointed by the Board of Commissioners in terms of section 6(1) of the Act. The Executive Di- mission responsible for the day-to-day administration of the Commission, under the direction of the Board. The Board may also appoint in terms of section 6(4) of the Act “such other staff as it considers necessary for the performance of the Commission’s functions under this Act”. Section Inspectors “for the purposes of ensuring compliance with this Act”, and for undertaking specialized investigations. The Secretariat, has wide investigative powers, including the undertaking of dawn raids by the Inspectors. To facilitate the Secretariat’s cartel investigations, section 79(1) of the Act provides that “the Commission may operate a leniency programme where an enterprise that voluntarily discloses the existence of an agreement that is prohibited under this Act, and co-operates with the Commission in the investigation of the practice, may not be sub- ZAMBIA
150 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE imposed under this Act”. The Secretariat submits to the Board of Commis- mendations from its investigations into competition and consumer concerns. 3.4 The Adjudicative Wing The Board of Commissioners is the adjudicative wing of the Commission, which makes determinations on competition and consumer concerns that have been investigated by the Secretariat. The Board however does not have powers of imposing criminal sanctions since that is the preserve of law courts. The Commission only refers to the Attor- per se prohibited competition and consumer cases. The Board composed of seven members appointed by the Minister in terms of paragraph 1(1) of the First Schedule to the Act, consisting: (a) a representative from the Ministry responsible for commerce; (b) a representative of the Attorney rience and knowledge in matters relevant to the Act. The Executive Director of the Commission is an member of the Board in terms of section 6(3) of the Act. The Chairperson and the Vice-Chairperson of the Board is appointed by the Minister from amongst the members of the Board. A member of the Board may be removed from of- The membership of the Commission’s Executive Director, who is the head of the Commission’s investigative wing, on the Board of Commissioners, which is the adjudicative wing of the est concerns because of his involvement in both the investigative and adjudicative functions of the Commission. This might present appealable grounds on determinations and decisions made by the Board on competition and consumer protection cases. It was explained that the Executive Director, being an member of the Board, does not have voting rights on competition and consumer protection cases being determined by the Board. His presence during the Board’s deliberations on such cases is only as a resource person. This should be made very clear to all stakeholders, particularly respondents in competition and consumer cases, to avoid unnecessary and costly challenges. It is recommended that it be made very clear through a Statutory Instrument Executive Director on the Commission’s Board of Commissioners does not give him voting rights on competition and consumer protection cases being determined by the Board. The Minister has more powers on the appointment of members of the Board of Commissioners under the new Act than under the old Act. Under the old Act, the Minister was restricted to appoint only those members of the Board who were nominated by their respective institutions, while under the new Act the nomination system has been removed. One of the stakehold- visit to Zambia (CUTS International) felt that with no statutory criterion on the appointments by the Minister, the process could be done on political basis, thus compromising the credibility of the Board’s decision-making. The old system of Board appointments was also preferred, or alter- the Act (i.e., the private sector) in the appointment system. It is however also noted that the old system of Ministerial appointments based on nominations the independence of the Board’s decision-making if the nominated members felt obliged to support the players from their respective sectors regardless of the merits of the case or issue under consideration. More seriously is the power of the Minister to remove a member of the Board of Commissioners without giving any reasons, which can be used for political reasons not related to the exigencies of the Commission. It is recommended that the Act should provide for clear grounds upon which a member of the Commission’s Board of Commissioners.
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UNITED NATIONS CONFERENCE ON TRADE
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UNITUNITED NATIONS CONFERENCE ON TR
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2 VOLUNTARY PEER REVIEW OF CLP: A T
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COMPARATIVE ASSESMENT COMPARATIVE A
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PREFACE This comparative assessment
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PREFACE agreements. . In the United
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PREFACE Finally in the United Repub
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PREFACE be set at a percentage of t
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PREFACE the market price but constr
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PREFACE (d) the extent to which the
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PREFACE pendence is maintained and
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PREFACE the effectiveness of the or
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PREFACE practical solutions, for ex
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PREFACE In addition to formal coope
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Page 103 and 104: 98 VOLUNTARY PEER REVIEW OF CLP: A
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Page 174 and 175: ZIMBABWE FULL REPORT ZIMBABWE
Page 176 and 177: ZIMBABWE TABLE OF CONTENTS PREFACE
Page 178 and 179: ZIMBABWE This report is part of the
Page 180 and 181: ZIMBABWE With the growing political
Page 182 and 183: ZIMBABWE of restrictive practices,
Page 184 and 185: ZIMBABWE competition authorities do
Page 186 and 187: ZIMBABWE divided according to geogr
Page 188 and 189: ZIMBABWE The Commission in 2006 whi
Page 190 and 191: ZIMBABWE to take care of themselves
Page 192 and 193: ZIMBABWE (under Section 9); basical
Page 194 and 195: ZIMBABWE Full scale investigation i
Page 196 and 197: ZIMBABWE (ii) to produce any book,
Page 198 and 199: ZIMBABWE The fact that CTC has a co
Page 200 and 201: ZIMBABWE tariat of technocrats, who
Page 202 and 203: ZIMBABWE Table 2: Number of Competi
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ZIMBABWE Regarding the handling of
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ZIMBABWE (Emphasis by the author) b
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ZIMBABWE Section 5 (1) (f) that pro
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ZIMBABWE Whilst the arguments can b
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ZIMBABWE Anti competitive agreement
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ZIMBABWE by conducting its case det
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