Abstract
The introduction of the Consumer Protection Act 68 of 2008 (hereafter the CPA) in 2011 has sparked significant controversy regarding whether voetstoots clauses should remain permissible under its provisions. This is because the wording of the CPA has been deemed ambiguous as it fails to explicitly address the position pertaining to the enforceability of voetstoots clauses in consumer contracts that fall within its scope. Most notably, the CPA has granted various additional statutory rights to consumers pertaining to the standards of goods sold in the marketplace, and these rights directly contradict the very core and nature of voetstoots clauses. Despite the CPA’s good intentions, its interpretation has proven to be challenging. Before the CPA came into operation, voetstoots clauses were generally enforceable under common law. Since the introduction of the CPA, the position has been quite uncertain. This study seeks to investigate the current position on the application of voetstoots clauses in South African consumer law in comparison with the position in the United Kingdom. Thereafter, recommendations will be made regarding what the legislature can do to rectify some of the discrepancies and problems associated with voetstoots sales under the CPA.