(1) A term in a consumer agreement is unfair if it is to the detriment of the consumer and it causes a significant imbalance in the rights of the supplier and the consumer.
(2) In determining whether a term is unfair the Tribunal shall have regard to all the circumstances of the case and in particular to the following —
(a) the bargaining strength of the parties to the consumer agreement relative to each other, taking into account —
(i) the availability of equivalent goods or service, and
(ii) suitable alternative sources of supply;
(b) whether the consumer received an inducement to agree to the term, or, in agreeing to the term, had an opportunity of acquiring the goods or service or equivalent goods or service, from any source of supply under a contract that did not include that term;
(c) whether the consumer knew or ought reasonably to have known of the existence and extent of the term, having regard to any custom of trade and any previous dealings between the parties;
(d) in the case of supply of goods, whether the goods were manufactured, processed or adapted to the special order of the buyer;
(e) the nature of the goods or service for which the consumer agreement was concluded;
(f) the interest of the supplier;
(g) the other terms of the consumer agreement or of another consumer agreement on which it is dependent;
(h) the interest of the particular class of consumers who are likely to adhere to the consumer agreement; and
(i) the circumstances surrounding the conclusion of the consumer agreement at the time of its conclusion.
(Amended by Act 14 of 2021)
(3) An unfair term in a consumer agreement is unenforceable against the consumer.
(4) Where a consumer asserts that a term in a consumer agreement is unfair, it is for the supplier to prove that the term is not unfair.
(5) Where the Tribunal, after having considered all the circumstances contemplated under subsection (2), is of the opinion that a term is unfair, it may —
(a) rescind or amend the consumer agreement or a term of the consumer agreement; or
(b) make any other order as may be necessary to prevent the effect of the consumer agreement being unfair or unreasonable to any of the parties, notwithstanding the principle that effect must be given to the contractual terms agreed upon by the parties.