Abstract
This article considers section 4(2)(b) of the South African Consumer Protection Act 68 of 2008 (hereafter the CPA), which grants a power to courts and the National Consumer Tribunal to make "appropriate orders to give practical effect to the consumer's right of access to redress", including, but not limited to, "any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights" in terms of the CPA (in addition to any order provided for in the CPA). First, a brief overview of the provisions on interpretation of the CPA is given, to give context to the interpretation of the power of the courts to make innovative orders. Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy. Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time".
 The article then considers situations where there is no clear gap in the CPA such as a right without a remedy, but the CPA is nevertheless ambiguous and policy considerations call for an innovative order. This part gives an example of a case where the National Consumer Tribunal briefly referred to section 4(2)(b) on innovative orders in support of a new rule on the suspension of prescription (time limitation) not recognised in the text of the CPA. Part 5 of the article considers the types of orders that were probably envisaged by the legislature when drafting section 4(2)(b) on innovative orders, such as publicity and compliance programme orders, which serve to increase the effectiveness and preventative effect of orders on prohibited conduct. This part of the article considers legislation from the United Kingdom on such orders, which is referred to as "enhanced consumer measures".
 
Highlights
Thereafter, instances are discussed where it is undoubtedly clear that innovative orders are needed, that is, where the CPA creates a right without a remedy
Examples are the consumer's right to receive delivery of the goods or performance of the services within a reasonable time where no time for performance was agreed upon, and the consumer's right to assume that "the supplier has the legal right, or the authority of the legal owner", to supply the goods. This part includes analysis and criticism of the only reported decision which discusses the delineation of the power to grant innovative orders, and which unjustifiably refused to grant such an order in respect of the consumer's right that the goods supplied "remain useable and durable for a reasonable time"
Should the consumer immediately have the right to cancel the contract after this reasonable time has elapsed? Or are the consumer's remedies the same as under the common law, namely that the creditor may cancel for mora debitoris only after a demand and notice of rescission, unless "time is of the essence under the contract"?37 Until the legislature clarifies the position, courts and the NCT will have to make a decision on the basis of an innovative order whether to follow the common law or rather to allow the immediate cancellation after a reasonable time
Summary
A court or Tribunal should grant a remedy beyond the six month period on the basis of its power to make an innovative order that protects the consumer's right that the goods remain useable and durable for a reasonable period.. Order designed to better advance, protect, promote and ensures the realisation of the consumer's right to be informed of the cooling-off right.35 Another example of a right recognised by the CPA with no remedy is the consumer's rights to delivery of the goods or performance of the services within a reasonable time where no date or time for performance was agreed upon by the parties.. Should the consumer immediately have the right to cancel the contract after this reasonable time has elapsed? Or are the consumer's remedies the same as under the common law, namely that the creditor may cancel for mora debitoris (delay on the part of the debtor) only after a demand and notice of rescission (a warning of the possible cancellation if performance is not forthcoming by a date specified in the notice), unless "time is of the essence under the contract"?37 Until the legislature clarifies the position, courts and the NCT will have to make a decision on the basis of an innovative order whether to follow the common law or rather to allow the immediate cancellation after a reasonable time
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