Private Policy

Consumer Protection Act and the Protection of Personal Information Act

Important definitions – Section 36(1) CPA
1. ‘‘participant’’ – a person who enters, competes in or is otherwise eligible to win a promotional competition;
2. ‘‘prize’’ – includes a reward, gift, free good or service, price reduction or concession, enhancement of quantity or quality of goods or services, or other discounted or free thing;
3. ‘‘promoter’’ – a person who directly or indirectly promotes, sponsors, organises or conducts a promotional competition, or for whose benefit such a competition is promoted, sponsored, organised or conducted; and
4. ‘‘promotional competition’’ – any competition, game, scheme, arrangement, system, plan or device for distributing prizes by lot or chance if it is conducted in the ordinary course of business for the purpose of promoting a producer, distributor, supplier, or association of any such persons, or the sale of any goods or services; and any prize offered exceeds the threshold prescribed (R1.00), irrespective of whether a participant is required to demonstrate any skill or ability before being awarded a prize.

Requirements in terms of Section 36(5) of the CPA:
1. Before each competition, the promotor must prepare a set of competition rules (terms and conditions – T’s and C’s) which should be made available to any participant upon request.
2. Because these rules constitute a consumer agreement, the CPA further requires that these rules must be “fair, just and reasonable” terms and conditions, as regulated by Section 48 of the CPA.
3. It is advised that the rules be posted on Instagram and Facebook, as well as be available of the website and/or upon request. The advertisement must include where the T&C’s can be found.
4. A promotor must ensure that an offer to participate in a promotional competition must clearly state the following:
  1. the competition or benefit to which the offer relates
  2. steps required to participate in the competition;
  3. how a participant should accept the invitation to participate;
  4. how and the basis on which the results will be determined;
  5. the competition’s closing date;
  6. the means/medium by which the results of the competition will be made public;
  7. the person from whom or place where a copy of the competition rules may be obtained;
  8. the person from whom, the place where and the date / time on which a successful participant may receive the prize;
  9. make the competition rules available to the National Consumer Commission and to any participant on request and without cost;
  10. retain a copy of the competition rules for the prescribed period after the end of the competition.
5. The promoter will be deemed to have satisfied the requirements if this information is available directly on the medium through which a person participates in the competition, on a document accompanying any medium or in any advertisement which is published and which draws attention to the promotional competition.
6. The right to participate in a promotional competition is fully vested in a participant immediately upon them complying with the conditions required by the specific competition.

Contraventions in terms of Section 36(7) to (9) and Regulation 11(3) of the CPA – the promotor may not:
1. indicate that a participant has won a competition if no competition has been conducted OR the person has, in fact, not won the competition OR the person is required to meet a previously undisclosed condition or additional condition OR required to pay a further sum of money in order to receive the prize;
2. inform a participant that they have a right to a prize when, in fact, he does not have such right, where the prize was generally offered to other similar participants, or where the participant is required to pay a further amount for the prize or to purchase any goods or services;
3. require any consideration to be paid by any participant other than the reasonable costs of an entry;
4. award a prize to any person who is a director, member, partner, employee or agent of, or consultant to, the promoter or to a supplier of goods or services in connection with that competition or any other person who directly or indirectly controls or is controlled by the promoter;
5. award the prize to a winner if it is unlawful to supply those goods or services to that prize winner.
6. require a prize winner to permit the use of his image in marketing materials; participate in any marketing activity; or be present when the prize draw takes place or the winners are announced, without offering them the opportunity to decline such requirement.

Oversight of Documentation
1. Regulation 11(5) of the CPA requires that the promoter ensure that an independent accountant, registered auditor, attorney or advocate oversees and certifies the conducting of the competition and must report this through the promoter’s internal audit reporting or other appropriate validation or verification procedures.

Retention of Documentation
1. Regulation 11(6) of the CPA requires that the following information be retained for a period of at least 3 years:
2. (a) full details of the promoter, including identity or registration numbers, as the case may be, addresses and contact numbers; (b) the rules of the promotional competition; (c) a copy of the offer to participate in a promotional competition (raffle tickets); (d) names and identity numbers of the persons responsible for conducting the promotional competition; (e) a full list of all the prizes offered in the promotional competition; (f) a representative selection of materials marketing the promotional competition or an electronic copy thereof; (g) a list of all instances when the promotional competition was marketed, including details on the dates, the medium used and places where the marketing took place; (h) the names and identity numbers of the persons responsible for conducting the selection of prize winners in the promotional competition; (i) an acknowledgment of receipt of the prize signed by the prize winner, and his or her identity number, and the date of receipt of the prize, j) declarations by the persons contemplated in paragraph (d) made under oath or affirmation that the prize winners were to their best knowledge not directors, members, partners, employees, agents or consultants of or any other person who directly or indirectly controls or is controlled by the promoter or marketing service providers in respect of the promotional competition, or the spouses, life partners, business partners or immediate family members; (k) the basis on which the prize winners were determined; (I) the summary describing the proceedings to determine the winners, including the names of the persons participating in determining the prize winners, the date and place where that determination took place and whether those proceedings were open to the general public; (m) whether an independent person oversaw the determination of the prize winners, and his or her name and identity number; (n) the means by which the prize winners were announced and the frequency thereof; (o) a list of the names and identity numbers of the prize winners; (p) a list of the dates when the prizes were handed over or paid to the prize winners; (q) in the event that a prize winner could not be contacted, the steps taken by the promoter to contact the winner or otherwise inform the winner of his or her winning a prize; and (r) in the event that a prize winner did not receive or accept his or her prize, the reason for his or her not so receiving or accepting the prize, and the steps taken by the promoter to hand over or pay the prize to that prize winner

Protection of Personal Information Act 2 of 2013 (POPIA)

Consent, justification and objection (Section 11)
1. The business may only process the personal information of a participant if the participant consents to the processing.
2. The business bears the burden of proof to show that the participant consented to the processing of the personal information.
3. The participant may withdraw his, her or its consent, at any time, after which the business may no longer process the personal information.

Collection for specific purpose (Section 13)
1. The business may only collect personal information for a specific, explicitly defined and lawful purpose that relates to the function or activity of the business.
2. The business must make sure that the participant is aware of the purpose of and the means for processing personal information prior to collecting the information.\
3. It is advised that the business state the purpose of collecting the personal information on the document on which the information is to be supplied by the participants.
4. Processing of personal information must be done in accordance with the purpose for which it was originally collected.
5. If the business wants to process information for another reason, additional consent to that regard must be obtained from the participant.

Direct marketing by means of unsolicited electronic communication (Section 69)
1. Consent must be given by the participant to process their information for purposes of direct marketing (bulk SMS’s/Emails or contacting a client or non-client with regards to marketing or promotional content regarding your goods and services).
2. The business may approach a data subject only once in order to request the consent.
3. If a participant is contacted with regards to marketing services, they must be given the option to opt-out of receiving marketing content.
4. Any marketing communications must contain the identity and contact address of the sender thereof.