Data rollover and the CPA
The National Consumer Commission (NCC), headed up by Mamodupi Mohlala, has taken on cellular network operators over their policies on the rollover of unused mobile data.
Earlier reports said that the NCC was using section 63 of the Consumer Protection Act (CPA), which states that prepaid credits may not expire for three years, to take on iBurst, First National Bank, Cell C, Virgin Mobile SA, MTN, Vodacom, and 8ta.
However, when the CPA came into force earlier this year, we requested a legal perspective and Nicholas Hall from Michalsons attorneys explained that the CPA would not extend to prepaid airtime and data.
“If you look at Section 63 [of the Act] it is envisaging a physical thing that can act as money in exchange for goods or services or be used to acquire those goods or services at a later date,” Hall said.
Which means it applies to vouchers for airtime, data, and other value, but once those vouchers are redeemed Section 63 no longer applies.
Asked whether anything had changed that might have caused the NCC to go after certain service providers, Hall said that as far as he knew, nothing had changed.
Nicholas Hall, Michalsons attorneys
Hall said that if you take a broad interpretation of the relevant section (63, subsections 1(b) and 2) of the CPA, then it’s possible the NCC has a leg to stand on and at the very least can make a case that the operators should be offering 3 year rollover.
However, Hall went on to explain that in the same section of the CPA containing the rules on the period of validity it says:
“This section […] does not apply with respect to such a device or the value represented by it, after all of the value of the device has been exchanged for […] future access to services.”
Hall said that this wording to him means that this section of the CPA only applies to the actual voucher and not the value it represents once it has been redeemed.
“I will concede that there is room to argue that this section is intended to apply to the the value of the vouchers as well and the CPA requires the courts interpret the Consumer Protection Act in a way that most benefits the consumer,” Hall said.
If the NCC can make a compelling argument that despite the last sentence of s63(1) of the CPA, the 3 year expiry must apply to the ‘value’ of vouchers then they should at least try and make that argument.
“If they are successful it will be a big win for South African Consumers,” Hall said.
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