Sales and Marketing
Sales and marketing law in South Africa governs how businesses promote goods and services, communicate with consumers, and handle personal information. These rules exist to ensure fairness, accuracy, and transparency in commercial interactions, whether conducted in person, online, or through direct communication channels. The legal framework does not restrict legitimate marketing, but it regulates how businesses present information, obtain consent, and manage the expectations and rights of consumers.
What is Sales and Marketing Law?
Sales and marketing practices intersect with several statutes. The Consumer Protection Act (CPA) governs fairness in marketing and prohibits misleading conduct. POPIA regulates the use of personal information in marketing communications. The Electronic Communications and Transactions (ECT) Act governs online interactions and electronic messaging. These laws work together to establish clear standards for how businesses may advertise, structure promotions, and communicate with customers.
Fair, Accurate, and Transparent Practices
The foundation of South Africa’s consumer protection system is the requirement that marketing be truthful and free of ambiguity. Businesses must present information about pricing, product characteristics, terms of sale, and performance claims with clarity and precision. Errors, omissions, or exaggerated statements may constitute prohibited conduct, even if not intended to mislead.
Fairness extends beyond advertising content. Goods and services must meet the standards that consumers are entitled to expect, including quality, safety, and suitability for their intended use. Marketing materials are often relied on as part of the purchase decision, which means inconsistencies between advertising and actual performance can lead to legal exposure.
Transparency is equally important. Suppliers must disclose material terms in a manner that is easy to understand, especially where agreements include ongoing obligations, fees, or cancellation rights. Lack of clarity may result in unenforceable terms or regulatory scrutiny.
Legislation Governing Sales and Marketing
South African marketing practices are shaped primarily by the CPA, POPIA, and the ECT Act. Each statute governs a different aspect of the relationship between businesses and consumers.
Consumer Protection Act (CPA)
The CPA regulates how goods and services are marketed and prohibits conduct that may mislead or deceive. Marketing must be accurate, and all representations must be supported by facts. The Act also requires suppliers to present terms of sale, warranties, and pricing information clearly. Consumer rights under the CPA include the ability to return defective goods, request repairs or refunds, and—where direct marketing is involved—cancel certain agreements within a defined period.
POPIA
POPIA governs how personal information is collected and used for marketing. It requires businesses to obtain appropriate consent for unsolicited electronic communications and mandates that privacy notices clearly explain how information will be processed. Direct marketing via email or SMS is generally permitted only where the consumer has opted in, subject to limited exceptions for existing customer relationships.
Electronic Communications and Transactions (ECT) Act
The ECT Act adds further requirements for electronic marketing, including clear sender identification, disclosure of certain information in online communications, and the inclusion of functional unsubscribe mechanisms. It works alongside POPIA to regulate how digital marketing is conducted.
Direct Marketing and Consumer Rights
Direct marketing is tightly controlled in South Africa because it involves contacting individuals to promote goods, services, or request donations. These communications may occur through telephone calls, SMS, email, postal delivery, or other electronic methods. The law focuses on two core issues: when a supplier may initiate contact, and how the consumer’s preferences and rights must be honoured.
When Direct Marketing Is Permitted
The CPA allows suppliers to contact consumers only during prescribed hours unless the consumer has expressly agreed to alternative times. These restrictions help prevent intrusive or unwanted approaches and apply to most forms of direct marketing communication.
The Act also requires suppliers to respect any indication—verbal, written, or posted—that a consumer does not wish to receive marketing material. Once a consumer has communicated this preference, further contact may breach statutory requirements.
Opt-Out Rights
Consumers may instruct a supplier to stop direct marketing at any time. This can be done by replying to an electronic message, indicating a preference on a postal box, or using a recognised opt-out registry. Once notified, the supplier must cease communication within a reasonable time. There is no fee associated with opting out, and suppliers may not create obstacles that make the process burdensome.
Cooling-Off Rights Following Direct Marketing
When a transaction results directly from a marketing communication, the CPA grants the consumer a right to cancel the agreement within five business days. The cancellation must be in writing, and suppliers must refund payments within 15 business days of receiving the notice or returned goods. Only reasonable charges for use or restoration may be deducted. This right applies because purchases arising from direct marketing are considered more susceptible to pressure or incomplete information.
POPIA and Direct Marketing
POPIA introduces additional requirements for unsolicited electronic communications. Generally, marketing by email, SMS, or similar channels may occur only if the consumer has given prior consent. This creates an opt-in system that restricts the ability to send unsolicited communications.
An exception applies to existing customers where their details were obtained during a sale of goods or services. Marketing is permitted only for similar products or services, and the consumer must have been given a clear and free opportunity to decline further communications both at the time their information was collected and with each subsequent message. Suppliers must also ensure that personal information is securely stored and processed in accordance with POPIA’s data protection principles.
Electronic Communications and Transactions (ECT) Act
The ECT Act complements POPIA by regulating the content and form of electronic marketing. Communications must identify the sender clearly, provide accurate contact information, and include a functional mechanism for unsubscribing. These requirements ensure that consumers can recognise who is contacting them and can easily withdraw consent for future communications.
Proposed Amendments to Direct Marketing Regulations
Recent proposals under the CPA signal a shift toward stricter oversight of direct marketing practices. The suggested amendments, still under consideration, aim to strengthen consumer control and improve accountability among suppliers.
The key proposals include annual registration for direct marketers on a national opt-out registry, compulsory monthly checks of marketing databases against that registry, and clearer identification requirements in electronic communications. Marketers may also be required to implement verification mechanisms to ensure they do not contact individuals who have recorded a pre-emptive block. These measures, if implemented, will require businesses to refine their internal processes and maintain accurate, up-to-date records to support compliance.
Maintaining Compliant Sales and Marketing Practices
Sales and marketing teams operate within a regulated environment that demands consistent legal oversight. Compliance is achieved not through isolated checks but through integrated systems that govern how information is presented, collected, stored, and used.
Businesses benefit from reviewing their marketing materials and communication channels regularly to ensure that claims are accurate, disclosures are complete, and terms are presented with clarity. Privacy notices should align with POPIA’s requirements, and systems used for electronic communication must support legitimate consent, functional unsubscribe mechanisms, and secure information handling.
Internal policies also play a central role. Staff involved in marketing or sales must understand the legal standards that apply to their work, including how to manage customer information lawfully, when direct marketing is permissible, and how to respond when a consumer indicates they do not wish to receive further contact. The consistency of these practices determines whether a business remains compliant as marketing strategies evolve.
VDM Attorneys – Sales and Marketing Compliance
VDM Attorneys assists businesses in meeting their obligations under the CPA, POPIA, and the ECT Act. Our assist by reviewing marketing materials, advising on data-driven communication strategies, drafting compliant policies, and addressing regulatory developments that affect consumer engagement. We help organisations structure their sales and marketing operations so that they remain effective while meeting the legal standards expected in South Africa’s regulated commercial law environment.