This was taken by some to mean that if consumers ordinarily do not pay for a SMS at all because they have a free bundle of SMS in their contract, then they should be able to enter a competition free, via SMS. Similarly, if another consumer ordinarily paid R1 for a SMS, then that should be the cost of conveying a SMS entry into a promotional competition.
The intention of this was that promoters in promotional competitions should not earn any revenue from the conveyance of SMS entries into promotional competitions, as this would render the competition an illegal lottery.
No doubt, faced with a host of objections to the draft Regulations, the minister of trade and industry revised the ministry's position on the issue allowing for a nominal charge to be applied to SMS entries, with that charge being capped at R1.50 for any competition.
There is no express prerequisite that the promoter should be able to justify charging the R1.50 per SMS entry, but it is suggested that the wording of the Act may enjoin promoters to be able to tie to cost of an SMS entry to a cost actually incurred by the promoter. For example, where promoters sometimes incur costs in having to employ third party telecommunication service providers to collate SMS entries.
The CPA is noteworthy in that it yields very few, if any, rights for suppliers, with all the rights flowing from the legislation going to the consumer. However, in this instance at least, a position of legal certainty has been created and a measure of relief has been given to promoters in what should be seen as a forward thinking and progressive move.
Overly strict and restrictive regulation of consumer-based activities such as promotional competitions would ultimately have had the chilling effect of lessening the number of such competitions conducted.
Many promoters can feel relieved that they will be able to recover a measure of costs incurred in organising and running a promotional competition through the relaxation of the Regulation.
