The National Consumer Commission's (Commission) recent referral of FlySafair to the National Consumer Tribunal (Tribunal) has placed the Consumer Protection Act (CPA) firmly back in the public spotlight. The Commission's investigation found that FlySafair's conduct contravened several core provisions of the CPA, including those regulating unconscionable conduct.
According to the Commission's media statement of 21 May 2026, FlySafair systematically overbooked flights during certain peak travel periods, affecting up to 5,000 passengers and generating revenue that it would not otherwise have earned. Consumers reportedly arrived for confirmed bookings only to be denied boarding due to a lack of available seats. The airline apparently acknowledged that overbooking formed part of its business model (as it does for many carriers globally).
While these facts arise in the aviation context, and specifically in relation to overbooking, the legal principles are of general application. This matter highlights the CPA's broader role in regulating not only the terms of consumer agreements, but also the conduct surrounding their formation, implementation and enforcement.
Unconscionable conduct explained
The term “unconscionable" generally refers to behaviour that is unethical, amoral, unscrupulous or indefensible. The CPA defines unconscionable conduct as behaviour contemplated in section 40, or conduct that is improper or unethical to a degree that would shock the conscience of a reasonable person.
Section 4(5)(b) provides that, in any dealings with a consumer in the ordinary course of business, a person must not engage in any conduct that is unconscionable.
Section 40(1) prohibits the use of physical force, coercion, undue influence, pressure, duress or harassment, unfair tactics or any similar conduct in connection with the marketing and supply of goods or services, or in the negotiation, conclusion, execution or enforcement of a contract for the supply of goods or services, or in the demand or collection of payment for goods or services or the recovery of goods from consumers.
Section 40(2) further provides that it is unconscionable for a supplier knowingly to take advantage of the fact that a consumer was substantially unable to protect their own interests because of physical or mental disability, illiteracy, ignorance, inability to understand the language of an agreement, or any other similar factor.
In National Consumer Commission v Vodacom Proprietary Limited NCT/260497/2023/73(2)(b) (Vodacom Matter), the Tribunal emphasised that the list of prohibited conduct in section 40(1) is not closed and extends to “any other similar conduct". The Tribunal also confirmed that "knowledge on the part of the supplier is required under section 40(2), but there is no reference to 'knowledge' in subsection (1)". As a result, a supplier may be liable for a contravention of section 40(1) even committed unwittingly.
Furthermore, the definition includes an additional catch-all provision: conduct that would be improper or unethical to a degree that would shock the conscience of a reasonable person. This may include novel or unanticipated conduct, or conduct that otherwise does not fall neatly within the ambit of section 40. Notably, an objective element is introduced through the “reasonable person" requirement, which does not apply in the context of section 40 conduct.
The CPA's expansion of the common law
Under the common law, doctrines such as duress and undue influence render contracts voidable because they undermine or negate genuine consent. Section 40 of the CPA expands on this by imposing consequences for other improper or unethical conduct in relation to the broader contracting process, including marketing, supply, negotiation, implementation and enforcement. The CPA therefore amplifies the focus from the free will of the contracting party to overall fairness in the transactional context.
Practical implications for suppliers
Section 40 is fundamentally concerned with procedural fairness in consumer contracting. Procedural fairness focuses on the process by which agreements are concluded and enforced, rather than merely their substantive terms (although, importantly, unconscionable terms are also deemed automatically unfair, unreasonable or unjust in terms of section 48(2)(d)(i)). Practically, this means that, among other considerations, suppliers must engage with consumers transparently, ensure that key terms are clearly presented and understood, and avoid conduct that distorts the consumer's ability to make an informed decision. Equally important is that the consumer's consent is obtained without misrepresentation, pressure, or exploitation of informational asymmetries.
In National Consumer Commission v Lana-Jane de Jager N.O. and Hanro de Jager N.O. NCT/376591/2025/73(2)(b), the respondents' conduct in recruiting participants for a reality TV show intentionally misled and deceived consumers into thinking that they were entering a competition to win a dream wedding. The Tribunal found that this conduct was unconscionable, and reflected a disregard for the spirit and purpose of the CPA. The Tribunal's order included an administrative fine of ZAR 250,000.
While that matter seems fairly unequivocal, the Vodacom Matter illustrates how even ordinary commercial practices can cross the line into unconscionable conduct. The Tribunal found that requiring payment before processing cancellations, combined with threats of legal action and blacklisting, amounted to coercion and undue pressure in connection with both the supply of services and the collection of payment. While the Tribunal declined to grant an interdict or order refunds to consumers, the conduct was declared prohibited and Vodacom was ordered to pay an administrative fine of ZAR 1,000,000. This demonstrates that even routine enforcement processes must be carefully managed to ensure compliance.
Section 40(2) sets a high standard for suppliers to ensure that consumers understand agreements, particularly in the case of vulnerable consumers. To avoid taking advantage of a consumer's vulnerabilities, suppliers must ensure that the consumer understands the agreement and is able to protect their interests.
The common thread is that suppliers of goods or services cannot simply assume that a signature, website link or standard disclaimer will protect them in a contractual dispute. The practical question is whether the consumer has been dealt with ethically, transparently and in a manner that does not impose an unjust allocation of risk.
The FlySafair matter is illustrative of this point. Although the airline's terms permitted overbooking, the head of complaints and investigations for the Commission, Ms Prudence Moilwa, indicated in an interview with Stephen Grootes on Newzroom Afrika that consumers were not adequately informed that a confirmed booking did not guarantee a seat. The issue, she explained, was therefore not (only) the existence of the term, but the failure to adequately disclose its practical implications. For any supplier that relies on standard form terms and conditions, this referral underscores the need to revisit customer-facing documents, policies and practices.
The FlySafair matter underscores the willingness of consumer protection authorities to act where business practices undermine the CPA. Compliance is not achieved through formalistic reliance on standard terms alone. Suppliers should treat these developments as a prompt to audit not only their contractual terms, but also their sales, disclosure, and enforcement policies and practices.
