The Consumer Protection Act 68 of 2008 (“the CPA” and/or “the Act”) came into effect on the 1st of April 2011 with its main focus to protect consumers and to promote a fair, accessible and sustainable marketplace. It also has an impact on the way manufacturers, suppliers and retailers do business. The CPA sets out a range of fundamental consumer rights as well as ways to protect these rights.
The CPA places an obligation on business owners to not only be aware of the implications of the Act but also ensure that the business’s terms and conditions are in line with the requirements of the Act. The Act’s express purpose is to make sure consumers are not treated unfairly – intentionally or not. This means that using plain language is more crucial than ever. From now on, using obscure and confusing wording, especially in binding contracts, is not allowed. Quite simply, it’s illegal!
The Act defines plain language in Part D, section 22 as follows:
“For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance, and import of the document without undue effort, having regard to:
- The context, comprehensiveness and consistency of the notice, document or visual representation;
- The organisation, form and style of the notice, document or visual representation;
- The vocabulary, usage and sentence structure of the notice, document or visual representation; and
- The use of any illustrations, examples, headings, or other aids to reading and understanding.”
This means that one won’t be permitted to word things so widely that they can be understood in several ways. The Act states that if there is any doubt about the meaning of certain words or terms and conditions, the benefit will go to the consumer.
One of the most frequent questions consumers ask is when goods may be returned under the CPA. There are a number of sections that allow consumers to return goods to the suppliers. It is important to note, however, that there is no general right of return. For example, when you buy an item from a store and the next day you regret spending so much money, or you simply do not like the item in the morning, you cannot return the item simply because you have had a change of heart. Some retailers do allow you to do this, but it is not your legal right to do so. A change of heart is not a legal reason to return an item.
When is it allowed to return goods, then? Generally speaking there are only four instances when one can return goods under the CPA.
- The Direct Marketing Cooling-Off Period
If a consumer has bought goods as a result of direct marketing, the consumer has the right to cancel the entire agreement without penalty and return the goods within 5 days after receiving the goods, in terms of section 16 of the CPA. The consumer will also be entitled to a full refund. However, the consumer will have to pay the costs to return the goods.
- Goods which have not been seen before purchase
In terms of section 20 (read together with section 19) of the CPA, if a consumer has not had the opportunity to examine or inspect the actual goods received before purchase, they are entitled to inspect the goods on delivery. If, on this initial inspection, the consumer finds that the goods do not meet the ‘type’ or ‘quality’ one could reasonably expect from the agreement or if the goods were made in terms of a special or ‘custom’ order, and the goods do not reasonably conform to the specifications of the order, then:
- the consumer may refuse delivery,
- receive a full refund, and
- the consumer may cancel the agreement without penalty.
The supplier will be liable for the costs of returning the goods in this instance.
- Goods do not meet particular purpose
Should a consumer inform a supplier that goods are being bought to fulfill a particular purpose and the supplier advises that the goods will meet this particular purpose then the consumer may cancel without penalty and return the goods if it is not suitable for the particular purpose within 10 days after receiving the goods, according to section 55(3) (read together with section 20) of the CPA. The supplier will also be liable in this instance for the costs of returning the goods.
It is important to note that the consumer will not be entitled to return goods for any of the reasons explained in 1 to 3 above, if:
- public health or public regulation prohibits the return of those goods to a supplier once they have been supplied to a consumer, or
- the goods have been partially or entirely disassembled, altered, added or combined with other goods or property after having been supplied to a consumer.
- Implied Warranty of quality
In terms of section 56 (read together with section 55) of the CPA, all goods sold to a consumer are sold with an implied warranty of quality, that cannot be contracted out of or revoked. The warranty gives the consumer the right to receive goods that:
- are reasonably suitable for the purpose that they are intended to be used for,
- are of good quality, free of defects and in good working order, and
- will be durable and usable for a reasonable period of time.
If goods are found not to comply with these requirements then the consumer may either return the goods or have the goods replaced or repaired within 6 months after receiving the goods. Any of the above should be without penalty to the consumer at the suppliers cost.
A general “voetstoots” clause will be insufficient. However, a consumer will not be able to return the goods because it was defective or not suitable for the purpose if;
- The consumer was made aware of the specific defects; and
- the consumer agreed to receive the goods in the specific condition.
Due to the fact that a supplier has to make mention of the specific defects, a general ‘voetstoots’ clause will be insufficient to get out of the section 56 warranty.
Each business requires careful scrutiny of its specific relationship with consumers in order to develop appropriate terms and conditions which will not only match the business’s unique circumstances but also determine which transactions fall within the scope of the Act.
Contact Greeff Attorneys on email@example.com should you wish to have your current terms and conditions reviewed or should you require it to be drawn up to suit your business’s specific needs.