BY: EPHRAIM KUNGWIMBA
If one had to have a survey on how many consumers read the content on the reverse side of their receipts, one would be surprised by the amount of people who do not know what it is exactly that they are agreeing to when receiving or signing a receipt upon making a purchase.
Receipts only become relevant to consumers once they are unsatisfied with goods or services which they purchased.
So what does the law say?
CURRENT LEGAL FRAMEWORK
Prior to 2008 consumer’s rights were mainly based on contract law and the Supplier had free will in terms of setting the terms of an agreement. Consumers often felt the brunt of the stick and their rights were often adversely affected with little to no remedies.
The doctrine of Caveat Subscriptor is a latin term which means that a person who signs a contract does by his signature assent to the contents of the document. This doctrine was applied strictly to Consumer’s prior to the introduction of the Consumer Protection Act.
The introduction of the Consumer Protection Act in 2008 introduced 8 vital rights which every consumer should know:
RIGHT TO EQUALITY IN THE CONSUMER MARKET
Section 8 of the Act provides that a supplier or a service provider must not unfairly exclude a person or a class of people from accessing the goods or services provided. This right provides that the service provider or supplier must not discriminate a consumer on any grounds that are listed in Section 9 of the Constitution.
RIGHT TO PRIVACY
The consumer’s right to privacy is provided for in Section 11 of the Act. The right to privacy encompasses the right to restrict unwanted direct marketing which is approaching a person either in person or by mail or electronic communication for the direct or indirect purpose of (a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person or (b) requesting the person to make a donation of any kind for any reason.
This section was enacted to prevent a Supplier’s unfettered use of consumer’s personal information for unsolicited direct marketing campaigns by requiring direct marketers to provide consumers with an “opt out” option for unsolicited marketing communication.
Many consumers face this problem on a day to day basis. Have you ever received several of those marketing related SMS’s which do not have an opt out option? Many consumers are being pestered daily and sending an “Opt Out” or “Stop” response does not guarantee that the consumer will cease communication. Many Suppliers are in contravention of this section.
The section further provides that if a Consumer wishes to opt out, a supplier is not entitled to charged or demand a fee from the consumer for registering, deregistering or blocking direct marketing. Direct marketing to a consumer at their place of residence for promotional purposes is also prohibited unless the consumer expressly requests it.
RIGHT TO CHOOSE
As a consumer, you have the right to choose a supplier for the goods you wish to purchase or a service provider to render services. This right also includes consumers to have the right to choose the products and goods they wish to purchase and to examine such goods after purchasing. Consumers have the right to reject products that do not correspond with the examined samples.
Consumers have the right to cancel fixed-term agreements upon expiry of the contract period, without penalty or charge. Consumers are obliged to provide suppliers with 20 business days’ notice, in writing or other recorded means, of cancellation of fixed-term agreements. Reasonable penalties may apply.
Suppliers must extend fixed-term agreements on a month-to-month basis, if the consumers failed to request the cancellation of such agreements.
THE RIGHT TO RETURN REFUND OR REPLACEMENT
Section 20 provides that a Consumer has the right to return unsafe or defective goods, contemplated in section 56; or any other right in law between a supplier and consumer to return goods and receive a refund.
The consumer may return goods to the supplier, and receive a full refund of any consideration paid for those goods, if the supplier has delivered goods to the consumer in terms of an agreement.
RIGHT TO DISCLOSURE AND INFORMATION
Consumers have the right to be given information in plain and understandable language. Consumers also have the right to demand agreements, contracts, sale recordings and any other documents relating to the goods purchased or services that will be rendered to the consumer in a language that he or she understands.
RIGHT TO FAIR AND RESPONSIBLE MARKETING
Suppliers are not permitted to mislead consumers in respect of pricing, the nature, properties, advantages or uses of goods or services advertised, if such goods or services are not actually available for purchase or procurement in accordance with these standards.
Suppliers are obliged to include limitations in respect of the availability of goods or services when advertising such items, and honour such agreements. Suppliers are not permitted to promote any goods or services or automatically enter consumers into agreements for the supply of unwanted or unsolicited goods or services.
Suppliers or service providers that directly market any goods or services to consumers must inform them of their right to cancel the agreements within the cooling-off period of five (5) business days.
THE RIGHT TO FAIR AND HONEST DEALING
Consumers are protected against unconscionable conduct such as the use of physical force, coercion, undue influence, pressure, duress, harassment, unfair tactics or any other similar conduct. Consumers also enjoy the protection against fraudulent schemes and such as pyramid and related schemes.
So the next time a Forex Trader approaches you with a proposal to make quick cash, tell them that you are protected in terms of the CPA and any scheme that turns out to be fraudulent will lead to liability.
RIGHT TO FAIR JUST AND REASONABLE CONTRACT TERMS
Consumers have the right to be provided with the terms and conditions for the purchase of goods and services in a language that would be understood by the consumer. The consumer must be told of such terms and conditions in a case of a sale initiated telephonically by the supplier.
RIGHT TO FAIR VALUE, GOOD QUALITY AND SAFETY
Consumers have the right to demand quality goods and services. Furthermore, consumers are entitled to the timely performance and completion of services by the supplier and to be provided with notice of any unavoidable delays in completion of the service.
Suppliers are obligated to disclose any latent or patent defects. A latent defect is a fault that would not readily be revealed by a reasonable inspection whereas patent defects are defects that are not hidden and should easily be discovered by a reasonable inspection.
Despite there being a great onus on Suppliers to disclose relevant information during a sale, the Consumer should also ensure that they inspect any goods thoroughly prior to any purchase. This becomes of particular importance in circumstances where immoveable property or second hand goods are purchased.
RIGHT TO SUPPLIER ACCOUNTABILITY
A supplier will be liable to the consumer for any loss resulting from the supplier’s failure to exercise care, diligence and skill normally required of a person caring for the property of another, or if the supplier treats the property as his/her own property;
Section 61 (1) of the CPA provides for liability of a supplier. It states that “the producer or importer, distributor or retailer of any goods is liable for any harm, caused wholly or partly as a consequence of—
(a) supplying any unsafe goods;
(b) a product failure, defect or hazard in any goods; or
(c) inadequate instructions or warnings provided to the consumer pertaining to
any hazard arising from or associated with the use of any goods, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be.”
This section is of great importance in the wake of what has been deemed to be the biggest Listeriosis outbreak ever recorded. This section provides for a Suppliers strict liability due to the fact that Suppliers are held to a certain standard and that consumers purchase certain goods with the expectation that rigorous testing has been applied.
The overriding consideration is causation. Did the Supplier’s goods or services cause harm to the Consumer? If so, then the Consumer will be entitled to recourse in terms of the CPA.
WHAT ARE THE REMEDIES AVAILABLE?
Consumers can lodge a complaint to the National Consumer Commission, a body assigned to investigate consumer complaints, as well as the National Consumer Tribunal. Consumers may also approach the applicable industry Ombudsman or any relevant court with jurisdiction should the Supplier refuse to remedy the complaint.
CONCLUSION
The Consumer Protection Act provides a balance between Supplier and Consumer where previously the advantage was greatly shifted to the Supplier. It is important for individuals to be aware of their rights as some Suppliers are still taking advantage of Consumers’ ignorance of the law. Like Rob Liano once said “Knowledge is power? No. Knowledge on its own is nothing, but the application of useful knowledge, now that is powerful”.
SOURCES
- Consumer Protection Act No 68 of 2008
- https://www.news24.com/SouthAfrica/Local/Maritzburg-Fever/caveat-subscriptor-let-the-signer-beware-law-corner-20160503
- http://www.saconsumercomplaints.co.za/your-rights/
- https://www.labourguide.co.za/consumer-protection/1170-the-consumer-protection-act-your-guide-to-consumer-rights-a-how-to-protect-them
- https://www.privateproperty.co.za/advice/property/articles/latent-and-patent-defects-and-the-cpa/465
