Specific matters regarding the Consumer Protection Act No. 68 of 2008

Cancellation of advance orders?

A consumer has the right to cancel an advance order however a supplier may require a reasonable deposit and charge a reasonable fee should the consumer cancel an advance order.

In determining a reasonable fee the following must be considered:

the nature of the goods or service;
the notice period of cancellation;
the possibility to obtain another consumer; and
the general industry practice.

Take note: a consumer does not have the right to cancel an advance order in terms of the Consumer Protection Act No. 68 of 2008 (“Act“) (there may be other rights i.e. in terms of a clause in a contract) if the order is regarding “special-order goods” which is defined as goods that a supplier expressly or implicitly was required or expected to procure, create or alter specifically to satisfy the consumer’s requirements.

Goods delivered without being previously inspected by the consumer:

If goods are sold to a consumer based solely on the basis of a description or sample, or both, provided by the supplier, the goods delivered to the consumer must in all material respects and characteristics correspond to that which an ordinary alert consumer would have been entitled to expect based on the description or on a reasonable examination of the sample, as the case may be.

If a supply of goods is by sample, as well as by description, it is not sufficient that any of the goods correspond with the sample if the goods do not also correspond with the description.

The consumer is entitled to reject all the goods in the instance that it does not comply with the aforementioned.

What must the delivery man do?

Deliveries must be delivered at the location, date and time as agreed to. The consumer has the right to reject any delivery not in accordance with the aforementioned.

Furthermore the consumer must be allowed to inspect all goods delivered.

Advice: It is strongly advised that a delivery note be signed by the consumer which, amongst other things, states that consumer confirms that:

he was given sufficient time to inspect the goods;
delivery of the goods occurred at the agreed date, time and location;
all the goods delivered match the description and/or sample previously supplied and/or if the goods are special-order goods that the goods comply with the material specifications of such special order;
the consumer did not notify the supplier of the intended purpose of the goods alternatively in the instance that the consumer did notify the supplier of the intended purpose of the goods, the goods delivered satisfy such purpose;
the goods were delivered in the correct quantities; and
the goods were not delivered as a result of any direct marketing (see below “What is direct marketing?”).

All delivery personal must provide identification upon request.

What is plain language?

Any agreement, notice, document or visual representation provided to a consumer must be in plain language.

Any agreement, notice, document or visual may be said to be 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 notice, document or visual representation without undue effort.

Hint: at all times deal with a consumer as if this was his first time obtaining goods or services from you and remember the test for plain language is specific to each person so take the extra time to explain your various terms to your clients especially if you are dealing with someone who is conversing in their second language.

Non compliance may result in a particular clause or agreement being void.

Marketing “do’s” and “don’ts”

In general a supplier must not market any goods or services:

in a manner that is reasonably likely to imply a false or misleading representation concerning those goods or services; or
in a manner that is misleading, fraudulent or deceptive in any way.

A supplier must not engage in “bait marketing” which is advertising any particular goods or services as being available at a specified price and in such a manner that it may result in consumers being misled or deceived in any respect relating to the actual availability of those goods or services at that advertised price.

Furthermore a supplier must not engage in the practice of “negative marketing” which entails that goods or services will be supplied, or an agreement or modification will automatically come into existence, unless the consumer declines such offer or inducement.

What rights do consumers have with regards to service?

Consumers have the right to demand quality service which includes the right to:

timely performance and timely notice of any unavoidable delay;
service which is in a manner and quality that persons are generally entitled to expect;
goods, that are used in any installation, being free of any defects; and
that any property of the consumer made available to the supplier for the purposes of rendering the services being returned to the consumer in a condition at least as good as the condition upon which such property was provided to the supplier.

Should a supplier fail to perform any service to the standards as aforementioned the consumer is entitled to require that the supplier remedy any defect or refund the consumer a reasonable portion of the price paid.

What rights do consumers have with regards to goods?

Every consumer has a right to receive goods that:

are reasonably suitable for the purposes for which they are generally intended;
are of good quality, in good working order and free of any defects;
will be usable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and
comply with any applicable standards set under any other public regulation.

In addition to the aforementioned, if a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier:

ordinarily offers to supply such goods; or
acts in a manner consistent with being knowledgeable about the use of those goods,

the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

In the instance that the goods fail to comply with the aforementioned the consumer may, without penalty, within 6 months demand that the goods be repaired, replaced or that the consumer return the good and receive a refund.

The aforementioned will not apply if the consumer has been specifically informed that the particular goods are supplied in a particular condition and the consumer expressly agreed to accept the goods in such condition.

When may you be held liable for damages caused by goods?

The producer or importer, distributor or retailer of any goods is liable for any harm caused wholly or partly as a consequence of:

supplying any unsafe goods;
a product failure, defect or hazard in any goods; or
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.

Liability of a particular person in terms of the aforementioned does not arise if:

the unsafe product characteristic, failure, defect or hazard that results in harm is wholly attributable to compliance with any public regulation;
the alleged unsafe product characteristic, failure, defect or hazard:
- did not exist in the goods at the time it was supplied by that person to another person alleged to be liable; or
- was wholly attributable to compliance by that person with instructions provided by the person who supplied the goods to that person;
it is unreasonable to expect the distributor or retailer to have discovered the unsafe product characteristic, failure, defect or hazard, having regard to that person’s role in marketing the goods to consumers; or
the claim for damages is brought more than 3 years after the claim arose.

The harm for which a person may be held liable for includes:

the death of, or injury to, any natural person;
an illness of any natural person;
any loss of, or physical damage to, any property, irrespective of whether it is movable or immovable; and
any economic loss that results from harm contemplated above.

14 June 2011