Tom goes to a car parts dealership to purchase new brake pads for his vehicle. He could not bring the vehicle along so he simply walks in and tells the shop assistant the size and type of the brake pads he requires. After a while the shop assistant emerges from the storeroom where after he informs Tom that he has found the desired brake pads. The assistant immediately packs the brake pads and after paying, Tom confidently walks out. Upon his arrival at home, Tom’s heart sinks after the mechanic informs him that the brake pads he purchased are small and of poor quality. Tom is baffled.
Let us talk about Thembi. She visits a corner store and buys a bottle of milk. She immediately leaves and walks towards the taxi rank to catch a taxi home as it was getting dark. As she approaches the taxi rank, she discovers that the money she used to buy milk was actually her last coins meant to cover the taxi fare home. She quickly returns to the corner store and asks to return the milk for a refund, but the shop owner refuses to take back the milk nor give her a refund.
The primary piece of legislation that provides for consumer related matters is the Consumer Protection Act 68 of 2008 (CPA). Amongst its most prominent provisions are those regarding the rights and obligations of consumers and suppliers alike when it comes to the issue of returning goods. The CPA is a law and has the force and binding effect of law, therefore suppliers may not seek to craft their returns policies in a manner that violates the spirit and purport of the CPA. Some of us have seen in the downtown CBD areas where some shops display ‘No Refund’ signs, in a ploy to hoodwink unsuspecting consumers from demanding a refund after they have returned defective goods.
The CPA provides for the consumer’s right to return goods in certain circumstances, and we will briefly point them out hereunder.
The first instance is provided for in terms of Section 16 of the CPA, where a consumer may rescind a transaction without reason or penalty, within 5 days (cooling off period) if the transaction was as a result of direct marketing. The consumer must notify the supplier in writing or in other recorded form, after which the goods must be returned and the supplier must refund any consideration (payment) received in respect of that transaction within 15 days.
Secondly, in terms of Section 20 of the CPA a consumer may return goods where the transaction was such that the consumer did not have an opportunity to inspect/examine the goods before delivery and upon delivery the consumer finds out that the goods are not of adequate quality for the purpose for which they were purchased or that the goods do not conform to the specifications that the supplier was given before the purchase and delivery.
Third, in terms of Section 55 (2) a consumer has a right in the following respects:
(2) Except to the extent contemplated in subsection (6), every consumer has a right to receive goods that—
(a) are reasonably suitable for the purposes for which they are generally intended;
(b) are of good quality, in good working order and free of any defects;
(c) will be useable 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; …
The above section [55(2)] goes hand in glove with Section 56, which provides for the implied warranty of quality. Provided that the goods supplied do not conform to the provisions as mentioned in Section 55 (2) above, within 6 months of purchase the consumer may return the goods (at the expense of the supplier) and demand repair, replacement or a refund depending on the circumstances and the type of goods.
Regarding the second incident in our opening remarks, sometimes suppliers may lawfully refuse to accept the return of some goods. This is the case especially with most foodstuffs and some clothing items. Section 20 (3) (a) of the CPA limits the right of consumers to return some goods if ‘for reasons of public health or otherwise, a public regulation prohibits the return of those goods to a supplier once they have been supplied to, or at the direction of, a consumer.’ The motivation behind is that sometimes out of sheer criminality and/or nuisance someone can buy a bottle of milk, go outside with it and contaminate it then return it and demand a refund. If taken back, an innocent shopper may come and buy that same bottle of milk which is now back in the fridge and after consuming it, the innocent shopper may fall sick and then sue the shop owner. This however must be distinguished with a situation whereby after buying a bottle of milk, a person realizes that the milk is actually way past the Best Before date, in that case a consumer may return the bottle of milk and swap it for another fresh one.
Van Deventer & Van Deventer Incorporated - Civil Litigation Attorneys in South Africa
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