5 April 2022

Is your sale protected by the Consumer Protection Act?

The Consumer Protection Act (“the Act”) is this piece of legislation that everyone knows about and spews it everywhere when they find themselves in a sticky situation with shop owners or suppliers. But many consumers do not actually know what their rights are in terms of the Act.

Likewise for suppliers and shop owners. Some of them tend to follow their own onerous rules despite the Act AND get away with it because a consumer does not know any better.

The very purpose of the Act is to protect those vulnerable consumers and to promote a fair, accessible and efficient marketplace for all. The Act is great in doing so by affording you with certain consumer rights.

So, what are your rights as a consumer in terms of the Act?

But first, when does the Consumer Protection Act apply?

The Act applies to an agreement concluded between a consumer and a supplier in the ordinary course of business.

A consumer is someone who typically buys, uses goods, or services from a supplier. And the supplier sells those goods and/or services to consumers through the use of good old marketing and advertising.

What is the “ordinary course of business”? It is when a supplier continually promotes or supplies goods and/or services to consumers.

For example: when you buy a car from a dealership, it is considered to done in the ordinary course of business but buying a car from your friend’s dad would not. And in the latter, the Act will not apply, and you do not have protection in terms of the Act.

When does the Act not apply?

There are instances where the Consumer Protection Act does not apply to consumer agreements:

  1. The consumer is a business with an annual turnover of R2 million and more or owning assets worth R2 million and more. The annual turnover or assets must amount to R2 million or more when you conclude the agreement.
  2. Employment agreements.
  3. Credit agreements under the National Credit Act.
  4. Where the State is the consumer.
  5. Agreements concluded outside of South Africa.
  6. The agreement is not concluded around the ordinary course of the supplier’s business, e.g., a private sale.
  7. The Consumer Protection Act specifically exempts the agreement.

What rights do you have under the Act? Let’s break it down.

You have 8 general rights under the Act: namely the right to privacy; to choose your product; fair and honest dealing; disclosure of information; fair and responsible marketing; accountability by suppliers; fair value, good quality and safety and to equality.

Let’s look at a breakdown of these rights below.

You have the right to not be discriminated against by a supplier.

You have the right to examine and inspect the goods before making payment. You are entitled to a receipt from the supplier, once a transaction has been concluded.

You have the right to a breakdown of all financial obligations before entering into an agreement with a supplier. You are entitled to dispute any additional costs that you were not made aware of.

You may cancel an agreement in its entirety by giving the supplier notice 20 business days prior to cancelling the agreement. In some instances, you may be subject to a cancellation fee, particularly when you have made bookings or reservations with a supplier.

There is no general right to a refund of goods, especially if you just had a change of heart. This is a luxury afforded to us consumers, but it is not a right.

You have the right to a cooling-off period. This means that you may cancel and/or return goods and/or services within 5 days after receiving the goods without penalty or reason. The cooling-off period only applies to those transactions that were a result of direct marketing. You may also opt out from receiving any marketing.

You are entitled to request a refund or to have a supplier correct a mistake if the supplier renders poor quality goods and/or services or delays completion.

You may return any defective goods to the supplier within 6 months from the date of purchase or delivery. Return of the goods will be at the suppliers own risk and expense. You can choose to have a refund, have the goods repaired or replaced.

What responsibilities does the supplier have towards you?

Their terms in their agreements may not be unfair, unreasonable, and unjust.

A supplier is not allowed to force or manipulate you into entering an agreement. Their agreements must be in plain language, simple, and easy to understand.

A supplier may not contact you outside of the ordinary business hours.

A supplier must inform your or draw your attention to any risk, acknowledgment of facts or indemnities before concluding an agreement with you. All representations of marketing of goods and services must not be misleading or false. A supplier must show you the price, label and description of the goods on the packaging.

A supplier cannot enter into an agreement with you for longer than 24 months unless you specifically agree to a longer period. If the agreement is for longer than 24 months, it must be beneficial to you in some way.

If the supplier oversells goods or overbooks services that they do not have the capacity to fulfill, then you are entitled to a full refund with interest. You are entitled to be compensated for all costs incurred as a result of the supplier overselling or overbooking.

What can you do if the supplier refuses to comply with the Consumer Protection Act?

Firstly, a consumer should approach the supplier with their complaint. Always make sure it is in writing. If you call them on the phone, back up that phone-call with an email.

Always keep records of everything relating to the complaint. It is highly recommended that you keep emails, phone records, names of people you spoke with, reference numbers etc.

Secondly, if the complaint is not resolved, you may approach either the Consumer Goods and Services Ombud, National Consumer Commission or the National Consumer Tribunal. Alternatively, you could approach the consumer court or civil court.

NB: You have 3 years to lodge a complaint or institute legal proceedings against the supplier, before the claim prescribes.

What can shop owners and suppliers do to make sure that their terms and conditions are compliant with the Act?

As a supplier of goods and/or services, make sure that your terms and conditions are compliant with the Act. You can bring the terms and conditions to the consumers attention by placing them on the invoice or receipt, or have a visible sign in your store, or both. If your sale is not protected by the Act, don’t despair. There are common law remedies available to you. You can read about those remedies by clicking on this link.

– Rushni Ebrahim

Have any questions? Drop us a message below and we’ll be in touch!