Lessons for consumers: Prove your case and read the instructions

Johannesburg - Recent rulings by the consumer goods and services ombudsman (CGSO) – including those involving contaminated food, lawnmower injuries and a leather lounge suite – could help consumers better understand their rights, a legal specialist said on Monday.

"The recent rulings show that it is very difficult for consumers to prove their cases in a hearing before the consumer goods and services ombud," said attorney Ryan Tucker, whose areas of specialisation include compliance and regulatory legislation.

"The complainants haven't necessarily got sufficient evidence or they haven’t proven the legal requirement to establish their case."

Tucker said consumers needed to ensure their complaints could be substantiated.

"When bringing your claim to the ombud or to any of the other established dispute resolution fora, they are not there to receive hearsay evidence.  Rather the consumer must bring concrete proof or evidence."

Tucker’s comments came in the wake of a ruling in a case in which a woman complained that after eating a food product with rat faeces in it, she was affected "physically and emotionally".

The case was detailed in a report by the ombudsman issued towards the end of last month.

While the supplier "only offered the complainant a R75 voucher and a hamper”, the complainant wanted compensation of R30 000.

However, the ombudsman found that while it was "common cause that there were rat faeces in a packet of the product", it could not be proved that the contamination happened while it was in the supplier’s possession.

The company has conducted a full investigation at the factory and neither they nor their contract pest control company have found any trace of rodents in the factory.

Instead an environmental health practitioner and pest control operator found a small opening of about 1cm at the top of the packet that show "indications of rodent activity and gnawing damage".

The ombudsman ruled that it was unlikely the hole could have gone unnoticed during manufacturing, processing or storage – thus suggesting it was more likely to have happened in the consumer’s home.

Furthermore, noted the ombudsman: "the 150 kg packet of the product uplifted from the consumer was open and virtually empty". 

"With the greatest respect to the consumer, it is impossible under those circumstances to be absolutely sure of the source of contamination."

Responsibility of the consumer

Referring to another recent ruling which dismissed the complaint of a woman who incurred injuries while removing grass from a lawnmower, Tucker said that the problem, in this case, was that the consumer had ignored warnings in an instruction manual.

"Consumers cannot seek compensation, when they are to blame for what goes wrong," he said.

The woman complained that she had removed damp grass build-up from the machine several times – even though she could not get the product to switch off.  She eventually injured herself.

The ombudsman found that while the consumer had a right to safe, good quality goods, in this case she had "put herself at risk".

Commenting on the ruling, Tucker said that consumers must pay heed to safety instructions.

"While the supplier must ensure that all documents are written in a way that a layman can understand, in 'plain language' – so too is the onus on consumers to ensure that they read all the instructions, safety information and terms and conditions attached to the goods or services and the transaction of such…

"Without this, no recourse is possible."

In general, said Tucker, the Consumer Protection Act offered a high level of protection to consumers if a product or service could be proven to have failed in terms of the legal standards set out for quality or safety.

"The CPA is so protective of the consumer that it will allow the consumer within six months after the delivery of the goods to approach the supplier and obtain one of the three Rs: Repair, replace or refund. "

However, warned Tucker, another of the ombudsman’s rulings for April indicated that there were other factors which would determine whether these remedies would be applied.

Citing the example of a complaint, whereby a person wanted a refund for a lounge suite they claimed was fading in colour, the ombudsman noted that the CPA gave consumers the right to inspect goods before they were purchased and delivered.

Since the complainant had had this opportunity – as well as the fact that an expert found no evidence of a factory fault or defect in the suite – the complainant thus lost the right to receive a refund, said the ombudsman.

"If you have the opportunity to inspect such goods and receive delivery of such goods, you cannot later rely on the 3 Rs," said Tucker.

"This is except if you can prove that the goods had a manufacturing defect that was not capable of being seen during the initial inspection of the goods," the ombudsman in his recent ruling reaffirmed.