Consumer protection regarding defective goods

Nov 12 2013 16:27
Johannesburg - With Christmas and the holiday season coming up, consumers will be shopping up a storm for their loved ones.

But what are their rights when they find that the tablet, earings or toy they bought doesn't even last six months?

Consumer Goods and Services Ombudsman, Adv. Neville Melville said the Consumer Protection Act (CPA) has ushered in a new era of consumer-centricity and imposes a built-in or automatic warranty (guarantee) on all goods sold.

"Under the CPA, goods must be reasonably suitable for the purposes for which they are intended, and must be of good quality, in good working order and free of any defects," he explained.

"They must also be useable and durable for a reasonable period of time."

Melville said the CPA brings about a drastic change to the South African law because it includes the requirement that goods must be useable and durable for a reasonable period of time, embodying a new right not recognised under the common law.

"For the first time in South African law, the consumer has a right to continued good quality," said Melville. "In the case of something like a television. fridge or a car, this might mean it should last for a number of years."

If the goods you've bought fail to comply with any of these requirements within six months of being delivered, you are entitled to return them, and ask for one of the three R's - to have the item repaired, replaced or to get a full refund of the price paid.

It is not clear from the CPA what the remedies are if the goods are not durable beyond six months. This is something that will need to be clarified by the National Consumer Tribunal or the courts.

"It's important to note that a supplier cannot force a consumer to choose to have the goods repaired, if the consumer prefers a refund or replacement," said Melville.

"The consumer can insist on a cash refund instead of a store credit or vouchers or on a replacement with something similar at no additional cost."

The supplier may also not force the consumer to purchase a more expensive model or brand and must cover the costs of repairing, collecting or replacing the defective goods.

As always, there are exceptions to the rules, and the rules around refunds do not apply if the consumer was specifically told that the particular goods were offered in a specific condition.

"If you're buying second hand goods, for example, keep this in mind," he warned.

The rules also don't apply if the goods were altered by the consumer contrary to the instructions or tampered with by the consumer.

"Remember that not every defect entitles a consumer to return goods for a refund or replacement," noted Melville.

"The defect must be material - or it could be an imperfection which renders the goods less useful."

The rules regarding refunds apply irrespective of the store's refund policy or the terms of the manufacturer's guarantee.

"In other words, the store's refund policy or the terms of the manufacturer's guarantee cannot override the CPA requirements, but they can go further than or offer more rights to the customer than the CPA does," added Melville.

For example, a store may accept goods returned for a refund within a specific period and with their original packaging even if there is nothing wrong with them and the customer has merely changed their mind, although the CPA only requires a supplier to accept a return if there was something wrong with the goods.

Things retailers look out for before accepting goods for refund

Original packaging

In the case of a defect, the CPA does not require a consumer to return the goods in their original packaging in order to get a refund.

The suppler may, however, insist upon the return of the goods in the original packaging if the goods are returned because the consumer has merely changed their mind and there is nothing wrong with the goods and they are permitted to return the goods in line with the store's returns policy.

Till slips

While the CPA makes no specific reference to till slips, the high levels of crime in South Africa and the fact that the CPA implied warranty is only for six months are reasons justifying the requirement of the production of a till slip when exchanging an item.

But it's also up to suppliers to assist by keeping proper records.

Condition of the goods

The supplier is likely to consider whether the condition of an item suggests it is a recent purchase and may try to determine whether the defect could have been caused by the customer.

"If you have any queries about your legal rights as a consumer or wish to complain about a supplier, you can contact the CGSO for assistance," said Melville. "Each case is treated on its own merits, is independent and free of charge."



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