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The report by the National Consumer Commission (NCC) on the time share industry could be completed before the end of the month, according to its spokesperson Trevor Hattingh.
“The main processes of the inquiry have been concluded and the panel is currently drafting their report, which needs to be approved by the commissioner. We expect to receive that report before the end of this month. As soon as it is approved, we will communicate the findings and recommendations to the public,” he told City Press.
This followed the NCC’s public hearings into the industry. They were conducted in several cities across the country last year.
The commission had been inundated with queries and requests for participation in the hearings, mostly from irate consumers who felt locked into contracts and/or ripped off by the time share industry.
Time share industry body Vacation Ownership Association of Southern Africa (Voasa) declined to comment. A spokesperson referred City Press to its last press statement, which it issued in November last year, which read: “At the request of the deputy commissioner of the NCC, Ms Thezi Mabuza, Voasa and its members have agreed to decline any media engagement at this stage. This decision has been taken out of respect to the NCC and the NCC inquiry panel for their dedication in working towards reconciliation, which Voasa is confident will yield a positive outcome for all.”
GETTING OUT OF TIME SHARE CONTRACTS
While the NCC has been collating its findings, Trudie Broekmann, an attorney at Trudie Broekmann Attorneys specialising in consumer law, was taking on clients keen on getting out of what they claimed were unfair contracts.
Broekmann said the number of clients on her books for this case had ballooned to 156 currently. Many members of the public had been in contact with her. She currently charged R4 350 to get someone out of their contract.
There had been a mixed response to her letters, but had some success. In certain cases, there had been written confirmation that the company accepted the cancellation. Some did not respond to the cancellation letter and adopted a strategy of stonewalling.
“But this doesn’t matter. If you have proper legal grounds for cancellation, then the effect of the cancellation letter is that the contract is cancelled, whether or not that is accepted.
“What is miserable for my clients though, in certain cases, is that despite the cancellation, the time share company keeps the debit orders in place, or has got debt collectors to harass them. But then I send them a letter which highlights section 68 of the Consumer Protection Act (CPA) which says a supplier may not victimise a consumer who exercises his or her rights under the law,” she said.
It was difficult for the lay person to get out of their time share obligations because contracts were often structured to be in perpetuity.
“With a contract like that you need legal grounds to cancel. Instead, the consumer needs to demonstrate that there has been breach of contract by the other party or a defect in the contract. I am relying on a variety of legal grounds that are based on statutory rights as well as contractual principles.”
Broekmann said the time share company was often in breach of contract.
“Sometimes, up to six months after I send the cancellation letter, I get a letter back offering the client a guaranteed booking and trying to get them back. I added up one of my client’s total time share costs and he paid around R250 000 and had never been on holiday,” she said.
TAKING ON GIANTS
Broekmann was waiting for the NCC’s report before she launched her joint action on behalf of her clients. Her targets include African Club Innovations, Quality Vacation Club, Flexi Club and The Holiday Club. The aim would be to fight for her client’s money to be refunded.
“I consulted a senior advocate who was involved with the Transnet class action. The advice to me was very clear: Don’t go the class action route, rather launch a joint action,” she said.
In a class action, the group of people an attorney is representing is defined and the court registers these parameters. Whatever the outcome, it binds them all. In a joint action, all the plaintiffs have to be named.
“I plan to do an example case in the Pretoria High Court and, if that is successful, I will follow on with a joint action.”
Unfortunately, many of her clients signed on the dotted line before the CPA came into effect on March 31 2011. However, she pointed out that while the wording of the time share contract did not need to comply to the CPA, these consumers were still entitled to a response and good service under the CPA.
Broekmann recommended that those who wanted to get out of their time share contracts approach an attorney.
“They can go to any lawyer, who can do it effectively. I train on the CPA for the Law Society and during those seminars I explain the grounds that I use to cancel. I am not exclusive about it.
“The industry is huge: more than 750 000 South Africans have time share. That’s far more than the number that I can assist, so approach any attorney who is familiar with the CPA.”
She said the NCC’s intervention in resolving the matter was crucial.
“The NCC needs to move ahead swiftly and effectively. South African consumers need it.”
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