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Consumer protection act
April/May 2011

The consumer revolution

has begun

The CPA — Consumer Protection Act — has finally swung into gear and BEVAN FRANK summarises some key aspects relevant to retail

The Consumer Protection Act (No 68 of 2008) was signed into law on 24 April 2009 and implemented on 1 April, 2011. The Act has been described as a revolution in consumer rights in South African law and makes our consumer protection laws among the best in the world.

The Act seeks to promote a fair, accessible and sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to prohibit certain unfair marketing and business practices, to promote responsible consumer behaviour, to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements.”

Retailer is a Consumer

The Act defines consumer very broadly — it can include any person (including natural and juristic persons) to whom goods or services are marketed, as well as actual users of the goods or recipients of those services.

An independent retailer can also be a consumer, because a person who enters into a transaction with a supplier in the ordinary course of the supplier's business, is a consumer. But, the Act will not apply to a juristic person (e.g. independent retailer) whose annual turnover or asset value exceeds R3-m.

Franchisees under franchise agreements are also consumers. But, the Act will not be applicable if the retailer is a franchisee and the supplier is a franchisor.

The Act will not apply to a consumer if the consumer is the State, or part of an industry in terms of which the Minister has granted an industry-wide exemption from one or more provisions of the Act.

Right to quality goods

It is important to remember that the Act does not get rid of any of the provisions of contractual law and common law. The Act must be seen in the broader legal context.

  • Consumers have the right to fair value, good quality and safety as well as the right to choose. A consumer therefore has right to choose or examine goods. If a consumer is not afforded the opportunity to inspect the goods delivered, the consumer can return the goods and receive a refund. Alternatively, the goods could be deemed unsolicited goods and will be dealt according to provisions of the Act dealing with unsolicited goods.

  • The goods should be fit for their intended purpose, which means that the goods should be able to function according to the customer’s expectation and as explained to the consumer by the salesperson, at the time of purchase. This includes the colour and size depicted on the packaging — unless the salesperson explained that the content will be different.

  • Goods must comply with relevant standards under the Standards Act, industry code or any other applicable public regulation.

  • Return of goods

    Section 20 of the Act is a vital section for retailers

  • Damaged goods supplied to a consumer may be returned. It does not apply to any goods if, for reasons of public health or otherwise, a public regulation prohibits the return of those goods to a supplier.

  • If the goods fail to satisfy the requirements and standards referred to above, the consumer may return the goods, without penalty and at the suppliers risk and expense, within six months after delivery of any goods to a consumer.

  • Goods may be returned if they do not perform according to the standards that the customer was made to believe it would (e.g. a camping chair that is supposed to take a weight of 80kg, but collapses under 70kg) or differs from what the sample on display or packaging implied.

  • But, goods, including sporting equipment, may not be returned if they have been partially or entirely disassembled, physically altered, permanently installed, affixed, attached, joined or added to, blended or combined with, or embedded within, other goods or property. Thus, if a retailer can show goods have, for example, been physically altered, there is no right of return in favour of the consumer (e.g. running shoes with soles worn out or a cricket bat used for the season).

  • You are not obliged by law to accept goods returned because the consumer changed his or her mind, nor are you obliged to refund them – but, you may prefer to do this out of goodwill and for the sake of good relations.

  • Repairs and warranties

    The supplier has a duty to repair or replace the relevant goods or refund the consumer.

    Implied or express warranties will be taken into account, depending on the circumstances, but statutory warranties take precedence over manufacturer/supplier warranties.

    More information

    For a more in-depth analysis of the implications of the Consumer Protection Act for the sport, outdoor and lifestyle industries, please refer to Bevan Frank’s two previous articles The Consumer is King (part 1) (Sports Trader, June/July 2009) and The Consumer is King (part 2) (Sports Trader August/September 2009). The Department of Trade and Industry has also compiled a brochure on the implications of Refunds and Returns in the CPA, see Their Customer Contact Centre line is 0861 843 384.

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