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Exercise your right to a fair gym deal

South Africa
Paying upfront for fixed-term contracts doesn’t necessarily mean you have to forfeit all your money should you cancel, says Georgina Crouth.

It's taken the world by storm: CrossFit, the trendy – and apparently addictive – strength and conditioning programme that involves Olympic-level weightlifting, strongman-type events, aerobic exercise and a litany of Facebook fails. Its unofficial motto: “Strong is the new skinny”.

Detractors denounce the regimen for its random machismo, contriving dangerous routines and having a cavalier attitude towards injury (most notably rhabdomyolysis, a ­potentially fatal condition caused by catastrophic muscle breakdown).

A 2013 Ohio State University study, published in the Journal of Strength and Conditioning Research in 2013, largely endorsed CrossFit’s exercise methods, but it questioned the pressure to “keep up” for fear of participants appearing weak. And it lost 16% of its subjects to injury.

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Reebok hosted the CrossFit Africa regional individuals and team competition in 2013 at the Standard Bank Arena, Johannesburg. Picture: Motshwari Mofokeng/Independent Media

Another Ohio study reported CrossFit injury rates at 3.1/1000 hours trained – similar to sports such as Olympic weightlifting, power-lifting and gymnastics.

Devotees of this “functional fitness” rave about their improved form and the competitive nature of the workout: their strength, stamina and flexibility.

CrossFit participants proudly wear T-shirts depicting a mascot they call Pukie. Another popular shirt features Uncle Rhabdo, a clown with his bloody guts and kidneys falling out.

When he signed up for a three-month CrossFit contract with the Claremont gym, ­Yazeed Kamaldien wanted to get in shape: he had no idea how much he’d hate it.

So he wanted to cancel. The gym, though, insisted he wasn’t due any refund.

He told me: “I think CrossFit should change their refund policy from no refunds to actually giving people refunds if they terminate contracts

“They are so arrogant and just hide behind fine print and keep R2000 that I have already paid for April and May, while I don’t even want to continue with their service.”

I wrote to CrossFit, asking them to clarify their position, because the Consumer Protection Act says fixed-term contracts can be cancelled on 20 business days’ notice, and the supplier is entitled to charge a “reasonable” cancellation penalty.

Chris Oman, the head coach and general manager of Cape CrossFit, responded: “(Yazeed) was informed of how the workout programme works, how the membership options work, and how we require a three-month commitment period from any member, partly due to us putting together ‘extra sessions’ for the new members at the start of their membership, called our Basic Course.

“Yazeed continued to do our full Basic Course, which entails five more sessions of our technical learning for our training programme and a few classes before he decided to cancel. Yazeed had chosen to rather pay three months upfront for his membership.

“My question here is genuinely out of interest: if you buy a three-month bus pass and choose to stop using it after a month, can you ask for a refund?

“If you purchase a three-day entrance pass to a theme park, can you choose to ask for a refund after a day? If you enter a 12-month service contract with Vodacom to use their lower rates for a phone, and then stop using it after three months, can you ask for a refund/cancel?

“If I chose to lease a car for let’s say 24 months, can I suddenly cancel the lease with 20 days’ notice even though I’ve signed a 24-month agreement, because I don’t feel like driving the car?”

Well, actually, cellphone contracts are not commensurable with gym membership because you’re not getting a device thrown into the mix. And bus or plane tickets are generally non-transferable due to security issues – but usually you’re refunded a portion of the price.

Oman also asked: “Are you telling me that close enough to all gyms in South Africa are using terms that are against the Consumer Protection Act?”

This is a direct copy/paste from the terms of Virgin ­Active: “We don’t want you to go, but if cancelling is the only suitable option and if you’re still in the initial period of your membership, you can ­cancel by paying a cancellation fee that is calculated off the remaining amount still owing on your contract. Discuss your circumstances with your club and we’ll do everything we can to help.”

Despite his reading of the terms, Virgin Active is compliant with the CPA: it charges a reasonable cancellation penalty and offers members a two-month freeze option in case they want to reconsider.

“I believe that we are acting 100% fair in this situation, and that Yazeed was very well aware of what he was signing and paying for.

“I also feel that our membership terms are very fair and liberal; in fact, more liberal than most memberships at any gym in South Africa.

“You are more than welcome to correct me, and if you claim that our terms are indeed unlawful according to the Consumer Protection Act, I will obviously need to get my team of lawyers together to figure out how to correct our membership agreement.”

Not being a lawyer, I contacted Marlon Shevelew, and the director of Marlon Shevelew and Associates clarified the issue.

“The CPA says you must give 20 business days’ notice because it is a fixed-term agreement, and then they can charge the reasonable cancellation fee using the regulation stipulations as a guideline.

“It is not the same as a month-to-month bus pass, in the sense that you are penalised for cancelling early, but that penalty will depend on a number of things,” Shevelew told me.

“The starting point, as with any agreement, is the terms of the agreement itself. While the Consumer Protection Act will assist a consumer who has entered into an agreement that falls foul of its provisions, most suppliers are, by now, aware of the fact their agreements are required to comply with the CPA, and have adjusted their agreements accordingly.

“The consumer must, therefore, refer to the agreement that he/she signed to see what it says about early termination as a starting point.

“Over and above the agreement are the provisions of the CPA, which cannot be ­contracted out of.

“If the consumer finds him/herself party to an agreement that falls foul of the CPA, the provisions of the CPA will apply to the transaction, irrespective of the terms of the agreement.

“Should the consumer elect to cancel the agreement before the expiry of the fixed term, the consumer will remain liable to the supplier for all amounts owed in terms of the agreement up until the date of cancellation.

“In addition, the supplier may impose a reasonable cancellation penalty with respect to any goods supplied, services provided, or discounts granted to the consumer in contemplation of the agreement enduring for its intended fixed term.

“While the CPA specifies the penalty must be reasonable, there is no set penalty in the CPA, and this must be determined by the supplier. If the consumer feels the penalty is unreasonable, they should take this up with the supplier or refer the dispute to one of the bodies established in terms of the CPA.”

Kamaldien is entitled to his refund – at least a portion of that final month of membership.

CrossFit might want to encourage members to “stay the course”, but it cannot refuse to refund those who choose not to.

* Georgina Crouth is a consumer watchdog with serious bite. Write to her [email protected]

Follow her on Twitter: @askgeorgie

The Star

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