Johannesburg – Good riddance to 2016. For many people, it was an annus horribilis. With our economy in the doldrums, 2017 is not predicted to be any easier.
Compound the country’s domestic issues with global warming, terror and the tumultuous state of world politics, and things can feel somewhat overwhelming.
But humans are intrinsically an optimistic species and we’re buoyed by the new year. Personally, I’m overjoyed to see the back of a tough year and have taken a few sobering lessons from 2016.
As a consumer, one of my most startling wake-up calls came at the very end, in December. While searching desperately for a gardening service, I was alarmed to encounter a shoddily drafted contract potentially so onerous on the client that I resolved to exercise far greater caution before agreeing to any terms in future.
Chancers everywhere
The services rendered by the gardening company include the usual maintenance spiel of mowing, trimming, turning of flower beds, pool cleaning and so forth, including some optional extras. No problems there until you reach clause five, in which the client agrees to a two-month termination notice (contrary to the Consumer Protection Act, which requires a 20-business day notification period).
That “small” matter encouraged me to read what I was potentially signing even more thoroughly.
Those worrisome clauses came a little further down: under section 8, which outlined dispute resolution: “If in the event of a dispute arising between the parties, each of the parties consent (sic) to the referral to the expert determination of any dispute
“The expert shall be an advocate who has practised no less than 10 years at Johannesburg Bar or alternatively an industry expert of not less than 10 years’ experience, such expert to be mutually agreed upon between the parties. Should the parties be unable to agree on an expert, then and in such event the matter will be referred to the Johannesburg Bar Council for such expert to be appointed by them.
“The expert shall act as an expert and not as an arbitrator. The expert’s finding, including an order for the cost (sic). Shall be final and binding on the parties and may, on application, be made an order of court.”
So, the client agrees to either an advocate (and their stiff fees) or an “industry expert”, who will “act as an expert – but not as an arbitrator”?
To borrow from Lewis Carroll’s Alice in Wonderland, it gets “curiouser and curiouser”.
“In the event of (the company) having to instruct an attorney to enforce its right against the client, then client shall pay (the company’s) attorney and own client cost incurred.”
Not signing life away
Alarm bells clanged and I informed the company that I was quite satisfied with their quote but would not be prepared to sign such a contract. They promptly informed me they would not be able to offer a service. No surprises there.
I might be overcautious, but contract law is a vital specialisation and an invaluable skill.
Your new year’s resolution might be to lose weight/tighten your belt, shun sugar, ditch carbs, cut out booze, walk the dogs more regularly or go to gym. These are all jolly worthy lifestyle changes but as an act of self-preservation, always – always – read the terms and conditions of any contract.
Whether it’s for a gardening service, timeshare, a lease agreement, a “loan agreement”, a building project (however big or small), or a car rental – know what you’re signing up for so you aren’t in for any surprises.
Plain English... or an official language
You have the right to insist that the terms of any contract be explained in layman’s terms – plainly and understandably. And those terms cannot be unfair or unnecessarily onerous either. Precedent for this was set on October 23, 2012 in the Durban High Court, which was lauded as a victory against legalese and unfair contract terms.
A Mr Dlamini had bought a second-hand car but four days later the vehicle suffered a catastrophic mechanical failure. It was not driveable and had to be towed back to the dealership, so he rightly asked for a refund. But his financing bank instituted a claim for the car’s return and other associated costs, trying to put the onus on the client by arguing that he should have been more careful about signing that contract and that he’d indicated that he agreed to its terms.
But what if he didn’t understand the implications of what he was signing?
Judge Dhaya Pillay ruled that binding Dlamini to the contract’s terms would amount to unfair discrimination. Importantly, the National Credit Act gives consumers the right to documents in their official language and in plain language.
The NCA also gives consumers the right “to be informed by reasonable means of the material terms of the documents he signs”.
Creditors must be able to prove they have taken reasonable measures to inform consumers of contractual terms and their contracts must comply with the law.
So that gardening service company is in breach on a number of levels. I’m rather glad I didn’t sign.
Read your terms and conditions this year. It will save you far more aggravation than the discomfort of a couple of extra kilos, a hangover and a shocking diet will bring you.
* Georgina Crouth is a consumer watchdog with serious bite. Write to [email protected]. Follow her on Twitter @Consumerstar