The final regulations, which flesh out a lot of the detail in the Act, should have been ‘out’ weeks ago, to give companies time to comply - but they only appeared in the Government Gazette on Friday afternoon, half a day after the Act came into force.
Fail! as my kids would say. And the consequence is that the Dti is going to have to be lenient with companies which don’t comply for the next few months.
Speaking of kids, last week my son became the proud owner of a brand of shoes he and his peers currently consider to be cool.
On the inside of the shoe box, the following is printed: “X shoes are manufactured to the highest quality standards available in the industry. They are under warranty against manufacturing defects for a period of 30 days from the date of purchase. Any defective merchandise claim from the customer must be handled by the retailer.”
I’m quite sure the same shoes are being sold in the same box today, but that warranty is now absolutely meaningless, because Section 56 of the Consumer Protection Act gives consumers the right to return any defective goods to the supplier within SIX MONTHS of purchase. And the consumer gets to decide whether they want a refund, replacement or repair.
And if they opt for a repair and the product fails again within three months, the supplier is obliged to refund the customer or replace the item.
In other words, the supplier can’t insist on repeated repairs, which, being the cheapest option for the supplier, is what’s been happening in the marketplace up to now. What’s also been happening is that some suppliers on the dodgier end of the spectrum have refused to take back defective goods back at all.
(Remember, this Act does not compel suppliers to take back goods at all if they are not defective.)
I predict this ‘implied warranty of quality’ will be one of the most contentious, problematic aspects of the Act, because the Act requires the goods to be “in good working order and free of any defects” for at least six months, “having regard to the use to which they would normally be put to…”
In other words, if - as happened in a case that came my way a few years ago – a rather large husband leaps onto the armrest of a sofa in order to kill a bug that his wife was terrified of, and the armrest breaks, the supplier could quite rightly refuse to honour a warranty claim, as the armrest was intended to support an arm, not the full weight of a 150kg man.
As it happened, the man in question confessed to his moment of madness and expected to pay the lounge suite manufacturer for the repair, but the manufacturer insisted on doing it free of charge as a goodwill gesture.
That’s the best case scenario in consumerland – a totally honest consumer and a supplier who has an extremely high regard for his customers and is willing to go the extra mile to make them happy.
But it’s not always that way, I’m afraid. So I anticipate suppliers insisting on having allegedly defective goods assessed and then telling the consumer that they have discovered signs of user abuse. And that, sorry, but you can’t have that repair, replacement or refund.
Then what? Then the consumer will have the right to complain to the National Consumer Commission – details below – and that body will have to make the tricky call on whether the problem was caused by defect or abuse.
Like most pieces of legislation, the Act is silent on many practical issues.
In this case, it says nothing about the supplier’s right to examine goods that consumers return, demanding a refund, repair or replacement.
The PRO of a large retailer contacted me last week, asking if they’d still be allowed to have such products assessed. “For example, people buy drills which are labeled as being for domestic use, and they use them on big commercial jobs, and then they bring them back, broken,” she said. “We can only determine abuse if we open up the drill – the customer service desk personnel can’t make that call,” she said. “And if we do send the product for assessment, what time period would be considered fair – seven working days?”
Who knows?
The more expensive the item, the trickier this section of the Act will be to apply.
Crs are going to be the biggest problem. Clearly if someone returns a car claiming that it’s defective in some way, and demands a refund, the dealer is going to insist that the car be properly examined.
Again, the Act doesn’t make provision for this, or require the supplier – the dealer in this case – to ensure that the consumer has alternative transport during a process which could take weeks.
Sam Robertson of consumer law firm Roberton Teuteberg Kirk said many companies were concerned that “vexatious consumers” would deliberately construct defects in order to get refunds in terms of Section 56.
If the supplier can prove this, the consumer could be charged with fraud, he said.
Now there’s a sobering thought. There are indeed a number of ethically challenged consumers out there who will no doubt seize on this Act as a means to get companies to give them recourse they are not entitled to.
They are undoubtedly a tiny minority, but they have the potential to muck it up for the rest of us in terms of ‘extra mile’ behaviour on the part of companies.
Ultimately, only when this Act has been tested by real cases, and precedents set, will it offer full guidance to consumers and suppliers alike.
Meanwhile, if you want to enjoy the rights and protections of the Act, get into the habit of documenting your consumer experiences. That begins with keeping all your receipts - including supermarket slips – and making careful notes of your dealings with companies.
You’d think that now that the Act is a reality, consumers would be able to type the words “National Consumer Commission” – the Act’s prime enforcement body – into an Internet search engine, and its website would top the search results’ list.
But you’d be wrong. At the time of writing, there was no website and no email address available.
Even in the final regulations, published on Friday afternoon, in the section outlining how a consumer can lay a complaint of an alleged contravention of the Act, there are big blanks where the physical address, email address, website and postal address should be.
In the meantime, here’s a phone number and fax number for the Commission offices: 0860 266 786 or fax: 0861 515259. - Pretoria News