If you haven’t been informed of a defect, a supplier cannot insist on enforcing a voetstoots clause, writes Georgina Crouth.
It's a bargain, so the purchase is at your own risk, you don’t get a guarantee nor a refund. Such terms of sale still seem to be widespread - especially at factory outlets and clearance stores.
Consumers have grown accustomed to the fact that if you purchase goods (furniture, clothing and the like) at such stores, there might be something wrong with it, simply because you’re getting a cheapie.
But whether it’s a “regular” store or a clearance outlet, suppliers aren’t legally allowed to insist on voetstoots sales because the clause has largely been given the boot since the Consumer Protection Act came into effect.
Voetstoots essentially means that a sale is conducted entirely at the buyer’s risk - “warts and all”. Since April 1, 2011, sellers haven’t been able to hide behind the voetstoots clause preventing claims from buyers because the CPA provides that every transaction falling within its scope will have an “implied warranty of quality”. So, all goods are sold with the expectation that they are of good quality (will last at least six months), are in good working order and are free of defects.
And suppliers hellbent on enforcing the voetstoots clause by stamping “no refunds, no returns” are in effect depriving consumers of their rights. Section 48(1)(c) of the CPA states a consumer may not be asked to waive any rights or the supplier’s liability. Any clause that limits a consumer’s rights is considered unreasonable, unfair or unjust.
If defects appear after the sale or if goods are not CPA-compliant, the consumer is entitled to return them within six months. The CPA also makes the seller liable to either repair or replace the goods, or to refund the purchaser.
Suppliers could escape liability for defective goods only if, at the time of sale, the consumer was fully aware of the defects. So, if you’ve bought a shop-soiled appliance and told expressly what was wrong with it, you wouldn’t reasonably have a claim against the supplier.
But if you’ve bought something from a clearance outlet and not informed the goods are defective, the supplier can’t rely on a presumption that they might be.
A reader mailed me last week about Coricraft’s Montague Gardens store in Cape Town, questioning whether they were in fact allowed to insist that “no refunds, no returns” would be entertained. She had bought a couch with no apparent defects from the outlet but the salesperson told her that it couldn’t be returned.
Another upset reader, from Durban, wrote to me about a new bed he had bought from Sleep King in Chatsworth, which failed after a month. Francois Coetzee was then told “sorry, the manufacturer doesn’t provide a guarantee so we can’t help you”.
“I am at the end of my tether as I am getting no joy out of these sales people. The person who sold me the bed told me the manufacturer does not give a guarantee so Sleep King will not assist in any way.
“I bought a double bed on May 28 and after a month the springs were coming through the side of the mattress and they make a terrible noise. I can’t even turn in bed without waking my wife up at night.
“I noticed on the invoice was written ‘no warranty and no guarantee’ in between the description of the furniture. This cannot be correct, as I have only had the bed for a month. I bought a lounge suite, wardrobes, kitchen units and a double bed last year, so I was supporting this branch.
“I’ve been trying to contact the branch for the past two days and no one’s getting back to me. I’ve ended up loaning a bed from my daughter as this bed is so uncomfortable to sleep on. Please help.”
I asked consumer specialist Trudie Broekmann about both issues.
“As long as the CPA applies fully to a transaction it’s illegal to sell any goods on a voetstoots basis or have a policy which doesn’t allow a consumer to return defective goods. This applies across the board - even if you buy sale goods, or from a clearance store, a factory shop, charity shop, vintage or second-hand shop, etc.
“The CPA allows a seller to exclude liability if the goods are not in good working order or fit for their purpose, if they have specifically disclosed the condition of the goods (for example, ‘shop-soiled’, ‘second-hand’ or ‘damaged armrest’) and the consumer went ahead and bought them anyway.
“This appears not to have been done by Coricraft, and consequently the six-month guarantee in terms of the CPA applies. That allows the consumer to return the goods if they are substantially defective or unfit for their purpose, or not usable and durable for a reasonable period, and on returning the goods, the consumer must be refunded the purchase price or the goods must be replaced or repaired at the supplier’s expense.”
Importantly, this right to return goods and claim a refund, replacement or repair overrules any store policy or contractual exclusion put in place by the supplier.
“In both examples, the consumer can return the goods and get a refund, replacement or repair - despite the retailer’s stance.
“I would recommend the consumer insist on speaking to the store manager or in-house legal person of the retailer. If they still have no joy, the consumer should lodge a complaint with the Consumer Goods and Services Ombud.
Fortunately, taking the matter to the ombudsman wasn’t necessary. I contacted the Sleep King branch about Coetzee’s defective bed. At first, the manager told me that it was one of their “budget” items so it didn’t come with any guarantee and Coetzee was made aware of the fact (he says not, the invoice was given in a sealed envelope). When I explained that all goods sold should come with an automatic six-month warranty of quality, the manager backtracked and said they would give Coetzee a new bed or a refund.
Coricraft hadn’t responded by my deadline.
* Georgina Crouth is a consumer watchdog with serious bite. Write to her [email protected]
Follow her on Twitter: @askgeorgie