Whether intentional or not, our mouths sometimes run away with us. As do our fingers. We get carried away in the moment, say something we regret; agree to terms and conditions, without first actually reading them; and allow snake oil salesmen to part us from our money by not reading contracts carefully.
In Themba Mthethwa’s case, his finger trouble cost him dearly. He had saved for a dream getaway with his wife to an island - St Helena, a remote volcanic island once a penal colony where Zulu warriors, Boer soldiers and Napoleon Bonaparte were banished.
Some of those warriors were his ancestors: the trip was not only sentimental, but poignant, on the 100th anniversary of the birth of Ma Sisulu and Madiba.
Mthethwa had booked his flights through a local agent, Flight Centre; as well as a third-party operator, bookings.com, to secure accommodation at the St Helena Hotel. Except he inadvertently booked into the StHelena Hotel in the US. Soon after he’d clicked on the wrong St Helena, Mthethwa realised his error and cancelled. But he had already paid and now needed to be refunded.
Bookings.com wasn’t helpful, so he contacted Flight Centre, which tried to convince Bookings.com to reverse the payment. Bookings.com claimed it had tried, and failed, to convince the US hotel to do the same, then told Flight Centre and Mthethwa, sorry, the hotel won’t co-operate so we can’t help.
“I had no intention to go to California, USA. I was given the name of the hotel by Flight Centre, the amount to pay in ZAR, and the website to use to pay. I did what I was asked to do by Flight Centre,” Mthethwa said.
“I immediately cancelled the booking online and asked for a refund. I also immediately called Hotel St Helena, California, about the error. They informed me they were simply a ‘third party’ and I must speak to http://www.booking.com for my refund. I did that.
“I’m not going to the island for leisure. I want to visit the graves of my ancestors who perished on that island after resisting and fighting British colonialism and exploitation in Zululand. I will not allow this to happen again.”
Mthethwa, a lawyer, views it as unlawful enrichment by both Bookings.com and the hotel, and wants to take it further. But given the complexity of the case, it might be difficult.
Cyber law expert Sylvia Papadoupoulos, a senior lecturer at the University of Pretoria, says while there are many issues with this case, she doesn’t believe Flight Centre acted incorrectly.
“Flight Centre are not wrong. In fact, they went above and beyond to assist the consumer - forgoing commission and suggesting he could get accommodation cheaper via another channel and then that backfired.”
She says online platforms work according to different business models, where their behaviours range from merely allowing users to look for information supplied by third parties, to facilitating contractual transactions between third-party traders and consumers or advertising, and selling different kinds of products and services including digital content.
“Booking.com is a platform that facilitates a contractual relationship between a third-party trader and consumers for hotel accommodation. They are a company registered in the Netherlands.
“The hoop to hop through here is the fact that Bookings.com only facilitates the contract that is ultimately concluded between the hotel and the consumer. As they provide a service against remuneration, their conduct will be regulated by both EU consumer law and/or South African consumer law.”
That means, their platform needs to comply with the following:
That certain minimum pre-contractual information be made available to consumers.
That there’s an opportunity to review your transaction and make corrections.
That you agree to the terms and conditions of the contract.
That payment liability is made clear when you click on the agree/continue icon.
That there is a confirmation sent to the consumer when the transaction is complete/processed.
And that any disclaimers/special conditions are clearly brought to the consumer’s attention - in this case, that it’s not refundable.
“If all the above requirements (and others not mentioned) are met and the consumer concludes the contract, there is a valid and binding contract,” she notes.
Both South Africa’s Consumer Protection and Electronic Communications and Transactions Acts grant consumers the right to cooling off/withdrawal, but those rights are not applicable for this transaction.
Papadopoulos says the right to cooling off under the CPA only allows a consumer to rescind a transaction if it resulted from direct marketing, and ECTA’s cooling off right does not apply to accommodation, transport, catering or leisure services (EU law has similar exclusions).
But, she says, Section 17 of the CPA gives consumers the right to cancel any advance booking, reservation or order for any goods or services to be supplied, and a supplier who makes a commitment or accepts a reservation to supply goods or services at a later date may require payment of a reasonable deposit and impose a (reasonable) charge for the cancellation of that order or reservation.
“The question is, who are you going to enforce this against?” she asks.
“If the hotel was in South Africa, it would be easy and they would have to comply and the consumer could use all the mechanisms under the CPA.
“The hotel is, however, in the USA and it would seem that this non- refundable payment is a common practice.
“Bookings.com Netherlands is definitely a supplier of a service and the hotel is also a supplier - but even if you obtain a court order here, you need to have it enforced.”
Her suggestion is for Mthethwa to try to sell the accommodation to someone else, or to try working something out with the hotel.
I tried, by contacting both the hotel and Bookings.com. Radio silence from the hotel and Bookings.com, which had initially promised to reconsider the matter, then stopped responding to my queries.
So, here’s the advice: if you are using third-party sites that are clearly operating internationally, be very sure about your booking before you click on “accept”. Because your finger trouble could end up costing you much unnecessary stress and money.
* Georgina Crouth is a consumer watchdog with serious bite. Write to her at [email protected], tweet her @georginacrouth and follow her on Facebook.
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