Are gyms legally entitled to keep debiting members' accounts during lockdown?
Under lockdown, gym members are no longer rating their fitness clubs on their facilities, trainers or range of classes but on one thing only — whether they are freezing their memberships at no cost.
Virgin Active, the country’s biggest fitness company by far, with more than 130 clubs, led the way in announcing that all memberships would automatically be frozen during the lockdown. No debit orders were processed this month.
Planet Fitness, with 30 clubs countrywide, has done the same, as has Viva Gym, which has seven clubs, most of them in Gauteng. “All memberships are currently frozen and you will not get charged any fee until we open again,” the company tells its members on its website.
But members of many other gym groups, as well as independent gyms, are not benefiting from a total break in fees during lockdown.
Do fitness clubs have the legal right to continue to debit members for a service they cannot provide, albeit for reasons beyond their control?
Consumer goods & services ombudsman Magauta Mphahlele told TimesLIVE that according to the Consumer Protection Act, a consumer would be entitled to a full refund of services paid for but not received.
Companies do have a legal “out” if they offered a customer a reasonable alternative — such as a voucher, postponement or free months’ training.
“We have advised that this should be dealt with on a case-by-case basis as the circumstances of consumers are different,” Mphahlele said. “We cannot avoid the sad fact that some suppliers are experiencing massive cash flow problems, but this should not be an excuse to contravene the CPA.”
Any alternatives — to not debiting gym members during lockdown — must be fair and compliant, Mphahlele said, and consumers must also be reasonable.
“If a company really has no cash available or would suffer cash flow problems if they froze membership contributions, then the alternatives offered must not put the consumer in a position where they would end up paying for a service they did not receive,” she said.
In the case of companies continuing to debit their customers or refusing refunds on the basis that their contracts include a “force majeure” clause, “those contracts would have to be tested against the provisions of section 48 of the CPA”, the ombud said. That section states that contract terms must be fair, just and reasonable. “Suppliers may not contract out of the CPA and waive the rights of consumers, waive their liabilities or force consumers to assume any obligations on unfair terms.”
The Gym Company SA, with 21 branches in Gauteng and KwaZulu-Natal, has given members two options — freeze your membership at the cost of a R49 admin fee, or, if their debit orders are processed as usual, their memberships will be “extended for free” for the number of lockdown months. As a sweetener, the company has promised those “non-freeze” members “up to 10x” their gym fees back in monthly grocery and pharmacy discount vouchers, if they are an active “gym4free” rewards programme member.
Many gyms are processing debit orders as usual during lockdown, adding the lockdown period to the end of their contracts.
“Although we have had good support and understanding for this decision,” Zone Fitness told members of its 24 branches, “we can also see that many members did not appreciate this and for that we sincerely apologise.”
“In an effort to give you something in return for your amazing loyalty, we are going to upgrade all club members who keep supporting us through these difficult times, to Superclub membership. For all members already on Superclub status, we’ll reward you with a free three-month membership for a friend.”
The Fight Club, which has 10 branches in Joburg and Pretoria, is offering members a choice of 30 days’ free training after their contract expires, to make up for “April training missed”; a payment holiday of their choice while still training, or a credit to be used as their 30-day cancellation notice period. And the company has vowed not to run any debit orders for May.
The Consumer Protection Act allows consumers to cancel fixed-term contracts such as gym contracts, by giving one month’s written notice, but the company is entitled to charge a “reasonable” cancellation penalty.
Fitness clubs’ penalties range from 30% to 80% of fees payable for the remainder of members’ contracts, which adds up to a large sum in the case of those who only recently signed up.