WENDY KNOWLER | Lockdown cancellations — a world of pain all round

In this weekly segment of bite-sized chunks of useful information, consumer journalist Wendy Knowler summarises news you can use:

Lockdown cancellations — a world of pain all round 

President Cyril Ramaphosa's Sunday night announcement that, at least for two weeks, functions and events are not allowed and that gyms must close, has predictably led to a fresh round of cancellations.

Only this time, they are not voluntary cancellations; they are sparked by a legal prohibition. And that means consumers are legally entitled to a full refund of their money — the “reasonable” cancellation penalty doesn’t apply when the consumer has no choice but to cancel.

Nevertheless, many function venues and guest houses are telling consumers that they will not be getting refunds.

One hotel told a family with a booking during this fortnight that it’s closing for the two weeks, and no, they couldn’t get a refund because they simply don’t have the money.

Ideally, consumers should consider accepting a postponement, but in the case of many wedding cancellations, the couple, exhausted from all the on-off uncertainty, and the impossibility of knowing whether guests, especially those travelling from overseas, will be able to attend, have given up on the idea of a wedding and have married by means of a private ceremony instead.

So a postponement is not appropriate.

In reality though, in most, if not all cases, the Covid-crippled business has spent the deposit to pay their utility bills and/or staff, and with no new deposit payments for bookings coming in, they just do not have the money.

The only possible solution is for both sides to have an honest discussion and then agree to some arrangement — a deposit repayment plan over several months, or the offering of some other form of service in lieu of a refund.

What about “force majeure” — uncontrollable events such as war, political unrest, strikes, acts of God, national lockdowns and the like: can companies rely on that as justification for not refunding deposits or full payments?

At a webinar hosted by the Consumer Goods & Services Ombud’s (CGSO) office last week, Noluthando Moledi, a director at commercial law firm Tumbo Scott Incorporated, said there are very specific circumstances that need to be met for force majeure to be relied on to suspend the conditions of a contract. 

For starters, force majeure has to be mentioned in the contract, along with the specific unforeseen event.

Plus — and here’s the important bit: “A force majeure clause will only protect a company from a potential damages claim arising from non-performance, but does not absolve it from paying a refund,” Moledi said.

To lodge a complaint with the CGSO about a supplier’s refusal to refund, go to http://www.cgso.org.za.

Before you try to fix your less-than-perfect new purchase, consider this ...

If something you’ve bought breaks in some way within six months, don’t attempt to repair it yourself. Here’s why: you will invalidate your Consumer Protection Act (CPA) right to your choice of refund, repair or replacement.

Michelle, of Durban, wrote to me this week about her son’s experience with a vape he’d bought online.

“It was a fancy thing; four times the price of a normal one,” she said.

“The back was a bit loose so he tried to glue 'spacers' in between to make it fit snugly, but it didn’t help, so I suggested that he return it — it’s less than a week old.

“He told the online retailer what he’d done and sent them a video of how it jiggles, but they say they cannot 'guarantee anything' as it has been tampered with and there are glue remnants!

“Is there any rule or consumer law that he could use or quote to ensure that he gets his refund?”

There is such a piece of legislation, but it helps the supplier of that vape, not Michelle’s son.

Section 56 of the CPA —  Implied warranty of quality — states: “In any transaction or agreement pertaining to the supply of goods to a consumer, there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated in section 55, except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.”

Despite that, the supplier in this case did replace the vape, so he got lucky. 

But best not to risk making his mistake, because if your “fix” fails, legally you have no recourse.

This doesn’t apply to changing the plug on an appliance.

How to find out who sent you that cellphone subscription spam

Ever tried to find out who sent you that SMS spam of the cellphone “value added” subscription kind?

Getting to the bottom of which company lies behind the code on that unwanted SMS has proved incredibly difficult for many people in the past, but now there’s a way to track them down on your own.

The Wireless Application Service Providers’ Association (WASPA) has launched its Codes Project, giving we consumers access to a platform enabling us to identify the owner of a short, long or USSD code.

All you do is go to https://codes.waspa.org.za/ and enter the number to find out who sent you that marketing message. 

But Ilonka Badenhorst, managing executive at WASPA, says the platform will only contain information about service providers that are registered with WASPA. 

“If the company that sent the SMS is registered with WASPA, their contact details will be provided, allowing the consumer to contact them directly to obtain more information on the originator of the message, to request to be removed from the database or to lodge a complaint.”

The Codes Project is part of WASPA’s Do Not Contact initiative, which is a list that consumers can add their number to, in order to avoid unsolicited SMS advertising. 

WASPA members engaged in direct SMS marketing campaigns are required to check the DNC list on a weekly basis.

If the organisation sending the messages fails to comply, you can then contact WASPA directly. 

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