An angry consumer who spent R120,000 on a borehole only for it to collapse has succeeded in having the company found guilty of misleading advertising and instructed to correct this with a disclaimer.
The Advertising Regulatory Board has ordered Stark Borehole to clarify its “100% drilling success rate” claim to state that though it may have 100% success in reaching water, this may not result in the successful installation of a borehole.
The consumer laid a formal complaint against Stark Borehole’s claims on its website in which it states it has a 100% success rate with borehole surveys and with drilling.
“100% success rate was advertised. This is why I used their services, and they collapsed the borehole, underestimated depth on the survey and are now threatening me as I have asked them to remove ‘100% success rate’ as this is misleading and against the Consumer Protection Act,” the consumer stated in her complaint.
She stated that all she wanted was the removal of the 100% success rate claim as “it is misleading and false in the case of their service failing”.
“It has set unrealistic expectations in my eyes (the customer) and I feel deceived by this business,” she said.
When contacted for its response, Stark Borehole said phase one of digging a borehole involved percussion drilling to reach the underground water. Once the drill hits water, the drilling rods are removed and PVC sleeves are inserted to secure the borehole shaft and stop it from collapsing.
However, in some cases the borehole shaft collapses after the rods are removed, before the sleeves are installed or, as happened in this case, while the sleeves were being installed due to instability underground.
“As part of the term ‘exploration’, instability under a property can only be determined once drilled. To correct this instability formation a different technique, Odex drilling, is required. It is much more expensive, requires a different drill rig and method — but not impossible, should the client wish to proceed with the more expensive drilling method,” Stark Borehole explained.
Odex drilling takes three times longer, involves telescopic steel casings from top to bottom and is much more expensive.
“The complainant contacted us after a first failed attempt when they appointed the wrong drilling company. We were approached for a survey quote and site assessment. We quoted for normal percussion drilling to the depth needed,” the company explained.
The consumer accepted and signed the quote, the terms of which were explained.
“Drilling was done, water was struck, but unfortunately when retrieving the drilling rods the formation/underground started to slowly collapse. We attempted another two additional days, at no extra cost, to drill and try to get the sleeves in. But as soon as the drill rods were removed the formation collapsed. The sleeves that were inserted to a certain depth were crushed by the collapsing formation.”
The drilling contract that was accepted by the customer stated: “Should the borehole collapse after drilling due to unstable formation the account will be settled and a new Odex drilling quote will be generated, should (the customer) wish to continue with a different technique, Odex drilling.”
Stark Borehole said the customer said she did not have the funds to continue with Odex drilling and did not want to over capitalise on the property.
Soon after this, the customer then posted bad reviews against the business on HelloPeter, Google Reviews and Facebook. She also got her friends to do the same on these platforms.
“We have the names of these friends and proof of defamation. We went further and got a cease and desist letter to be sent to (the customer) and her friends,” Stark Borehole said.
“This falls outside the mandate of the ARB, which only addresses truth in advertising,” the regulator stated in addressing the complaint.
The ARB considered the complaint in terms of the claim of misleading advertising.
“Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer,” the ARB’s directorate said.
“The complainant here contends, in essence, that the 100% success rate advertised on the (Stark Borehole’s) website is misleading, as in the case of the attempts to dig a borehole at the complainant’s site, the outcome was not successful.”
The hypothetical reasonable consumer, on reading the two claims, would most likely understand that they are 100% going to get a borehole.
— ARB’s directorate
Stark Borehole, however, argued that the possibility of the borehole process being unsuccessful had been carefully explained and the complainant had signed a contract in which the possibility of an unsuccessful outcome was clearly listed.
The directorate found that a successful survey was carried out for the complainant, that Stark Borehole had therefore complied with its advertised “100% borehole survey success rate” as well as the “100% drilling success rate” because they had struck water.
“However, the directorate believes that the average customer does not understand the intricacies of a borehole drilling operation, and might, upon reading about the advertised 100% drilling success rates, assume that they would enjoy a 100% success in actually obtaining a borehole using the advertised services.”
The directorate reasoned there was no point in promoting a 100% success rate in drilling if this did not automatically result in a borehole for the customer. Drilling success was irrelevant to customers if the borehole collapsed, as had happened in this case.
“The hypothetical reasonable consumer, on reading the two claims, would most likely understand that they are 100% going to get a borehole. The matter is complicated by the fact that it would appear, on the facts, that you do ‘100%’ get a borehole if you are prepared to pay for a more expensive procedure when the initial attempt fails. In other words, if money is no object to the consumer, then the advertiser does have a 100% success rate. What they do not have is 100% success rate in creating a functioning borehole on every hole that they drill,” the directorate found.
“The consumer would not understand that you can have drilling ‘success’ but still not actually achieve a borehole. For the consumer, drilling success is having a successful borehole.”
In the complainant’s case, she had spent more than R120,000 and did not get a borehole. She therefore felt that some kind of alert and clearly legible disclaimer was necessary to render the 100% success rate claims true. She asked that Stark Borehole be instructed to clarify that some boreholes may require a more expensive process for guaranteed success.
“It is a well-established principle that an advertiser cannot clear up a misleading impression created in an advertisement with the subsequent contract ... the directorate, therefore, considers the advertisement in its current format to be misleading and in contravention of the Advertising Code of Practice.”
The ARB ordered all members not to accept advertising claiming “100% drilling success rate” without any disclaimer.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.