Eleven months since Covid-19 began destroying lives, livelihoods and many, many plans, I’m still being asked daily to help people get refunds for events that didn’t happen.
There are two distinct categories – weddings and holidays that couldn’t go ahead legally because of hard lockdown, and those that people agreed to postpone to a time when they could happen but then for various reasons decided to cancel as the new date drew near.
In the case of the latter, given that it was the consumer who elected to cancel, normal cancellation penalties apply, unless the person who made the booking, or for whom the booking was made, died or was hospitalised.
But with events cancelled due to government restrictions, when neither consumer nor supplier had any say in the matter, the consumer has the upper hand, according to the consumer goods and services ombud (CGSO).
That office urged consumers to accept postponements and vouchers to spare the suppliers financial devastation, but stressed that in cases where a postponement was not feasible – for example, elderly people who had chosen not to travel in future – full refunds were required.
Not only is the venue not willing to refund the couple any of their deposit, but is threatening to sue them for payment of the balance of the full quoted cost of the wedding – about R29,000.
Covid or not, the CGSO said, if someone didn’t get what they paid for, through no fault of theirs, they’re entitled to a refund.
Still, day after day I continue to get pleas for help from people who’ve been told by wedding venues, guesthouses and the like that refunds are absolutely out of the question. Postponements only – on the supplier’s terms at that, they’re told.
So what justice is there for someone who has been refused a refund for a pre-paid service that could not go ahead due to hard lockdown?
Well, consider Netania of Durban’s case, extreme as it is.
In February, having discovered she was pregnant, she and her husband-to-be approached The Winchester Function Centre in Reservoir Hills about hosting a wedding for 140 guests there on April 4.
The total quote was about R46,000, and the couple paid a deposit of R17,000.
Of course, that turned out to be the second weekend after hard lockdown was imposed, and the venue was closed to the public.
Netania says she tried to call the venue to discuss the matter, but there was no answer. Importantly, the venue did not contact the couple to discuss the turn of events.
They were married by their pastor the day before lockdown, just in time for the new husband to move in with his wife.
“It wasn’t a wedding,” Netania says. “It was just a registration.”
They no longer have need of a “proper” wedding.
But here’s the thing – not only is the venue not willing to refund the couple any of their deposit, but is threatening to sue them for payment of the balance of the full quoted cost of the wedding – about R29,000.
So in total, R45 000 for function hire, food for 140 people, table decorations, the lot – for a wedding that could not and did not take place in the hard lockdown of April.
The reason, according to the The Winchester’s attorney, was Netania’s “failure to arrive at the event or engage with our client, which amounted to a repudiation of the contract”.
Yes, she failed to arrive at or formally cancel an event that could not legally take place, at a function venue that was closed for business at the time, and could not possibly have hosted a replacement function on that day.
The Winchester is of the view that its pre-Covid cancellations penalty policy – penalising the consumer for cancelling – applies to Covid-related cancellations.
The attorney accused Netania and others of “abusing the lockdown regulations to avoid the consequences of binding contracts they enter into”.
“She is accordingly liable to our client in contract, and we have instructions to issue summons against her and have the matter decided in a court of law,” he told me in November.
“In any event, this matter is before the consumer goods and services ombud and our client has responded to that complaint.”
The CGSO recommended that the venue refund Netania in full.
“The venue’s attorneys responded by rejecting our recommendation and advising that they will proceed with legal action,” said ombud Magauta Mphaphele.
And sadly, there is nothing her office can do about that.
“We are limited to making a recommendation,” Mphahele said. “We have no powers to enforce our recommendation and that is why we advised [Netania] of the next steps, which is to lodge a formal complaint with the National Consumer Commission.
“The case needs to be adjudicated by a competent body. In this case it would be the National Consumer Tribunal after an investigation and referral by the National Consumer Commission (NCC).”
If the NCC doesn’t choose to refer the matter, Netania will have to fund her own legal representation.
This week I asked the venue’s attorney if his client intended to issue a summons against Netania for the “outstanding” R29,000.
“We will not deal with you in this matter,” he responded. “Not only because you have your own partial views which you have already expressed, but because Netania now has another attorney to represent her to whom we had written on the 17 February 2021 and await their response.”
Not true, says Netania.
“I don’t have another attorney,” she says. “The last communication my original and only attorney got from the venue’s attorney was in November. And I only engaged an attorney to respond to their demand for R29,000.”
“That cost me R3,500, and I can’t continue with legal representation.”
Curiouser and curiouser.
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.