WENDY KNOWLER

“I am not familiar with the Consumer Protection Act (CPA). However, this is the second time this year that I have had to refer to it, so I am learning as I go along.”

On behalf of a disgruntled client, I’m engaging with a woman who runs a business supplying backup power systems and solar installations. My pointing out that she was transgressing the Consumer Protection Act prompted her admission that she hadn’t bothered to ensure that her business is CPA compliant.

One has to wonder what other regulatory requirements such a business owner is also learning about as they go along.

The CPA has been in force for more than 12 years, but many service providers, especially the smaller operators, still assume that it doesn’t apply to them.

Gavin Copeland, who lives in a Cape Town retirement village, had been e-mailing second-hand parts suppliers across the country in search of an electronic stability programme control unit for his 20-year-old car, without success.

“All replies were in the negative,” he told me. “So I had almost given up when I was contacted by Quantro Auto Spares of Pretoria, saying they had the part.

Even if the consumer was advised that the company does not give refunds, it doesn’t make it legal – they are still bound by the CPA
— Queen Munyai, CEO of the Consumer Goods & Services Ombud

“I was thrilled,” he said. “We agreed on a price of R4,800, and during a phone call I asked the salesperson to confirm that should the part be faulty, it could be returned for a refund, to which he agreed.”

(It’s always a good idea to confirm verbal agreements in writing, before making payment, as this story illustrates.)

Copeland made payment and bore the cost of having the part couriered to Cape Town.

When it arrived in mid-April, he immediately took it to the workshop where his car awaited repair. But the next morning the auto electrician had news that wasn’t at all thrilling: the part was faulty.

He communicated this to Quantro and was told to send it back, with a technical report, on which he would be refunded.

He did as he was told, the auto electrician’s report stating: “From start-up we had a fault code relating to the internal power supply of the unit.”

But on querying his refund, he was told he wouldn’t be getting one.

“They said they reserved the right to repair or replace the part, knowing very well that neither was possible,” said Copeland.

“Their third offer was a credit note, to be used to buy something else from their store — a ridiculous suggestion as I am not in the car business.”

Copeland wrote to me when his subsequent e-mails to the company went unanswered.

The CPA allows consumers to return defective goods within six months of purchase for their choice of a refund, replacement or repair.

The supplier may technically assess the product to rule out user abuse as the cause of the problem.

Importantly, even if that part wasn’t faulty, Copeland would have been due a refund in terms of the Electronic Communications and Transactions Act, which states that when a consumer buys a product online, they have a seven-day cooling-off period in which to return the product to the supplier — for no particular reason — for a refund.

When my e-mailed media query — addressed to CEO Marlo van der Merwe and asking him if he was prepared, given the legal position, to reconsider his client’s refund request — went unanswered for a week, I called the business.

An employee, who gave his name only as “Neish”, told me the company had been in business for more than 20 years and its policy of refusing to refund returned parts had not changed in that time.

When I pointed out the provisions of the CPA, he insisted the company policy remained one of no refunds, that this had been clearly spelt out to Copeland, who had agreed to it, and that the matter was being handled by their attorney.

Copeland denied this. “There is no way I would have ordered a technical car part from a company in Pretoria to be delivered by courier to Cape Town in the knowledge that it could not be returned for a refund if faulty,” he said.

But even if he had, he’d still have a legal right to a refund.

Even if the consumer was advised that the company does not give refunds, it doesn’t make it legal – they are still bound by the CPA
— Queen Munyai, CEO of the Consumer Goods & Services Ombud

“We agree with you in that the company’s policy is invalid as it does not comply with the CPA,” said Queen Munyai, CEO of the Consumer Goods & Services Ombud.

“In terms of Section 51 of the CPA, a retailer cannot have a blanket no-refunds policy.

“If there is a defect, the supplier is liable in terms of section 56 and cannot exclude liability.”

In short, Section 51 states that a supplier may not make a transaction or agreement subject to any term or condition if its general purpose is to defeat the purposes and policy of the CPA or to deprive a consumer of a CPA right.

“Even if the consumer was advised that the company does not give refunds, it doesn’t make it legal — they are still bound by the CPA,” said Munyai.

I shared that view with Quantro’s Neish, who responded: “The boss wants proof that the part is not working — a short video — because he does not know if the report is for our part.

“Once you send me a video that our part is not working we can process a refund.”

Again, a request for the impossible. The part in question was sent back to the company in April.

Copeland subsequently sourced the required part from Germany and had it fitted by the same auto electrician, and the car is running perfectly.

Earlier this week, Neish e-mailed me to say the company would “process the refund”.

Good call. It’s crucial to know your consumer rights when it comes to cancellation, recourse for defective goods and online shopping’s cooling-off period.

And to find out if a company’s Ts and Cs align with the law before committing to the deal.

• Contact Knowler for advice with your consumer issues via email: consumer@knowler.co.za or on Twitter: @wendyknowler

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