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Newly purchased goods damaged or not working as advertised, do not fear the Consumer Protection Act is here.

damaged goodsThe Consumer Protection Act 68 of 2008 (CPA) provides consumers with numerous rights which can be enforced against the suppliers of goods and services.

Prior to the inception of the CPA, consumers had limited rights at their disposal for goods and services they received, which were faulty and/or defective. Luckily consumers now have various remedies at their disposal to rectify the previously daunting task of returning defective and/or faulty items.

We have all at some stage or another, thanks to sale promotions and the ease of online shopping, purchased goods, which were delivered defective and/or faulty. Prior to the inception of the Consumer Protection Act, returning a defective product was a nightmare. The consumer would in all probability have had to negotiate with a reluctant supplier, in the hope of being treated in an amicable and fair manner.

With the inception of the Consumer Protection Act ("CPA"), those days are over – even if the store “policy” or “management” disagrees.

A consumer’s right to return purchased items in terms of the CPA is however not unlimited – for example you cannot randomly return a pair of headphones or an item of clothing once "buyers remorse" kicks in.  However there are various circumstances under which and time periods in which goods can be returned:

  • Where they were bought and/or delivered faulty and/or defective; or
  • When they cannot be used for the specific purpose for which they were purchased and/or advertised; or
  • Where direct marketing leads to the purchase of the goods (consumer has a “cooling off” period); or
  • Where they were not seen (examined) before purchase (this is specifically applicable to the online shoppers).

The office of the Consumer Goods and Services Ombudsman states:

A supplier cannot force a consumer to opt to have the goods repaired if the consumer prefers a refund or replacement, unless the defect is insignificant or minor. The consumer can insist on a cash refund instead of a store credit or vouchers, or on a replacement with something similar at no additional cost. The supplier may not force the consumer to purchase a more expensive model or brand. The supplier must bear the costs of repairing, collecting and/ or replacing the defective goods and may not charge for usage or wear and tear on the returned product.

Section 56 (read with section 55) of the CPA automatically affords you a warranty that all goods sold:

  • are reasonably suitable for the purpose for which they are generally intended;
  • are of good quality, in good working order and free from any defects;
  • will be useable and durable for a reasonable period of time;
  • comply with the Standards Act/ other public regulations; and
  • are reasonably suitable for the specific purpose they were created for.

It is of the utmost importance to remember that at the supplier’s risk and expense, and without penalty (own emphasis), you are allowed to return any goods purchased with any defect or fault within SIX months after the purchase date. However, one has to bear in mind that the defects must be significant and material. Accordingly each and every item with a defect and/or fault will be judged on its own merits.

Returns of defective and/or faulty goods will not apply if the consumer was specifically told that the particular goods were offered in a specific condition (voetstoots) or if the consumer tampers with the goods. As such it is always advantageous to follow the instructions for use and not attempt to "maximise" your products performance without the assistance of an authorised representative of the company you purchased the product from.

If you are a supplier, it is important to have a CPA compliant returns and/or refund policy in place.

Furthermore it is important to bear in mind that should a supplier and/or service provider fail to abide by the CPA by failing to replace, repair and/or alternatively refund you the purchase price of the defective item, a dispute in terms of Section 71 of the CPA can be lodged with the following alternative dispute resolution forums:

  • An ombudsman with the appropriate jurisdiction (who may adjudicate over the complaint);
  • The industry ombudsman;
  • Any entity or person who can hold conciliation, mediation or arbitrations in an attempt to resolve the matter;
  • The Consumer Court.

Should any of the above processes and/or forums fail to resolve the dispute between the supplier and consumer, the complaint may automatically be referred to the Consumers Complaints Commission, who will investigate the matter and make a competent order, which order will be binding on the consumer and the supplier.

A consumer would be well advised to consult an attorney prior to initiating any action to obtain advice with reference to their specific issue.

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