Act gives consumer wide-rang­ing shop­ping pro­tec­tion

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

AVISIT to a ma­jor shop­ping mall brings the Consumer Pro­tec­tion Act into play in a hun­dred dif­fer­ent ways. Sup­pli­ers and con­sumers need to un­der­stand how it does so.

As you drive into the park­ing garage you are faced with a dis­claimer no­tice. If a dis­claimer no­tice is to be ef­fec­tive it needs to be short and eas­ily com­pre­hen­si­ble as you drive past (“park­ing at owner’s risk”) in large bold let­ters. Like all dis­claimers and shift­ing of risk to pro­tected con­sumers, the na­ture and ef­fect of the no­tice needs to be ex­plained in plain lan­guage

In the mall the pro­mo­tion of goods or ser­vices for pur­poses of sell­ing them to you is gov­erned by the act and the re­tailer should not make claims that are mis­lead­ing. If the goods are on sale for 20% off all marked prices they must give you 20% of the marked price or sell at the low­est price if it is 20% less than the next. All goods should be dis­played with a price un­less they are in a shop win­dow.

The goods sold must be free of de­fects. If there is any ma­te­rial im­per­fec­tion goods can be re­turned within six months against a full re­fund, re­place­ment or re­pair at the re­quest of the consumer. Whether it is a skinny cap­puc­cino with full cream milk or a large flaw­less di­a­mond with a ma­te­rial flaw, the consumer can re­turn it for a re­fund or re­place­ment with­out any penalty.

You walk into a ma­jor com­puter store to buy the lat­est com­puter for your of­fice and a com­puter pad for your­self. For each trans­ac­tion they hand you de­tailed con­di­tions of con­tract with lots of small print. You are fully bound on be­half of your busi­ness be­cause the act does not ap­ply. Whether the other doc­u­ment is bind­ing on you per­son­ally will be tested against a long list of con­tract terms that may be con­sid­ered un­fair if there is ever a dis­pute with the sup­plier. You use your firm’s credit card to pay for the com­puter which is to be de­liv­ered on Wed­nes­day the fol­low­ing week. You pay for the com­puter pad with your own per­sonal credit card and they say they will get one out of their store­room so that you can fetch it on the way back to your car. Un­less you have a very small busi­ness — as­sets or turnover less than R2m — the trans­ac­tion on be­half of your busi­ness is not pro­tected by the act. If the com­puter is not de­liv­ered on Wed­nes­day you may have to wait or put them on terms. If the com­puter pad is not ready for you on the way back to your car be­cause they have run out of stock you do not have to wait. You can can­cel the con­tract and get a full credit on your card.

You get to the cen­tre court and walk past a large dis­play of­fer­ing to sell you a prop­erty on a golf es­tate. An at­trac­tive sales­per­son runs af­ter you and per­suades you to come back to have a closer look at the prop­er­ties on of­fer. As a re­sult of this di­rect mar­ket­ing ap­proach, and the en­thu­si­asm that spring­time brings, you sign to buy a prop­erty that is sub­ject to a 10% can­cel­la­tion fee if you change your mind. If you do change your mind be­fore you leave the shop­ping cen­tre (or at any time within five days) you can can­cel the con­tract with­out rea­son or penalty and no with obli­ga­tion at all.

Af­ter search­ing for your spouse’s birth­day present you de­cide to buy a shop­ping voucher from the in­quiries counter. The as­sis­tant tells you that the voucher is valid for a year. Not so, you rightly say, I am en­ti­tled to three years to re­deem its full value. If how­ever you have a pocketful of dis­count vouch­ers sent to you by the book­store as a re­ward, that is not a pre­paid voucher and can ex­pire.

You check your watch for the time. The bat­tery has stopped. You go into a ma­jor store where they re­place watch bat­ter­ies. This is the sup­ply of a ser­vice sub­ject to the act. The re­pairer later tells you they left the watch ly­ing on the counter and it was stolen by a pass­ing shop­per. The shop is li­able to re­place the watch be­cause they did not ex­er­cise the de­gree of care ex­pected of some­one who looks af­ter an­other’s prop­erty. That is so even if you signed a dis­claimer.

While walk­ing out of the shop and gaz­ing lov­ingly at your new watch you trip over the un­even floor where the tiles are be­ing re­placed and crack the watch glass. Be­cause you were given ac­cess to the premises for com­mer­cial rea­sons, and be­cause there was no proper warn­ing of this un­usual risk, the mall own­ers will be li­able to re­pair the dam­age.

You leave the mall cheer­fully, your copy of the Consumer Pro­tec­tion Act safely tucked into your back pocket in the knowl­edge that there are many more rights to ex­er­cise.

I would ap­peal to ev­ery­one in one re­spect — use the Consumer Pro­tec­tion Act wisely and only when nec­es­sary. If ev­ery­one goes around cry­ing “CPA!” as ev­ery­one once cried “un­con­sti­tu­tional!” we will get a gen­er­ally un­happy and un­help­ful re­la­tion­ship be­tween sup­plier and consumer. Let’s keep it sen­si­ble.

Pa­trick Bracher is a se­nior part­ner at Nor­ton Rose.

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