Act gives consumer wide-ranging shopping protection
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.