If you haven’t been in­formed of a de­fect, a sup­plier can­not in­sist on en­forc­ing a voet­stoots clause

The Star Early Edition - - FRONT PAGE -

IT’S A bar­gain, so the pur­chase is at your own risk, you don’t get a guar­an­tee nor a re­fund. Such terms of sale still seem to be wide­spread – es­pe­cially at fac­tory out­lets and clear­ance stores.

Con­sumers have grown ac­cus­tomed to the fact that if you pur­chase goods (fur­ni­ture, cloth­ing and the like) at such stores, there might be some­thing wrong with it, sim­ply be­cause you’re get­ting a cheapie.

But whether it’s a “reg­u­lar” store or a clear­ance out­let, sup­pli­ers aren’t legally al­lowed to in­sist on voet­stoots sales be­cause the clause has largely been given the boot since the Con­sumer Pro­tec­tion Act came into ef­fect.

Voet­stoots essen­tially means that a sale is con­ducted en­tirely at the buyer’s risk – “warts and all”. Since April 1, 2011, sell­ers haven’t been able to hide be­hind the voet­stoots clause pre­vent­ing claims from buy­ers be­cause the CPA pro­vides that ev­ery trans­ac­tion fall­ing within its scope will have an “im­plied war­ranty of qual­ity”. So, all goods are sold with the ex­pec­ta­tion that they are of good qual­ity (will last at least six months), are in good work­ing or­der and are free of de­fects.

And sup­pli­ers hell­bent on en­forc­ing the voet­stoots clause by stamp­ing “no re­funds, no re­turns” are in ef­fect de­priv­ing con­sumers of their rights. Sec­tion 48(1)(c) of the CPA states a con­sumer may not be asked to waive any rights or the sup­plier’s li­a­bil­ity. Any clause that lim­its a con­sumer’s rights is con­sid­ered un­rea­son­able, un­fair or un­just.

If de­fects ap­pear af­ter the sale or if goods are not CPA-com­pli­ant, the con­sumer is en­ti­tled to re­turn them within six months. The CPA also makes the seller li­able to ei­ther re­pair or re­place the goods, or to re­fund the pur­chaser.

Sup­pli­ers could es­cape li­a­bil­ity for de­fec­tive goods only if, at the time of sale, the con­sumer was fully aware of the de­fects. So, if you’ve bought a shop-soiled ap­pli­ance and told ex­pressly what was wrong with it, you wouldn’t rea­son­ably have a claim against the sup­plier.

But if you’ve bought some­thing from a clear­ance out­let and not in­formed the goods are de­fec­tive, the sup­plier can’t rely on a pre­sump­tion that they might be.

A reader mailed me last week about Cor­i­craft’s Mon­tague Gar­dens store in Cape Town, ques­tion­ing whether they were in fact al­lowed to in­sist that “no re­funds, no re­turns” would be en­ter­tained. She had bought a couch with no ap­par­ent de­fects from the out­let but the sales­per­son told her that it couldn’t be re­turned.

An­other up­set reader, from Dur­ban, wrote to me about a new bed he had bought from Sleep King in Chatsworth, which failed af­ter a month. Fran­cois Coet­zee was then told “sorry, the man­u­fac­turer doesn’t pro­vide a guar­an­tee so we can’t help you”.

“I am at the end of my tether as I am get­ting no joy out of these sales peo­ple. The per­son who sold me the bed told me the man­u­fac­turer does not give a guar­an­tee so Sleep King will not as­sist in any way.

“I bought a dou­ble bed on May 28 and af­ter a month the springs were com­ing through the side of the mat­tress and they make a ter­ri­ble noise. I can’t even turn in bed with­out wak­ing my wife up at night.

“I no­ticed on the in­voice was writ­ten ‘no war­ranty and no guar­an­tee’ in be­tween the de­scrip­tion of the fur­ni­ture. This can­not be cor­rect, as I have only had the bed for a month. I bought a lounge suite, wardrobes, kitchen units and a dou­ble bed last year, so I was sup­port­ing this branch.

“I’ve been try­ing to con­tact the branch for the past two days and no one’s get­ting back to me. I’ve ended up loan­ing a bed from my daugh­ter as this bed is so un­com­fort­able to sleep on. Please help.”

I asked con­sumer spe­cial­ist Trudie Broek­mann about both is­sues.

“As long as the CPA ap­plies fully to a trans­ac­tion… it’s il­le­gal to sell any goods on a voet­stoots ba­sis or have a pol­icy which doesn’t al­low a con­sumer to re­turn de­fec­tive goods. This ap­plies across the board – even if you buy sale goods, or from a clear­ance store, a fac­tory shop, char­ity shop, vin­tage or sec­ond-hand shop, etc.

“The CPA al­lows a seller to ex­clude li­a­bil­ity if the goods are not in good work­ing or­der or fit for their pur­pose, if they have specif­i­cally dis­closed the con­di­tion of the goods (for ex­am­ple, ‘shop-soiled’, ‘sec­ond­hand’ or ‘dam­aged arm­rest’) and the con­sumer went ahead and bought them any­way.

“This ap­pears not to have been done by Cor­i­craft, and con­se­quently the six-month guar­an­tee in terms of the CPA ap­plies. That al­lows the con­sumer to re­turn the goods if they are sub­stan­tially de­fec­tive or un­fit for their pur­pose, or not us­able and durable for a rea­son­able pe­riod, and on re­turn­ing the goods, the con­sumer must be re­funded the pur­chase price or the goods must be re­placed or re­paired at the sup­plier’s ex­pense.”

Im­por­tantly, this right to re­turn goods and claim a re­fund, re­place­ment or re­pair over­rules any store pol­icy or con­trac­tual ex­clu­sion put in place by the sup­plier.

“In both ex­am­ples, the con­sumer can re­turn the goods and get a re­fund, re­place­ment or re­pair – de­spite the re­tailer’s stance.

“I would rec­om­mend the con­sumer in­sist on speak­ing to the store man­ager or in-house le­gal per­son of the re­tailer. If they still have no joy, the con­sumer should lodge a com­plaint with the Con­sumer Goods and Ser­vices Om­bud. It’s a free ser­vice – see www.”

For­tu­nately, tak­ing the mat­ter to the om­buds­man wasn’t nec­es­sary. I con­tacted the Sleep King branch about Coet­zee’s de­fec­tive bed. At first, the man­ager told me that it was one of their “bud­get” items so it didn’t come with any guar­an­tee and Coet­zee was made aware of the fact (he says not, the in­voice was given in a sealed en­ve­lope). When I ex­plained that all goods sold should come with an au­to­matic six-month war­ranty of qual­ity, the man­ager back­tracked and said they would give Coet­zee a new bed or a re­fund.

RE­FUND TROU­BLES: Con­sumers are al­lowed to re­turn de­fec­tive goods or ask for a re­fund in terms of the Con­sumer Pro­tec­tion Act.

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