When the CPA trumps stores’ in­ter­nal pol­icy

Daily Dispatch - - Opinion - Wendy Knowler

Imag­ine tak­ing your car in for a me­chan­i­cal re­pair un­der war­ranty and be­ing told that the war­ranty is void be­cause there’s a scratch on the bumper, or your ve­hi­cle hasn’t been washed lately.

Or that de­spite the fact that the sole of your new pair of san­dals has started pulling away from the up­per within a few weeks of pur­chase, you have no re­course be­cause you punched an ex­tra hole in the an­kle strap. That would be ridicu­lous and to­tally un­fair, right? Right. It’s also il­le­gal. And don’t take my word for it.

This is how Con­sumer Goods and Ser­vices Om­bud Ma­gauta Mphahlele puts it: “Sup­pli­ers re­ly­ing on stains, scratches and the like im­plies that the CPA in­tended for a war­ranty to ap­ply only if the goods are not used. This would be ridicu­lous and de­feat the pur­pose of the CPA.

“If the item has been used ac­cord­ing to man­u­fac­turer in­struc­tions and has not been tam­pered with, then the war­ranty stands,” Mphahlele said.

“Nor­mal wear and tear is not al­ter­ing as per the def­i­ni­tion of sec­tion 56.”

So, Sec­tion 56 – the bit of the CPA you re­ally should read if you don’t have the time or in­cli­na­tion to wade through all of it – says that if you buy some­thing and it be­comes de­fec­tive in some way within six months, you have the right to your choice of a re­fund, re­place­ment or re­pair, pro­vided you haven’t caused the prob­lem your­self through an ac­ci­dent or some kind of mod­i­fi­ca­tion, or us­ing it con­trary to the man­u­fac­turer’s in­struc­tions.

So the sup­plier can only refuse to hon­our that six­month war­ranty if the “breach” is re­lated to the de­fect. If you re­moved the two-prong plug your hairdryer came with and re­placed it with a more prac­ti­cal three-prong one, and the hairdryer stops work­ing within six months of pur­chase, the war­ranty stands un­less your dodgy wiring caused the prob­lem. “If the de­fect is un­re­lated to the alterations,” Mphahlele says, “the sup­plier may not es­cape li­a­bil­ity”.

That brings me to the case of Ruqaiyah Wal­lace, who bought her fiancé a Fos­sil watch on Christ­mas Eve at the Fos­sil store in Canal Walk.

“He wore it on Christ­mas Day, but it didn’t keep time – he kept hav­ing to man­u­ally re­set it.”

So she re­turned the watch to the store on Jan­uary 2 and asked for a re­fund. “They said the watch is scratched and they don’t take back scratched watches.”

The cou­ple dis­puted be­ing re­spon­si­ble for the fine scratches and were of­fered a re­place­ment. “We re­fused; the watch was de­fec­tive so we’re en­ti­tled to a re­fund. Their web­site states that I can get a re­fund within 90 days for a faulty item.”

Make that six months – the CPA trumps any store’s in­ter­nal re­turns pol­icy for the first six months.

I took up the case – and the broader is­sue – with Fos­sil, and re­ceived a re­sponse from Rudy Cow­ley, the group’s dis­trict man­ager in Cape Town. “I have con­tacted the cus­tomer and we will be giv­ing her a re­fund.”

When asked if the Canal Walk branch was cor­rect – in terms of com­pany pol­icy – in deny­ing Wal­lace a re­fund on the ba­sis that the watch had a few scratches on it, Cow­ley said on Mon­day that he’d for­warded my email to his head of­fice for a re­sponse. Noth­ing yet.

Many South Africans have had their le­git­i­mate right to re­turn de­fec­tive prod­ucts within six months for their choice of a re­fund or even a re­place­ment de­nied, based on the fact that the prod­uct had cos­metic scratches or dents which had ab­so­lutely no bear­ing on the de­fect at all.

And I’m quite sure most of them didn’t re­alise that the store had no right to do that. The in­jus­tice makes me fume.

Mphahlele told me her case man­ager had con­firmed that while the Om­bud’s of­fice of­ten deals with such cases, there is no con­sumer ad­vi­sory on the is­sue. Draft­ing one is now on their im­por­tant “To Do” list.

An­other in­dus­try which rou­tinely de­nies war­ranty claims based on cos­metic wear and tear is­sues is the bed in­dus­try. Again, they can do what they like from month seven of a mat­tress’s life, but not in the first six months. If a mat­tress sags or col­lapses in the first six months, the re­tailer and sup­plier may not refuse to take re­spon­si­bil­ity – re­fund or re­place – if there is a stain on the mat­tress. But this is a stan­dard clause in a mat­tress war­ranty: “(We) re­serve the right to refuse ser­vices upon in­spec­tion if the prod­uct is dirty, stained, burnt, in­fested with in­sects or in an un­san­i­tary con­di­tion.”

Not in the first six months, you don’t. Here’s an­other one: “The de­ci­sion whether to re­place or re­pair the mat­tress is sub­ject to the man­u­fac­turer’s dis­cre­tion.” Again, not in the first six months – that pe­riod be­longs to the CPA, and the con­sumer has the right to choose the rem­edy, not the re­tailer or the mat­tress sup­plier.

If we all wise up to our rights – and name and shame those com­pa­nies which deny us them – these in­jus­tices will end.

Nor­mal wear and tear is not al­ter­ing as per def­i­ni­tion of sec­tion 56 (of CPA).

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