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Returns under the Consumer Protection Act

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Nicholas Hall

One of the most frequent questions we are asked is when goods can be returned under the Consumer Protection Act (“CPA”). There are a number of sections in the Consumer Protection Act that allow consumers to return goods to the suppliers, but what is important to note, is that there is no general right of return.

there is no general right of return

For example when you buy an item from a store and the next day you regret spending so much money, or you simply do not like the item in the morning, you cannot return the item simply because you have had a change of heart. Some retailers do allow you to do this, but it is not your legal right to do so.

A change of heart is not a legal reason to return an item.

There are very limited circumstances that are discussed below where you can return an item. However in these cases, even if the law is on your side, the seller can simply refuse to give you your money back, leaving you arguing with a brick wall.

When you can return goods under the CPA

Generally speaking there are only four instances when one can return goods under the CPA.

1)  The Direct Marketing Cooling-Off Period.

In terms of s16 of the CPA, if a consumer has bought goods are a result of direct marketing, then for a period of 5 days after receiving the goods, the consumer can:

  • return the goods,
  • cancel the entire contract without penalty, and
  • recieve a full refund.
  • The consumer will have to pay the costs to return the goods.

2) Goods which have not been seen before purchase.

In terms of s20 (read with s19) of the CPA, if a consumer has not had the opportunity to examine or inspect the actual goods received before purchase, on delivery of the goods they are entitled to inspect the goods. If on this initial inspection they find that;

  • The goods do not meet the ‘type’ or ‘quality’ once could reasonably expect from the agreement; or
  • If the goods where made in terms of a special or ‘custom’ order, and they goods do not reasonably conform to the specifications of the order.

then:

  • the consumer can refuse delivery,
  • receive a full refund, and
  • the consumer can cancel without penalty.
  • The supplier is liable for the costs of returning the goods.

3) Goods do not meet particular purpose.

In terms of s55(3) (read with s20)  of the CPA, if a consumer informs a supplier that the goods are being bought to fufill a particular purpose, and the suppliers advises that the goods will meet this particular purpose then:

  • 10 days after receiving the goods
  • the consumer can return the goods if it is not suitable for the particular purpose
  • the consumer can cancel without penalty, and
  • the supplier is liable for the costs of returning the goods

It is important to note that despite the above, the consumer is not entitled to return goods for any of the above reasons (1)-(3)  if:

  • for reasons of public health or  public regulation prohibits the return of those goods to a supplier once they have been supplied to a consumer, or
  • after having been supplied to a consumer, the goods have been partially or entirely disassembled, altered, added or combined with other goods or property.

4) Implied Warranty of quality.

In terms of s56 (read with s55) of the CPA, all goods sold to a consumer are sold with an implied warranty of quality, that cannot be contracted out of or revoked. The warranty gives the consumer the right to receive goods that:

  • are reasonably suitable for the purpose that they are intended to be used for,
  • are of good quality, free of defects and in good working order, and
  • will be durable and usable for a reasonable period of time.

If goods are found not to comply with these requirements then;

  • up to 6 months after receiving the goods;
  • the consumer can return the goods, or
  • get the goods replaced, or
  • get the goods repaired.
  • The consumer can do any of these things without penalty; and
  • at the suppliers cost.

general ‘voetstoets’ clause will be insufficient

However a consumer will not be able to return the goods because it was defective or not suitable for the purpose if;

  • The consumer was made aware of the specific defects; and
  • the consumer agreed to receive the goods in that condition.

Because you have to mention the specific defects and general ‘voetstoets’ clause will be insufficient to get out of the s56 warranty.

A word on ‘refunds’

in-store vouchers or credits are not illegal per se

Where ever the CPA entitles a consumer to a refund, it must be interpreted to mean that the consumer has the election on how to receive the refund. This means that while refunds as in-store vouchers or credits are not illegal per se, if the consumer demands a cash refund you must give it to them. Also in terms of s56, the consumer, not the supplier has the election on whether to chose the refund, replacement or repair.

The ECT Act

the ECT Act has its own consumer protection provisions, some of which will trump the CPA

If you sell (or buy goods) online then there are some extra things to consider. Most importantly the Electronic Communications and Transactions Act (“ECT Act”) will apply to the transaction. The ECT Act has its own consumer protection provisions, some of which will trump the CPA. Specifically the reasons (1)-(3) for returns listed above do not apply if the ECT Acts provisions apply to the transaction. Instead of these rights of return consumers have;

  • a general right to return (a ‘cooling off period’),
  • for seven days after delivery,
  • for any reason,
  • without penalty, but
  • the consumer will be liable for the costs of returning the goods.

Since the ECT Act has been around since 2002,  if you have an online store, your returns policies should already be in-line with these provisions.

Refund Policies

If you are a supplier of goods, one of the most important things you can do is make sure that your returns policy is in-line with the CPA. A good returns policy coupled with excellent customer services will be essential to avoid complaints to the National Consumer Commissioner.

If you need to update your returns policy why not contact us, and we will certainly help you.

24 Comments

  1. jjza on July 16, 2011 - 1 am

    Hi Nicholas

    I am very interested in hearing your view on whether or not the above returns policy should apply to cell phones bought on contract and for cash (and if there is a difference).

    Regards
    Justin


  2. Consumer101 on September 13, 2011 - 2 pm

    Hi Nicholas
    Just a question.
    I have purchased an item online through an Online store and after 4 months it stopped functioning properly.
    Who pays for the return of goods? Do i have to pay to have the items couriered back to the suppliers or will the supplier have to pay?

    They have agreed to repair / replace the defective items and courier the replacement back to me.

    Regards
    Consumer101


  3. Nicholas Hall on September 13, 2011 - 3 pm

    Hi Consumer101,

    It appears you have returned the good under s56 of the CPA so the supplier is liable for the costs of shipping.

    kind regards

    Nicholas


  4. DeanV33 on October 05, 2011 - 10 am

    Hi Nicholas

    Do I have any recourse in terms of the CPA in the case of being lied to by the Sales Person and that not all the conditions of the sale was communicated.
    Furthermore the trade in on the item was grossly undervalued.


  5. Nicholas Hall on October 05, 2011 - 1 pm

    Hi DeanV33,

    In terms of being “lied” to you will have recourse under the CPA in terms of the “honest and fair dealings” provisions. You will not have any recourse in terms of the undervalued trade-in.


  6. Letfelman on October 13, 2011 - 3 pm

    Hi Nicolas

    I bought a Nokia cell phone that was on special on 1 October. After 8 days I noticed that the battery needs to be charged quite often. and since 12 October the phone makes a screeching ( fax tone ) sound when I receive or make calls. The Markhams slip return policy however is for 7 days only…. I am a very moderate phone user… please advise on CPA stipulation that can circumvent this – The phone defects is only detectable after the refundable (7day ) period…


  7. Nicholas Hall on October 14, 2011 - 10 am

    Hi Letfelman,

    It sounds like you could use s55 and s56 to return the phone. If Markhams still doesn’t want to replace it, you will need to lay a complaint with the NCC


  8. coredump on December 21, 2011 - 8 pm

    Hi Nicolas,
    I entered into a 24month contract in December 2010 with Vodacom. Since then the phone has been sent to the supplier twice for the same defect. The first time (3 months after purchase) it was repaired (speaker replaced), the returned phone had been improperly assembled. The 2nd time in mid 2011 it went back for inferior call quality (speaker). It was returned with no indication of what the resolution was. This time it was also improperly assembled. 3rd time (late 2011) another section of the phone broke off. I was quoted for repairs which I declined to accept as the supplier failed to ensure the phone was quality tested before leaving there premises on prior occasions which could potentially have resulted in future quality defects. All assembly problems were pointed out at the time of collection. The supplier has now sent the phone back to me in its original faulty state because I declined to accept the quote. They also failed to inspect the problem I reported of inferior call quality which should be honored as per warranty. Do I have any recourse under the CPA even though the contract was initiated in December of 2010 in the form of a replacement handset as all attempts to repair the fault has not been properly dealt with and no “fair or reasonable” service has been forthcoming from the supplier.


  9. Will-I-Am on January 25, 2012 - 10 am

    Hi Nicholas,

    I would like some advice, your assistance would be greatly appreciated.

    My girlfriend purchased a gift (for hair and make-up) for a friends wedding, the wedding was subsequently called off.
    My girlfriend paid for 50% the gift upfront in June 2011 and cancelled it in October 2011, the wedding was only going to take place this year (March 2012), it’s not like there wasn’t adequate notice.
    The business has since told my girlfriend that she is not entitled to a refund and is forced to take a voucher.


  10. Nicholas Hall on January 26, 2012 - 4 pm

    Hi Will,

    Returns isn’t really the issue you are dealing with here, since you never really “received” the gift. However s65 regulates “deposits” and “prepayments”. Under this section the deposit you paid is still your “property” so they have to give you the cash back, they cannot force you to take a voucher. If they refuse, lay a complaint with the NCC.

    kind regards

    Nicholas


  11. sherwinb on January 31, 2012 - 7 pm

    Hi nicholas. I bought a new 2012 Kia Rio in December 2011. 2 weeks after using the car I found a fault, took it into the dealers, they said the car was still new and I needed to give it time to run in. However the technician did notice a fault. After the new year rush +/- 1500km, I found that the fault had worsened. I then took the car in at Kia Pietermaritzburg, they did reload some software which sorted the fault out, however 3 days later the fault returned. I then took it back to my purchase dealer (Kia Pinetown Durban) they had done the same. That same evening the fault returned. They booked the car in for the 4th time in the space of just 2 months since purchasing the car. Their technician had a look at the car and the wiring and came to the conclusion that nothing was wrong with the car, however he does know that there is a fault. When I picked up the car I heard an unusual noise from the gearbox. According to the technician they need to strip the car and book it in for the 5th time. I then contacted the dealer principal, explained to him situation and the car has an internal fault and that its a brand new car and I don’t want it to be striped. I wanted them to either replace the car or give me a refund. He was very aggresive towards me and said that there’s nothing he can do but repair the car. However, kia’s technicians have tried numerous times and the problem still persists. Where do I go from here? Till date they haven’t contacted me and the car is unbearable to drive now. How can the CPA help me and what advice can you give me? I did draft a letter with regard to the fault and complaints, I wouldn’t mind emailing it to you. Thanks you, Sherwin.


  12. MagnumIce on March 12, 2012 - 5 pm

    I am a retailer located in East London. My supplier is located in Natal. I sold a product to a customer and it has gone faulty. Who pays the freight costs to send it back for repair or replacement. The item is under warranty.


  13. Nicholas Hall on March 13, 2012 - 12 pm

    You will be liable for the shipping costs. Depending on what your suppler agreements say, you may be able to claim the shipping costs back from the supplier. Alternatively maybe you can come to arrangement with them to split the costs ?


  14. jdcsurfs on March 22, 2012 - 10 pm

    Hi Nicholas

    Less than a month ago I purchased a 2006 Volvo S40 vehicle via a private seller. Prior to the purchase I had, on my expense, a full AA Technical Inspection done by a Dekra Auto branch. The report indicated that there was no major issues wrong with the car with only minor items, e.g. aircon that needed to be refilled, needing attention.

    The seller of the vehicle, a retired senior executive of a well-known 2nd hand executive car dealership in the Western Cape, re-assured me that the vehicle was in perfect condition and that he himself would not purchase vehicles without proper inspection done beforehand by him. He also informed me that although he was retired he still regularly bought and sold second-hand vehicles to supplement his income. He had 2 other vehicles in his garage at that time, besides his personal use vehicles, which was also for sale.

    A basic sales agreement was concluded between myself and the seller which stated that the vehicle was being purchased “voetstoots”, on the condition of a positive Technical Inspection report and that all future repairs would be for the account of the buyer.

    Last week Friday, the 16th of March, the vehicle though started to display random electrical problems and a strange odour was being omitted as well.

    I contacted a Volvo dealer close to me and got a booking for the vehicle for diagnosis the 20th March. I then took the vehicle in that day and later that day was informed that the following items had to be replaced:
    1. Battery
    2. Alternator
    3. Clutch (kit)
    4. Flywheel

    A quote was furnished for the parts and labour to replace the above and it comes to an amount of R24,000. That excludes the labour for the diagnosis which comes to another R1,000.

    I would like to know if I have any recourse under the Consumer Protection Act in lieu of:
    1. Fact that a basic sales agreement was signed with mention that sale is voetstoot and future repair for my account.
    2. The above parts could be defined as wear and tear items?
    3. The sale defined as private and not business transaction although one might argue that because the seller does this on a regular basis (he had 2 other vehicles in the garage at the time which was clearly not for personal use and advertised to me as for sale as well) it is deemed as business transaction.

    I would appreciate your feedback on this matter.

    Kind regards,

    Johann


  15. mysticgifts on May 21, 2012 - 11 am

    Hi, I’m a retailer and I sell my items online on my website and recently sold 60 items to a client. She came back after 2 days after she received the items and stated that some of the items were “cracked”. It turns out that only 15 of the 60 items were faulty.

    She came to my office with the items, and after some discussions she stated that she was under the impression that the items were actually made of crystal. But it clearly states on my website that it was made of acrylic.

    She is now requesting that her money be returned because she changed her mind and wants to purchase other items. Can I refund her for only the 15 faulty items (as I’m not able to source them for her in time), or do I have to refund her the entire amount ?


  16. Nicholas Hall on May 21, 2012 - 11 am

    Hi Mysticgifts,

    Because she bought the goods online, in terms of the ECT Act she can return them to you, for a full refund within 7 days of having recieved them. With this in mind, yes you will need to refund her the full amount, for all 60 items if she wants to return all of them.

    Nicholas


  17. mysticgifts on May 21, 2012 - 11 am

    Sorry, just bit confused because it states that valid reasons for returning if they haven’t seen the items are :

    • Goods which the consumer did not have an opportunity to examine before delivery and where the consumer has now rejected delivery. Valid reasons for rejection of delivery are:
    [*]the type and quality of the goods are not as reasonably contemplated in the agreement; or
    [*]the goods differ in a material respect or characteristic from the sample or product description (based on what an ordinary alert consumer would be entitled to expect); or
    [*]the goods do not reasonably conform to the material specifications of a special order.
    Goods are returned at the risk and expense of the supplier.

    My product page describes exactly how the item look, what it’s made of, the size of the item, how its packaged etc. So isn’t her resposibility to make sure she knows exactly what she is getting ? The only reason she wants to return them is because she expected it to be crystal, even tho I don’t state anywhere it’s made of crystal, and that only 15 were damaged.


  18. Nicholas Hall on May 21, 2012 - 12 pm

    Hi Mysticgifts,

    Yes, but since the transaction happened online, the ECT Act will trump these provisions of the CPA, further in the article under the heading “The ECT ACT” it states;

    the ECT Act has its own consumer protection provisions, some of which will trump the CPA
    If you sell (or buy goods) online then there are some extra things to consider. Most importantly the Electronic Communications and Transactions Act (“ECT Act”) will apply to the transaction. The ECT Act has its own consumer protection provisions, some of which will trump the CPA. Specifically the reasons (1)-(3) for returns listed above do not apply if the ECT Acts provisions apply to the transaction. Instead of these rights of return consumers have;
    a general right to return (a ‘cooling off period’),
    for seven days after delivery,
    for any reason,
    without penalty, but
    the consumer will be liable for the costs of returning the goods.
    Since the ECT Act has been around since 2002, if you have an online store, your returns policies should already be in-line with these provisions.

    Because of this the customer is entitled to return the products within 7 days for any reason.

    Nicholas


  19. SusanF on May 21, 2012 - 5 pm

    I also have an online shop, but I sometimes let my clients come view the items beforehand, and then they decide if they want to purchase it. I’m busy updating my t&c’s to be inline with this, and just want to find out if they come to view items before they purchase it, how do I state in my T&C’s that the ECT act only applies to purchases made online? If they’ve seen the items at my showroom, and after lets say 4 days decide they don’t want the items anymore, do I have to give them a refund?


  20. David Luyt on May 25, 2012 - 11 am

    Hi SusanF

    The ECT Act applies to any ‘electronic transaction’. So, if your customers buy the goods off your showroom floor without any part of the transaction happening electronically – then the ECT Act definitely does not apply. However, if the customers just look at the goods on your showroom floor and then go home and buy them through your online store – then the ECT Act and its provisions on returns definitely do apply. The customer would be able to return the goods within 7 days as explained in this post. It is good that you are updating your terms to deal with this, but you need to make sure that they cover all the legal considerations related to an online store.

    David


  21. nmrichardson on October 12, 2012 - 8 pm

    Hi,
    I’m looking for some advice,
    I purchased a battery drill 4 days ago, and I noticed it is not functioning correctly, I took it to the retailer today and requested an in store credit as I wish to change the brand of drill.
    The retailer informs me that he cannot credit me unless his supplier (the manufacturer) credits him, otherwise he will be stuck with goods that he cannot sell.
    Surely the relationship between the retailer and his supplier should not affect me?
    The retailer also informs me that if his supplier repairs the goods then I am not entitled a credit/refund.
    I don’t want this item anymore, am I not within my rights to demand a refund under section 20(2)(d) and section 54(1)(c)
    Many Thanks
    Neil


  22. Karishma on October 23, 2012 - 4 pm

    I bought a laptop that is under a one year guarentee,
    7 monthslate the laptop starts giving me problems, the trackpad was not working, upon taking it to the store ans they repair it however when i picked it up, it refused to work and took it bak to the store, now they tell me that its liquid damage to the motherbosrd and i have to pay R3500. this is ridiculous considering that i had nothing to do with the claims that they are accusing me. now they refuse to give me arefund or a new product.

    YoYour assistance in this matter will be highly appreciated

    Regards,
    Karishma


  23. Esti Louw on November 12, 2012 - 1 pm

    Dear Karishma,

    I would ask them to supply you with the verified report that proves that the laptop was indeed damaged by liquid. If the cannot give you such a proof or report I would demand that they repair the product. Since the 6 months CPA warranty might have lapsed you may not be able to claim for a refund or replacement, but you could claim a repair under their one year guarantee.


  24. Esti Louw on November 12, 2012 - 1 pm

    Dear Neil,

    The supplier cannot refuse to give you a refund if you request it. You are within your rights to ask for a refund, replacement or repair from the retailer and it is not your worry how they reclaim this from the manufacturer.


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