Your Rights Explained

Any item you buy has, in addition to any other warranty (sometimes called a guaranty), an automatic 6 month warranty that it will comply with the requirements listed in the previous paragraph.

If anything goes wrong within the 6 months, you can return the item and require that it be repaired or replaced, or ask for a full refund, unless the problem is minor. In that case, the supplier can remedy it within a reasonable time.

The supplier may inspect the item to establish the cause of the problem but may not repair a significant problem without you agreeing to that.

The supplier may not force you to purchase a more expensive model or brand and it must bear the costs of repairing, collecting and/ or replacing the defective goods. It may not charge for usage or wear and tear on the returned product.

If you agree to a repair and within three months the same problem reoccurs, the supplier must either exchange the item or give you a refund.

You are not required to return the original packaging, but you may be called upon to prove you purchased the item.

Exceptions

The above rules regarding refunds do not apply if:

(a) You were specifically told that the particular goods were offered in a specific condition (e.g. that they were in some way defective); or

(b) The goods were altered after leaving the control of the supplier (damaged or tampered with by the consumer).

Store refund policy

The above rules regarding refunds apply irrespective of the store’s refund policy or the terms of the manufacturer’s guarantee/ warranty.

In other words, the store’s refund policy or the terms of the manufacturer’s guaranty/ warranty cannot override the CPA requirements, but they can go further than or offer more rights to the customer than the Act does. For example, the CPA only requires a supplier to accept a return if there was something wrong with the goods, as explained above. A store’s policy, however, may be to accept (for a refund) goods returned within a specific period and with their original packaging even if there is nothing wrong with them and the customer has merely changed their mind.

The manufacturer’s warranty may extend beyond the 6 months provided by the CPA warranty but its terms and conditions must be fair or be brought to the attention of the consumer if they are of an unusual or onerous nature.

Voetstoots

This means that the seller is not liable for diseases or defects in the item sold and it is sold “as it stands” or “with all its faults”.

The CPA ensures that suppliers do not deprive consumers of their right to quality goods by relying on a voetstoots clause. This does not, however, prevent a supplier from escaping liability for defects that were brought to the attention of the consumer and that the consumer accepted.

Past sell by/ use by date

The ‘best before’ dates are more about quality than safety… So when the date runs out it doesn’t mean that the food will be harmful, but it might begin to lose its flavour and texture.

There are, however, foodstuffs that should be stored and used with extreme caution irrespective of age, such as fish, chicken, and offal. Dry food and undamaged tinned food are generally safer but tinned sardines in tomato sauce pose a danger as the acidity of the tomato sauce can corrode the can.

If you discover that you were sold “expired” goods and the quality is not as good as expected, you may request a replacement or refund.

If you do become sick after eating something that has gone off, see the section on food poisoning.

Damages arising from defects in goods

Under section 61 of the Consumer Protection Act, you are able to claim against suppliers and manufacturers of goods (including food) for damages or injuries suffered by them as a result of using or consuming the goods, irrespective of whether or not there was any negligence on the part of the supplier or manufacturer.

The type of harm for which a person may be held liable includes:

• The death or illness of, or injury to, any person;
• Damage to property;
• Any economic loss that results from the types of harm listed above.

Economic loss means indirect financial losses that might result, such as loss of income, hospital bills etc.

Whether you can claim for emotional shock is considered below.

The claim for damages must be brought within three years of the death or injury of a person or the latest date on which a person suffered any economic loss.

Although you no longer have to prove negligence in order to recover damages, it is still necessary for you to prove that it was the defect in the goods sold to you that caused you the loss. This is why it is necessary for you to collect as much evidence as possible.

Food poisoning

A number of microorganisms cause food poisoning, with the following symptoms:

• Vomiting
• Stomach Cramps
• Diarrhoea
• Nausea
• Fever
• Headache
• Muscle Aches
• Shivering
• Tiredness / Fatigue

Cooked foods are generally safer than uncooked foods, provided that they are thoroughly cooked and consumed quite quickly after cooking.

Thoroughly cooked foods that are kept for a period of time must be refrigerated and then only for a maximum of a few days. However, cooked foods can also be potentially dangerous under certain circumstances:

• If they have not been prepared under hygienic conditions; or
• If they have been contaminated after cooking, and not reheated thoroughly before being consumed.

If you become ill as a result of eating tainted food, you may claim for damages. See: Damages arising from defects in goodsabove.

Whether you can claim for emotional shock is considered below.

Claims arising for food poisoning

I have suffered from food poisoning, what do I need to know and do in order to make a claim?

Call the Environmental Health Officer of the local municipality

Seek medical advice and obtain medical evidence

Call your medical aid

Keep as much evidence as possible

Take the matter up with the outlet

Other steps

Call the Environmental Health Officer of the local municipality immediately if you think that you were infected by eating food you purchased. They will then be able to investigate and take action against the outlet in question. Having an Environmental Health Officer’s report will also greatly assist you in any compensation claim you make.The quicker they are aware of your problems, the sooner they will be able to begin their investigation. It is not unusual for food poisoning cases to come in ‘clusters’ or outbreaks affecting a group of people. The quicker the Environmental Health Officer can get in touch with fellow victims and have the supporting evidence the better your case is to prove.

It is essential that you also do the following:

• Seek medical advice and obtain medical evidence of your misfortune. You should preferably have a specimen of faeces or vomitus sent away for testing to a medical laboratory – speak to your doctor or local hospital about this as they will know what kind of test(s) to ask for based on the symptoms you are showing; keep the medical reports and document everything you can, such as :

o How soon after your last meal did you get the first symptoms of foodborne illness?

o Note all the symptoms of illness you are experiencing as they happen;

o List all (or as many as possible) foods you ate in the past 5-7 days, but particularly in the last 48 hours;

o Add where you ate those foods or where you purchased them to your list;

o Ask anyone who may have eaten the same food as you, whether they are also experiencing the same or similar symptoms;

o Get the medical practitioner to give you a “sick note”;

o Keep the receipts for medical treatment, testing and medicines.

In case you have to seek health advice it is quite crucial that you simply tell the doctor exactly what happened and who or what you believe is the cause. Remember that more common food poisoning symptoms such as vomiting and diarrhoea can be caused by other medical problems, therefore it may be a challenge to pin the issues down to a particular event unless the medical information is as accurate as possible.

• Call your medical aid to find out what tests it will pay for. Bear in mind that if you cannot make out a case against the supplier of the tainted foodstuff, you may have to bear the cost of any tests done.

• Keep as much evidence as possible. If you have any left-over food from a restaurant or food service outlet and it has been refrigerated or frozen, have that tested as well by the same medical laboratory to see whether the same bacterium or toxin in question is present in both your faeces/vomitus and in the left-over food (please note however, that it is difficult to test for viruses in food and many laboratories are not able to do this and such tests are also very expensive; so if the organism is a virus, the chances are that it will not be found). Freezing food usually does not damage bacteria or their toxins and so the chances are good that these will be recoverable from frozen food, which has been thawed before testing. If you believe your illness has arisen from a product you bought from a shop or supermarket then try and keep the packaging or even the actual product itself. Likewise any receipts or evidence of purchase from a cafe or restaurant, food outlet or takeaway could be useful.

• Take the matter up with the outlet that you believe supplied you with the tainted food.You should for obvious reasons do this after you have alerted the health authorities and they have carried out an inspection.

• Other steps: If your claim is not met by the outlet, contact its central complaints department, if it has one or, if not, report the matter to the National Consumer Commission ((012) 940 4500) or an ombud that has jurisdiction over the supplier, or to the Restaurant Association of South Africa ((021) 914 9693).

Based on information provided by Professor Lucia Anelich from Anelich Consulting. See www.anelichconsulting.co.za for more information.

Claims for emotional shock arising from contaminated food

What is emotional distress or Shock?

Emotional distress or shock is the shock suffered by a person when they discover or see something unpleasant or disturbing.

What is contaminated food?

Contaminated food is food that contains some foreign object or has an ingredient that makes it repulsive to some persons. The contamination or tainting of the foodstuff may be in various forms: physical (an object), chemical (harmful chemical), biological (living organism) and psychological (e.g. horse meat).

Do I have a claim for the shock I suffered?

The Consumer Protection Act (CPA) covers claims for damages for injury or illness, such as for medical treatment, caused by food proven to have been contaminated. It does not, however, mention damages for emotional shock. It may, nevertheless, be possible to make a claim of this sort, but only if you can prove that:

• The shock was caused by something that was wrong with the food item (it was contaminated); and
• The shock actually caused or led to:

o a physical injury (e.g. a heart attack); or

o an illness of an ongoing nature, such as post-traumatic stress (a condition that is difficult to prove). This would require convincing medical evidence.

Where the shock does not result in psychological/ physical illness, you would need to claim through the ordinary court process. In order to succeed in such a claim, you would usually need to prove negligence on the part of the supplier or manufacturer and that the emotional distress was serious (not trivial) and long lasting. Our courts usually make nominal (small) awards in such cases and are highly unlikely to make million rand awards like those we hear about being made in America.

Can the CGSO deal with claims of this sort?

Although none of the CPA dispute resolution and enforcement structures may make an order for the payment of damages, this does not prevent an ombudsman from assisting the parties in reaching a fair and realistic resolution in respect of such claims.

What should I do if I believe that food I bought was contaminated?

• Escalate the complaint to management
• Keep/ freeze all the evidence.
• Get medical care if necessary.
• Document the proof of purchase with an invoice, receipt or credit card record.
• Take photos of the object, all the packaging, the receipt and all other physical evidence and any injuries.
• If the food came from a restaurant, bakery or catering company and the contamination amounted to a health hazard, file a complaint with the local health department as soon as possible. [1]

What would happen if I made a false claim?

There are various civil and criminal protections available to suppliers to guard them against bogus or fraudulent claims. Anyone making a false claim may actually be prosecuted for fraud or be sued by the supplier for loss of profits and damage to reputation. Further, CGSO is entitled in terms of the Code to reject frivolous or vexatious claims and those that have no prospect of succeeding.

Incorrect Price

The following principles apply:

1] Advertised price

If a supplier advertises goods at a specified price and the advertisement expressly states a limitation in the numbers available, the supplier must honour the advertisement terms, to the extent of the expressed limits.

If, however, no limit is expressed, the supplier is not bound by the advertisement but would nevertheless be liable for contravening the section. If you have suffered loss or damage as a result of prohibited conduct you may institute a claim in civil court after obtaining a certificate from the Tribunal to the effect that the conduct complained of was prohibited or required by the CPA.

If a price is published in a catalogue, brochure, circular or similar, the supplier is not bound by it after correcting the error and taking reasonable steps in the circumstances to inform consumers of the correct price.

If, however, the advertisement was on TV, Radio, in a newspaper etc, the seller would not be liable if advertisement would not have misled or deceived a reasonable consumer.A reasonable consumer would not be misled by such a massive error.

Example: A car dealer intending to advertise a model of car for R 500 000 but omits a zero from the advertisement, creating the bargain price of R 50 000.

1. a) If the advertisement states a limit to the number available, it depends upon how the car was advertised:
2. i) In a brochure or similar, the error would be binding unless the supplier took reasonable steps to correct it and inform the customer
3. ii) On TV, Radio, in a newspaper, there would be a binding offer to sell that limited number at the incorrect price
4. b) If there is no limit to the number of cars for sale in the advertisement, the error in this case is so large that it would not mislead a reasonable consumer, so there is no claim. Had the error instead been a matter of a few thousand rand, the advertised price would have been binding.

2] Displayed price

In the case of displayed price/ ticket errors, the supplier is bound until the consumer is informed. If the consumer acts in a manner consistent with buying the item prior to being informed of the error, the consumer is entitled to pay the error price e.g. the consumer takes the item (or the product details if to be delivered or collected from dispatch) to the till with the intention of paying for it or places the order with the sales assistant and the cashier/ sales assistant then informs the consumer of the error.

Services include repairs, construction, painting, gardening, dressmaking, haircutting, the provision of any education, information, advice or consultation, transportation of an individual or any goods; the provision of any accommodation or sustenance; any entertainment or access thereto and the right of access, to an event or to any premises, activity or facility.

Standard

You are entitled to services that are performed in a manner and of a quality that persons are generally entitled to expect.

• The service being performed and completed in good time,
• timely notice been given of any unavoidable delay,
• Quality goods being used if they are supplied as part of the service,
• Property returned in at least as good a condition as when it was handed over,
• The return any goods replaced during the service in a clean container,
• The supplier taking reasonable care & diligence in looking after your property.

Remedy

If the supplier fails to perform the service to the necessary standards or as agreed, you may require the supplier to make good any defect or shortcoming or insist on a refund of a portion of the price agreed upon that is consistent with the degree of the shortcoming.

The parties are free to expressly agree upon whether the goods will be delivered and the details of the delivery or how the services will be performed. Make sure that whatever is agreed is clearly recorded as you have important rights linked to delivery.

If there is no agreement, the supplier must deliver the goods or perform the services either on the agreed date and at the agreed time or within a reasonable time after the conclusion of the transaction. If no date or time has been specified for delivery of goods or performance of services, this must not be done at an unreasonable time.

The supplier remains liable for the risk of the goods being damaged or destroyed until they have been delivered to you.

Right to check goods

Before accepting delivery of goods, you are entitled to examine them to make sure they are of the type and quality agreed upon or reasonably match the material (important) specifications, if a special order was placed.

Changes to place or time and date of delivery of goods or performance of services

If the supplier wants to change the agreed arrangements for delivery of performance, you have the option to agree to the change, insist on the delivery, or on performance as agreed, or cancel the agreement.

Delivery of larger quantities of goods

If the supplier delivers more of the goods than were ordered, you can refuse to accept the goods at all or accept and pay for only the agreed quantity of goods and treat the rest as unsolicited goods (considered below).

Delivery of mixed goods

If some of the goods delivered are as agreed upon but others are not, you can accept those that are as agreed and reject the rest or reject all of them.

(Example: if you ordered Granny Smith apples but are sent a mixed batch of Granny Smith and Golden Delicious apples, you can keep and pay only for the Granny Smith apples and send the rest back.)

Your right to return goods

You can cancel a sale and return goods to the supplier and receive a full refund you did not have an opportunity to examine the goods before delivery and you are not satisfied that the goods are of a type and quality that were agreed upon.

If the goods were intended to satisfy a particular purpose that you communicated to the supplier, you have 10 business days after delivery in which to return them, if the goods are unsuitable for that particular purpose.

There may be a charge for necessary restoration costs to make the goods fit for re-stocking.

Note

Check that the goods do what they are supposed to and are not damaged as soon as you can after delivery. If possible, photograph any damage as soon as you notice it.Keep a record of any communication you have with the supplier.

Unsolicited goods

You can keep goods without paying for them if you inform the supplier that they are:

• left without requiring or arranging payment for them,
• different from goods or services previously supplied,
• delivered after the termination of an agreement,
• delivered or performed at the wrong place or time,
• more than the quantity ordered,
• were never requested,

and the supplier does not fetch them within 20 days. (You are not responsible for the cost of sending them back or for any loss or damage.)

Goods are not unsolicited if the supplier informs you of the error within 10 business days and picks them up within 20 business days.

The CPA provides you with the right to cancel an agreement under a limited number of circumstances. There may however be finance consequences that follow the cancellation.

The aim of damages arising from a breach of a contract, which is what a cancellation is, is to put the innocent party (the supplier) in the position that he or she would have been in had the contract been properly performed.

You should not, however, suffer Undue hardship because of the cancellation and the losses that you are liable for are limited to those that flow from the breach and are not too remote. In deciding what charge is fair, the relevant consideration is whether the charge is out of proportion to the harm suffered by the innocent party, in which case it may be reduced to the extent that it considers fair. This can be assessed in three ways:

• By looking at comparable situations where the desired result was achieved;
• By looking at the size of this penalty and the penalties in general in relation to the income and expenditure of the defendant; and
• By exercising one’s sense of fairness and justice.

Where a breach of contract has occurred, the innocent party must take reasonable positive steps to mitigate or prevent the occurrence of losses, failing which his or her claim may be reduced or eliminated. A cancellation policy should:

• Be appropriate to the type of service offered, with regard to the likelihood of being able to, with diligence, rebook the venue/ service;
• Provide that any deposit taken be fair and reasonable and proportionate to the loss that a supplier is likely to suffer if the event/ service is cancelled;
• Provider for a stepped scale of forfeiture of a percentage of the deposit in proportion to the length of notice given, subject to the proviso that, in the event of the venue/ service being rebooked, the consumer will only be charged an administrative fee based on actual costs.

Cooling off/ cancellation periods

Consumer Protection Act

Goods delivered other than as agreed ITO time/ quality/ type or Not fit for intended purpose communicated to supplierPer s.21;

10 business days of delivery

20(4)(a) Return to supplier at the supplier’s risk & expense

20(6) May charge for use

Not reasonably suited for generally intended purpose

6 months from delivery56(2) None

Return to supplier without penalty & at supplier’s risk &expense

Other

E commerce

If the agreement arose from e commerce: Electronic Communications and Transactions (ECT) Act 25 of 2002, s 44:

Goods: may cancel within seven days after the date of the receipt of the goods; or

Services: may cancel within seven days after the date of the conclusion of the agreement.

Credit transactions

Credit transactions not concluded at the credit provider’s place of business: 5 business days cooling off (NCA s 121).

Long-term Insurance

30 day cooling off period.

A supplier may cancel an agreement under the following circumstances:

before the intended date of closure

Cancellation penalty

The amount that a supplier may charge as a penalty for early cancellation is determined by section 14(3)(b)(1) read with regulations 5(2)and (3) (cancellation of fixed term contract) and section 17(4)(cancellation of advanced order).

Section 14 (3) Upon cancellation of a consumer agreement…

(a) the consumer remains liable to the supplier for any amounts owed to the supplier in terms of that agreement up to the date of cancellation; and

(i) may impose a reasonable cancellation penalty with respect to any goods supplied, services provided, or discounts granted, to the consumer in contemplation of the agreement enduring for its intended fixed term, if any;

Regulation 5(2) For purposes of section 14(3), a reasonable credit or charge as contemplated in section 14(4)(c) may not exceed a reasonable amount, taking into account-

(a) the amount which the consumer is still liable for to the supplier up to the date of cancellation;

(b) the value of the transaction up to cancellation;

(c) the value of the goods which will remain in the possession of the consumer after cancellation;

(d) the value of the goods that are returned to the supplier;

(e) the duration of the consumer agreement as initially agreed;

(f) losses suffered or benefits accrued by consumer as a result of the consumer entering into the consumer agreement;

(g) the nature of the goods or services that were reserved or booked;

(h) the length of notice of cancellation provided by the consumer;

(i) the reasonable potential for the service provider, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice and the time of the cancelled reservation; and

1. j) the general practice of the relevant industry.

(3) Notwithstanding subregulation (2) above, the supplier may not charge a charge which would have the effect of negating the consumer’s right to cancel a fixed term consumer agreement as afforded to the consumer by the Act.

Section 17(3) A supplier who makes a commitment or accepts a reservation to supply goods or services on a later date may—

(a) require payment of a reasonable deposit in advance; and

(b) impose a reasonable charge for cancellation of the order or reservation, subject to subsection (5).

(4) For the purposes of this section, a charge is unreasonable if it exceeds a fair amount in the circumstances, having regard to—

(a) the nature of the goods or services that were reserved or booked;

(b) the length of notice of cancellation provided by the consumer;

(c) the reasonable potential for the service provider, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice and the time of the cancelled reservation; and

(d) the general practice of the relevant industry.

Online transactions/ e-commerce

Certain sections or aspects of the CPA do not apply to e-commerce transactions if the Electronic Communications and Transactions (ECT) Act 25 of 2002 applies to them or if the CPA section specifically refers to the ECT Act.

Cooling-off period after direct marketing

44 (1) A consumer is entitled to cancel without reason and without penalty any transaction and any related credit agreement for the supply—¬

(a) of goods within seven days after the date of the receipt of the goods; or

(b) of services within seven days after the date of the conclusion of the agreement.

(2) The only charge that may be levied on the consumer is the direct cost of returning the goods.

Consumer’s rights with respect to delivery of goods or supply of service

Section 46 of ECT:

46 (1) The supplier must execute the order within 30 days after the day on which the supplier received the order, unless the parties have agreed otherwise.

(2) Where a supplier has failed to execute the order within 30 days or within the agreed period, the consumer may cancel the agreement with seven days’ written notice.

(3) If a supplier is unable to perform in terms of the agreement on the grounds that the goods or services ordered are unavailable, the supplier must immediately notify the consumer of this fact and refund any payments within 30 days after the date of such notification.

Disclosure of price of goods or services

Section 43 of ECT:

(1) A supplier offering goods or services for sale, for hire or for exchange by way of an electronic transaction must make the following information available to consumers on the web site where such goods or services are offered:

(h) a sufficient description of the main characteristics of the goods or services offered by that supplier to enable a consumer to make an informed decision on the proposed electronic transaction;

(i) the full price of the goods or services, including transport costs, taxes and any other fees or costs;

(j) the manner of payment;

(k) any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers;

(l) the time within which the goods will be dispatched or delivered or within which the services will be rendered;

(m) the manner and period within which consumers can access and maintain a full record of the transaction;

(n) the return, exchange and refund policy of that supplier;

(o) any alternative dispute resolution code to which that supplier subscribes and how the wording of that code may be accessed electronically by the consumer;

(2) The supplier must provide a consumer with an opportunity—­

(a) to review the entire electronic transaction;

(b) to correct any mistakes; and

(c) to withdraw from the transaction, before finally placing any order.

(3) If a supplier fails to comply with the provisions of subsection (1) or (2), the consumer may cancel the transaction within 14 days of receiving the goods or services under the transaction.

(4) If a transaction is cancelled in terms of subsection (3)—­

(a) the consumer must return the performance of the supplier or, where applicable, cease using the services performed; and

(b) the supplier must refund all payments made by the consumer minus the direct cost of returning the goods.

(5) The supplier must utilise a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned.

(6) The supplier is liable for any damage suffered by a consumer due to a failure by the supplier to comply with subsection (5).