Introduction

The main aim of the Consumer Protection Act No. 68 of 2008, as amended, (the “CPA”) is to protect the rights of the consumers in South Africa. Although many consumers are aware of the existence of the CPA, not many are familiar with the actual rights relating to the return of defective or unsafe goods and what they can claim from a supplier.

Rights in terms of the CPA

In terms of Section 56(2) of the CPA, a consumer may return goods to a supplier, without penalty to the consumer and at the supplier’s own risk and expense, if the goods fail to satisfy the requirements and standards contemplated in Section 55.

Section 55 stipulates that goods have to be reasonably suitable for the purposes for which they are generally intended, of good quality, in good working order and free of any defects and should be useable and durable for a reasonable period of time (having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply).

Should a consumer receive any goods that fail to adhere to the requirements set out in Section 55, it can be returned to the supplier within six months after the delivery of the goods. The consumer may then request that the supplier either repair or replace the failed, unsafe or defective goods or refund to the consumer the full price paid for the goods.

However, a consumer will not be able to return a second-hand item because it was defective or not suitable for the purpose if the consumer:

  • agreed to receive it in that condition, or
  • was made aware of the specific defect/s.

A consumer needs to remember that a supplier cannot force him/her to choose to have the goods repaired, if he/she prefers a refund or a replacement.  A consumer can also insist on a cash refund instead of store credit or vouchers or on a replacement with something similar at no additional cost to him/her.

The supplier may also not force a consumer to purchase a more expensive model, version or brand and must, as mentioned, cover all the costs of repairing, collecting or replacing the defective goods.

What about specific return policies?

Consumers often come across specific return policies, i.e. 7 days or 14 days.  However, in terms of the CPA, these policies have no basis and are not enforceable when it comes to defective or unsafe goods.

Section 56 contains what is known as an ‘implied warranty of quality’, which essentially provides that the supplier must, irrespective of the supplier’s policy, repair, replace or refund the full price paid for the returned goods if they are not in line with Section 55.

What if the supplier refuses to co-operate?

A consumer may only approach a court and take legal action if all the avenues of recourse listed in Section 69 of the CPA have been exhausted

[1].

The dispute resolution mechanisms available to a consumer in terms of Section 69 include:

  1. referring the matter to the National Consumer Tribunal directly;
  2. referring the matter to the applicable ombud with jurisdiction, e.g. the Short Term Insurance Ombud;
  3. referring the matter to the applicable industry ombud accredited in terms of Section 82(6) (for example the Motor Industry Ombudsman of South Africa and the Consumer Goods and Services Ombud);
  4. referring the matter to the consumer court within the jurisdiction;
  5. alternative dispute resolution; and
  6. filing a complaint with the National Consumer Commission.

Once all these options have been exhausted, a consumer can approach a relevant court of law with jurisdiction over the matter.

Conclusion

It is important to note that there is no general right of return. A consumer cannot return an item simply because he/she had a change of heart, merely does not want it anymore or needs the cash back due to sudden financial constraints.

However, consumers should be aware of the basic rights he/she has in terms of the CPA so as to avoid having the wool pulled over their eyes by a supplier or a returns policy that is not in line with the CPA.

If you need any assistance to enforce your rights under the CPA, do not hesitate to contact us.

[1] Joroy 4440 CC t/a Ubuntu Procurement v Potgieter N.O. and Another 2008 (4) SA 367 (CC).

This article should not be used or relied upon as professional advice and is for information and marketing purposes. Please consult with one of our attorneys should you need legal assistance relating to this area of law.