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Repair, Replace or Refund – who’s choice is it?

Repair, Replace or Refund – who’s choice is it?

The Consumer Protection Act (CPA) was introduced to the consumer community in 2011, notwithstanding the phenomenon that 7 years later, the consumer still accepts that the supplier selects the recourse on the consumer’s behalf.

As a consumer, you may have 3 separate potential claims available to aid yourself in a dispute with a supplier; provided that the dispute relates to unsafe, damaged or defective goods or services. These remedies are repair, replace or refund.

What does the CPA say?

Through the interpretation and using of these remedies one have to look at Section 56(2) of the CPA, as it could be seen as just an ordinary recourse, however proper thought should be afforded in choosing the correct remedy.

The contents of Section 56 of the CPA is well known with reference to the consumer’s right to return goods within 6 months if the goods become defective, however, the crux of the matter does not reside with the 6 months factor, but rather the correct selection by the consumer regarding the recourse claimed.

As always, there are exceptions to the rule, and the rule pertaining to refunds does not apply if the consumer was specifically informed that the goods purchased, were offered in a specific condition in terms of Section 55(6) of the CPA.

Taking the above mentioned into consideration, bear in mind that the supplier must at the direction of the consumer supply the remedy. The consumer is within their right to instruct the supplier of their desired remedy, being a repair, replacement or refund of the defective goods purchased. It is important to note that the choice remains that of the consumer and the supplier may not force the consumer to opt to have the goods repaired if the choice was a refund.

The importance of Section 56 of the CPA – Implied warranty of quality

Section 56(2) states that within 6 months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in Section 55, and the supplier must, at the direction of the consumer, either—

(a) Repair or replace the failed, unsafe or defective goods; or

(b) refund to the consumer the price paid by the consumer, for the goods.

(3) If a supplier repairs any particular goods or any component of any such goods, and within 3 months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must—

(a) Replace the goods; or

(b) refund to the consumer the price paid by the consumer for the goods.

What does the court say?

In the Northern Cape Consumer Court under case reference 01/09/2017 in the matter of Nico Tourelle v Yamaha Crescent, the interpretation of Section 56(2) and (3) was argued, with specific reference to the remedy selection of the consumer. In this matter, the consumer selected his recourse, but then requested another remedy when his first recourse selected was not that of a refund.

“ The way in which this right is formulated creates the possibility that it may be interpreted to mean that the consumer can choose between paragraph (a) and (b), but once that choice is made, the supplier can choose whether to repair or replace the goods. The alternative interpretation is that the consumer has the choice between any of those 3. This would mean that the consumer can insist on replacement goods even where the goods can be repaired economically. However, if the legislature intended that the consumer should have a choice between all 3 remedies, the Section would have been phrased so that the supplier must at the direction of the consumer either (a) repair the goods; (b) replace the goods or (c) refund the consumer.

The first interpretation is to be preferred even though it is merely the lesser of the two evils given that the consumer will still be able to choose a refund in cases where it is neither fair nor economical.”

The court emphasised that the consumer had exercised his right in terms of Section 56(2) of the CPA and that the consumer selection had to be honored by the supplier. It was further found that the consumer will be bound by their selection of a remedy.

Suppliers therefore have to ensure that goods sold, comply with the requirements and standards as stipulated in Section 55 of the CPA. Furthermore, suppliers must be alert when consumers exercise their rights in terms of defective goods and act accordingly.

ABOUT THE AUTHOR

Frank Maritz obtained his LLB degree from the University of South Africa. He is a Senior Legal advisor for SEESA Consumer Protection & POPI at the Bloemfontein office and has almost 7 years of hands-on experience in Consumer Protection Legislation.

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