What does that mean to the supplier & consumer in terms of section 21 of the consumer protection act 68 of 2008 (hereafter referred to as the act)?
Unsolicited goods are goods:
- Delivered, after direct marketing, to a consumer where goods were left in the possession of the consumer without requiring or arranging form payment;
- Delivered at a date, time and place agreed upon with the consumer and the consumer rejected the delivery;
- Delivered in excess to what was agreed upon with the consumer;
- Delivered without express consent by the consumer for such delivery.
Prior to the Act, if the consumer took possession of the goods, it is regarded as being sold and the supplier could demand payment for those goods.
With the Act, the supplier must inform the consumer within 10 business days after delivery that the goods were delivered in error. The goods become unsolicited if the supplier fails to collect the goods within 20 business days after informing the consumer of such error.
The consumer may not disturb the process of collection by the supplier. Section 21 (4) provides that the supplier does have a claim for the recovery of damage or additional costs he/she incurred due to a person who has done anything to frustrate or impede the lawful recovery of those goods. By disturbing the process of a lawful recovery can be seen as prohibited conduct and the consumer may be subject to an administrative fine in terms of section 112(1) of the Act.
Is there an obligation on the consumer to inform the supplier of such goods delivered in error? According to Stoop & Taylor[1]
From the wording of section 21(2)(b), it appears that goods will only be unsolicited if the consumer informs the supplier that the goods were misdelivered: “the goods become unsolicited goods only if (own emphasis) the recipient informs the apparent supplier or the deliverer that the goods were misdelivered. It, therefore, appears that the supplier must be informed of the misdelivery as a prerequisite for such goods to be treated as unsolicited by the consumer. The CPA does not prescribe the manner in which the consumer must inform the supplier of a misdelivery.
The consumer cannot be held liable for any unsolicited goods nor the costs involved in the recovery of such goods. Should the consumer have made payment for such costs, the supplier must refund such costs to the consumer.
The consumer is also not liable for any loss or damage to the unsolicited goods in his/her possession, other than loss or damages caused by the consumer’s intentional interference with such goods.
Should the supplier fail to collect unsolicited goods within the prescribed time period, the consumer may charge the supplier a reasonable storage fee.
To conclude it is advisable that suppliers deliver goods or services correctly from the start to avoid the above process.
ABOUT THE AUTHOR
Yolande Iversen obtained her LLB Law Degree from the Nelson
Mandela Municipality University in 2011. She embarked on her journey at SEESA
Labour in August of 2011 as a Legal Assistant. She was promoted to the position
of SEESA Labour Legal Advisor in 2014. In September 2017 she was selected to
also be part of the SEESA Consumer Protection & POPI department.
[1] Philip N Stoop & Heidi Taylor Aspects of Unsolicited Goods or Services in Terms of the Consumer Protection Act 68 of 2008: An Analysis 2014(77) THRHR 296 at 300.