A press release from the office of the Consumer Goods and Services Ombudsman has been doing its rounds stating it has received several complaints relating to returns. Clothing, in particular, has drawn the most attention during level 4 lockdown where it was stated that suppliers are not allowing fittings or returns and that consumers only find out about this when they attempt to return.
Ms Magauta Mphahlele, the CGSO Ombudsman stated that “lockdown related returns policies must be judged against the very real health concerns regarding the spread of the virus and measures to mitigate this. “The CGSO fully understands why suppliers would want to limit the fitting and return of clothing because of the potential of the virus to be spread. However, a balance must be struck between the very necessary measures required to minimise the spread of the virus and compliance with the Consumer Protection Act (CPA)”.
Suppliers of goods and services have the right to, in terms of the CPA, implement their own refund and return policies. Section 18 provides the consumer with the right to choose and examine goods. Section 20 and 56 of the CPA allows for the right to return goods. Suppliers are to be cautious not to breach these rights of consumers.
“At the same time, the pandemic and the resulting lockdown restrictions to curb its spread presents new challenges that are not necessarily fully provided for in current laws. In the absence of clear legal directives, we must find a middle ground that will allow for the management of the spread of the virus and taking care of consumers’ rights”, said the Ombudsman.
It is further stated that Section 20 of the CPA states that if a consumer walks into a clothing store and buys clothing without fitting them, the store is under no legal obligation to accept the return of the clothing as long as the clothing or any other goods are not defective. In this instance, the consumer is allowed to exercise the discretion whether to fit or not so the suppliers cannot be held liable if the clothes do not fit or the consumer changes their mind for any other reason. Where there is a specific prohibition on the fitting, then there is a contravention of Section 18 of the CPA which accords the consumer the right to choose and examine goods to ensure that they are fit for the purpose.
In the event that consumers are accorded the right to choose and examine goods and the goods are not defective, suppliers can implement their own refunds and returns policies. An example used was that some suppliers would require that clothing be returned within a specific number of days, with the price tag attached and a receipt. Some will have a no returns and refunds policy. These types of policies fall outside the ambit of the CPA and are entirely up to suppliers.
Section 20(3)(a) of the CPA precludes the return of any goods for reasons of public health or otherwise, where a public regulation would prohibit the same. It was further stated that while there are valid public health concerns regarding the spread of the virus, the CGSO is of the view that it may be possible to mitigate this risk by allowing fitting and returns under strict health conditions to accord the consumer the right to ensure that the clothes are fit for purpose and minimise the need for clothes to be returned. Without allowing consumers to fit, it is difficult to see how a no return policy can be justified, even under lockdown.
We are reminded that when purchasing online, goods that are bought based on a sample or description should fit the sample or description when delivered. Where this is not the case, the consumer has a right of return and refund. At the same time, Section 44 of the Electronic Communications and Transactions Act allows the right to return goods without reason within 7 days of receipt of the goods.
Consumers are to be made aware of any new lockdown refund or returns policies. It is important that websites are updated to reflect such policies where they do exist. New policies should be displayed in-store to inform consumers prior to them making purchases. This allows for informed decision making by the consumer. The handling of goods should be clearly set out in these policies to minimise the spread of the virus and to inform consumers on the procedures suppliers undertake to implement to disinfect returned goods.
Seeing that South Africa will be moving to Level 3 from the 1st June 2020 and that wholesale and retail trade will be fully opened, including stores, spaza shops, informal traders, as well as E-commerce, all suppliers are to ensure that all policies and procedures are up to date.
Should you require any assistance or consumer-related advice, please contact your nearest SEESA office, or SMS the word “SEESA” to 45776 for professional legal advice.
ABOUT THE AUTHOR
Ashlin Naidoo is an admitted attorney, obtaining his LLB degree from the University of KwaZulu-Natal. He worked as a professional assistant prior to joining SEESA and specialised in civil litigation. He is currently a SEESA Consumer Protection & POPI legal advisor at our Durban office.