One of the most frequent questions we are asked is when goods can be returned under the Consumer Protection Act (“CPA”). There are a number of sections in the Consumer Protection Act that allow consumers to return goods to the suppliers, but what is important to note, is that there is no general right of return.
For example when you buy an item from a store and the next day you regret spending so much money, or you simply do not like the item in the morning, you cannot return the item simply because you have had a change of heart. Some retailers do allow you to do this, but it is not your legal right to do so.
A change of heart is not a legal reason to return an item.
There are very limited circumstances that are discussed below where you can return an item. However in these cases, even if the law is on your side, the seller can simply refuse to give you your money back, leaving you arguing with a brick wall.
When you can return goods under the CPA
Generally speaking there are only four instances when one can return goods under the CPA.
1) The Direct Marketing Cooling-Off Period.
In terms of s16 of the CPA, if a consumer has bought goods are a result of direct marketing, then for a period of 5 days after receiving the goods, the consumer can:
- return the goods,
- cancel the entire contract without penalty, and
- recieve a full refund.
- The consumer will have to pay the costs to return the goods.
2) Goods which have not been seen before purchase.
In terms of s20 (read with s19) of the CPA, if a consumer has not had the opportunity to examine or inspect the actual goods received before purchase, on delivery of the goods they are entitled to inspect the goods. If on this initial inspection they find that;
The goods do not meet the ‘type’ or ‘quality’ once could reasonably expect from the agreement; or
If the goods where made in terms of a special or ‘custom’ order, and they goods do not reasonably conform to the specifications of the order.
- the consumer can refuse delivery,
- receive a full refund, and
- the consumer can cancel without penalty.
- The supplier is liable for the costs of returning the goods.
3) Goods do not meet particular purpose.
In terms of s55(3) (read with s20) of the CPA, if a consumer informs a supplier that the goods are being bought to fufill a particular purpose, and the suppliers advises that the goods will meet this particular purpose then:
10 days after receiving the goods the consumer can return the goods if it is not suitable for the particular purpose the consumer can cancel without penalty, and the supplier is liable for the costs of returning the goods.
It is important to note that despite the above, the consumer is not entitled to return goods for any of the above reasons (1)-(3) if:
for reasons of public health or public regulation prohibits the return of those goods to a supplier once they have been supplied to a consumer, or after having been supplied to a consumer, the goods have been partially or entirely disassembled, altered, added or combined with other goods or property.
4) Implied Warranty of quality.
In terms of s56 (read with s55) of the CPA, all goods sold to a consumer are sold with an implied warranty of quality, that cannot be contracted out of or revoked. The warranty gives the consumer the right to receive goods that:
are reasonably suitable for the purpose that they are intended to be used for,
are of good quality, free of defects and in good working order, and
will be durable and usable for a reasonable period of time.
If goods are found not to comply with these requirements then;
up to 6 months after receiving the goods;
- the consumer can return the goods, or
- get the goods replaced, or
- get the goods repaired.
The consumer can do any of these things without penalty; and at the suppliers cost.
However a consumer will not be able to return the goods because it was defective (general ‘voetstoets’ clause will be insufficient) or not suitable for the purpose if;
- The consumer was made aware of the specific defects; and
- the consumer agreed to receive the goods in that condition.
Because you have to mention the specific defects and general ‘voetstoets’ clause will be insufficient to get out of the s56 warranty.
A word on ‘refunds’; in-store vouchers or credits are not illegal per se.
Where ever the CPA entitles a consumer to a refund, it must be interpreted to mean that the consumer has the election on how to receive the refund. This means that while refunds as in-store vouchers or credits are not illegal per se, if the consumer demands a cash refund you must give it to them. Also in terms of s56, the consumer, not the supplier has the election on whether to chose the refund, replacement or repair.
The ECT Act
the ECT Act has its own consumer protection provisions, some of which will trump the CPA
If you sell (or buy goods) online then there are some extra things to consider. Most importantly the Electronic Communications and Transactions Act (“ECT Act”) will apply to the transaction. The ECT Act has its own consumer protection provisions, some of which will trump the CPA. Specifically the reasons (1)-(3) for returns listed above do not apply if the ECT Acts provisions apply to the transaction. Instead of these rights of return consumers have;
a general right to return (a ‘cooling off period’),
for seven days after delivery,
for any reason,
without penalty, but
the consumer will be liable for the costs of returning the goods.
Since the ECT Act has been around since 2002, if you have an online store, your returns policies should already be in-line with these provisions.
If you are a supplier of goods, one of the most important things you can do is make sure that your returns policy is in-line with the CPA. A good returns policy coupled with excellent customer services will be essential to avoid complaints to the National Consumer Commissioner.