In our current economic climate, the last thing you need is a supplier that makes it difficult, or flatly refuses, to refund you when the delivered good either does not meet your expectations or is generally not suitable for use. Several online shops operating on social media platforms or small businesses may openly stipulate that they have a “no refunds / no returns policy” once they have provided you with the requested goods. The question that arises from this is whether a consumer who engages with such an establishment is simply left without recourse? This legal insight discusses some of the rights in the Consumer Protection Act 68 of 2008 (“CPA” or “Act”) that entitle a consumer to refund or return goods.
The consumer right to return goods
In terms of section 20 of the CPA, a consumer is entitled to return goods and receive a refund of consideration paid in respect of the goods where the supplier has delivered goods:
• as a result of direct marketing and the consumer has decided to cancel the contract during the 5-day cooling off period (direct marketing would occur where a supplier has approached a consumer via mail, electronic communication (email, text messaging) or in person);
• that the consumer did not have an opportunity to examine before delivery, and the consumer has subsequently rejected delivery of those goods as contemplated in the Act;
• that are of a mixed nature, and the consumer has refused delivery of any of those goods, as contemplated in the Act; or
• that are intended to satisfy a particular purpose communicated to the supplier however the goods have been found to be unsuitable for that particular purpose.
Goods should be returned within 10 business days after delivery to the consumer. Upon return of the goods, there is an obligation on the supplier, in terms of section 20(5) of the CPA, to refund the consumer the price that was paid for the goods, less charges that may be reasonably be deducted as a result of restoration and related costs. However, right to return goods is limited by the CPA in two instances. First, where for public health or similar reasons, a public regulation prohibits the return of such goods once they have been supplied. Secondly, where such goods have already been used or significantly physically altered.
Implied warranty of quality
In addition, section 56 of the CPA also provides for the implied warranty of quality. This means that there is an implied provision that the persons supplying the goods warrants that the goods comply with the consumer’s right to safe and good quality goods as envisaged in section 55 of the CPA. This implied warranty will, however, not be applicable in instances where the goods have been altered contrary to the instructions of the persons in the supply chain, or after leaving their control.
In terms of this implied warranty, the consumer is allowed to return the goods to the supplier within a period of 6 months without penalty and at the supplier’s risk and expense, where the goods do not meet the standard for quality goods as set out in section 55 of the Act. Where a consumer has returned the goods in this manner, the supplier has two options, i.e., to (i) repair or replace the goods; or (ii) refund the price paid by the consumer for the goods. Where the supplier has opted to replace, and within three months from the date of the repair, it appears that the defective or unsafe feature has not been remedied, then the supplier must either replace the goods or refund the consumer the price that was paid for the goods.
In conclusion
What is clear is that the “no refund | no return” policies that are often advertised may well be contrary to the CPA and therefore, unlawful. Suppliers and small business owners are urged to ensure that, if the CPA applies to their businesses, then their policies must be in alignment with the applicable legal regime. As a consumer, you are not without recourse and where you are deprived of your right to exercise a legally enshrined right, you are encouraged to approach a suitable consumer law enforcement body to enforce your rights.
Tshepiso Scott, Director
