By SIZIPHIWE YUZE, Rhodes University Law Clinic
Buntu purchases a kettle from a retailer. The kettle’s element is faulty, and after a few days stops heating the water. He goes back to the retailer after a week to complain. The store tells him that this is “not their problem” as its “store policy” is that it will only consider complaints within five days of purchase.
Is this legally acceptable? The answer is an emphatic “no”.
The Consumer Protection Act provides consumers with a right to goods and services of fair value, good quality and safety. Buntu’s kettle is defective, meaning it has a material imperfection rendering it unfit and of no value for the purpose for which he bought it. Section 55(2) of the Act sets out that every consumer has the right to receive goods that (a) are reasonably suitable for their intended purpose; (b) are of good quality, in good working order and free of visible or hidden defects; (c) will be useable and durable for a reasonable period of time; and (d) comply with any standards set out in the Standards Act. Since Buntu’s kettle is defective, his rights under section 55(2) have not been met.
This brings into play section 56 of the Act. Section 56(1) reads into every consumer contract a warranty (or guarantee) – a promise that the goods sold by the retailer comply with the requirements and standards set out in section 55(2). In Buntu’s case, the retailer has breached this term of the contract. This provides Buntu with the remedies set out in section 56(2) of the Act, which also attach to the consumer contract by the operation of law, and which cannot be excluded or avoided by the retailer. Within six months after the delivery of goods to a consumer that are found to be defective, the consumer may return the goods to the supplier, without penalty, and at the supplier’s expense (so, for example, if Buntu had bought the kettle through an online retailer, the online retailer would have to pay to courier the goods back).
Once the goods are returned, the supplier must either (a) repair or replace the failed, unsafe or defective goods, or (b) refund the consumer the price paid for the goods. Most powerfully of all, section 56(2) stipulates in absolute terms that the choice of remedy is that of the consumer. The retailer or supplier may not dictate which remedy you may choose in this six-month period – the choice is yours as the aggrieved consumer. It is only if the defect emerges after the six-month period that any further product warranty (for example a two-year warranty on a refrigerator or stove) will be applicable, and any store policy incorporated into the contract – for example, that the remedy will be at the choice of the supplier, and repair will always be the default option – will be applicable.
A further similar warranty applies to any repair done to the goods, and any parts or labour supplied in this regard, for a period of three months, in terms of section 56(3) and s 57 of the Act.
Section 61 of the Act also makes the supplier liable for any financial loss caused by the supply of unsafe, defective or hazardous goods. So, for example, if the fault in Buntu’s kettle causes an electrical fault in his home that has to be repaired by an electrician, Buntu could claim this expense from the supplier.
Section 60 of the Act imposes an obligation on suppliers to monitor the safety of their products and to recall goods that are identified as being unsafe or not in compliance with legal standards.
Although the focus of this discussion has been on defective goods purchased by a consumer, section 54 of the Act also provides a consumer with the same rights in respect of those who supply a service – for example, plumbers, electricians or builders. You have a right to the timely performance of such services in a quality fashion, and any installation of goods associated with the service must be done without defects and in good working order. If you are dissatisfied you may require the supplier to remedy the problem or to refund a portion of the price paid, having regard to the extent of their failure.
