We live in a consumerism society. Given the constant advertising and marketing, it only makes sense to know your rights so that you can protect yourself and not be tricked into paying for something you don’t actually want. With that in mind, the following Sections in the Consumer Protection Act 68 of 2008 (CPA) are especially relevant in the case of offers.
Section 21 – specifically deals with unsolicited goods. Subsection(1)(e) states that goods or services are unsolicited if “any goods have been delivered to, or any services performed for, a consumer by or on behalf of a supplier without the consumer having expressly or implicitly requested that delivery or performance”.
If you find yourself in the position of being billed for goods you did not order (for example, if it is for a “testing period”), the CPA gives you protection. We find this in Sections 21(7) and 21(8) of the Act, which state that:
“(7) A person has no obligation to pay a supplier for unsolicited goods or services, or a deliverer for the cost of delivery of any unsolicited goods.
(8) A supplier must not demand or assert any right to, or attempt to collect, any payment from the consumer in respect of any charge relating to unsolicited goods left in the possession of a consumer, or the delivery of any such goods, or unsolicited services supplied to or for the benefit of, the consumer, except as contemplated in subsection (4).”
With those sections as your backup, it’s simple: don’t be pushed into a corner to accept goods and services being foisted on you when you don’t really want it.
As for the retailer, section 23 is very much relevant to you; as you are obliged to display a price and bound to sell the item advertised at that price. If there are two prices on an item, the retailer must sell it to the consumer at the lowest price.
Section 30 is also applicable to the extent that there is a prohibition on bait marketing. Retailers cannot advertise something at a price to bait consumers to come to them in the hopes that they will buy other items as well. Said another way, retailers can’t get your hopes up only to crush them once you’re in their store.
To clarify, the above, the retailer may not advertise goods at a price as a way to mislead consumers about the availability of those goods. But consumers be careful – this doesn’t mean you’re entitled to have whatever is advertised without any limits – this is why shops often use the “while stocks last” phrase as a disclaimer.
Section 31 – states that there may be no negative option marketing. This refers to a commercial transaction in which the seller interprets the consumer’s failure to take affirmative action, either to reject an offer or to cancel an agreement, as an indication to affirm the existence of the contract. Please don’t be fooled, this form of affirming a contract is not allowed under the CPA.
Section 32 – relates to direct marketing. This is where you offer to conclude a contract, other than one which would be in the ordinary course of business. For instance, it would be where the supplier goes to the consumer instead of other way around.
The classic example is when people show up to your door trying to sell you something. These kinds of sales are not generally considered to be actionable (you wouldn’t take door-to-door sellers to court). The problem, however, is when suppliers get overconfident and use high pressure tactics to sell you their goods and services.
To curb this kind of selling and pressure tactics, Section 32 says where a supplier is engaged in direct marketing, they must let the buyer know of his or her cooling off right (5 business days to change their mind and end the contract without any consequences).
If you find yourself wanting to know more on the rights and the obligations that are placed on consumers, suppliers and retailers in terms of the CPA, the above-mentioned sections will be an excellent place to start. If you are still unsure, please don’t hesitate to contact us, we will be happy to provide you with the legal clarity you may need.