The Consumer Protection Act, 68 of 2008, came into effect to protect consumers against big businesses and their availability of more resources. Consumers often feel that because there are no cost-effective remedies easily available to them, they are pressured into accepting the terms of the agreements offered by these businesses to their detriment. An example of this may be viewed in contracts for the sale and purchase of cell phone devices with the various mobile network retail stores.
Certain mobile network providers include a particular clause in their cell phone contracts with consumers known as the “warranty clause”. Within this clause, the network provider defers any liability it may incur for defective devices to a third party, i.e. the manufacturer of the device in question. It is essential to note that no contractual provision is automatically valid or binding upon a contractant despite their signature of the contract.
The validity of a contract is determined by the satisfaction of certain criteria. The most essential of which, and for a valid contract to take effect, is the requirement of legality. All contractual provisions must be in line with the relevant legislation governing the particular type of contract or transaction. Therefore, should any contractual provision or the effect thereof be in violation of that which is contained in legislation, then that provision is legally invalid.
The Consumer Protection Act, 68 of 2008, Section 55 provides that a consumer has a right to good quality goods. Section 56 thereof further provides that a product which becomes defective within six months of purchase may be returned and the consumer is entitled to demand a refund, a replacement or that the defective item be repaired at the expense of the seller of the goods. These provisions contained in the Consumer Protection Act are clear as to the rights of the consumer. However, there are businesses which are still reluctant to give in to the consumer’s demand and thereby attempt to enforce the “warranty clause”. These are bullying tactics and should not be tolerated by consumers.
Rule 44 in the Regulations to the Consumer Protection Act, 68 of 2008 provides that any contractual provisions which have the purpose or effect of restricting the legal rights or remedies of the consumer or which have the purpose or effect of deferring liability of the supplier/seller to a third party are presumed unfair. The onus is therefore placed on the supplier/seller to prove that the provisions in question are fair.
Should consumers feel that they are being bullied by the seller of the goods they purchased, they may approach the Consumer Protector and lodge a complaint. Consumers may also approach an Attorney or the Clerk of the Small Claims Court with all their documentation for advice on their claim and the way forward in their matter. It is essential that consumers not be fearful of the law and legal process as it protects the consumer’s rights.
The procedure for lodging a claim in the Small Claims Court may be found below.
For further information, please do not hesitate to contact us.