Consumer rights during a pandemic

Retailers seem to think that the provisions of the Consumer Protection Act (CPA) don’t apply during the lockdown.

Well, they do, even during level 3, said the Ombudsman for Consumer Goods and Services (CGSO), Magauta Mphahlele.

But returns policies need to strike a balance to help reduce the spread of the coronavirus.

Ms Mphahlele said the office has received several complaints about returns, especially of clothing during the lockdown.

Some clothing suppliers are not allowing fittings or returns, and that consumers only find out about this when they attempt to return the items, she said.

“The lockdown-related returns policies must be judged against the health concerns regarding the spread of Covid-19 and measures to mitigate this.

“We understand why suppliers would want to limit the fitting and return of clothing because of the potential spread of the virus.

“However, a balance must be struck between the very necessary measures required to minimise it and compliance with the CPA, which gives suppliers the right to implement their own returns and refunds policies as long as these do not breach the general right to choose and examine items and the right to return goods provided for in sections 20 and 56 of the CPA.

“At the same time, the pandemic and the resulting lockdown restrictions to curb its spread presents new challenges that are not necessarily fully provided for in current laws. In the absence of clear legal directives, we must find a middle ground that will allow for the management of the spread of the virus and taking care of consumers’ rights,” said the ombud.

Sections 20 and 56 lay down the rules for the return of goods and you can find it on or on the trade and industry website.

The CPA doesn’t appear to have made specific provision for force majeure, an Act of God. However, where there is a health danger, as in Covid-19, the goods may not be returned to the supplier.

If a consumer walks into a store and buys clothing items without trying them on, the store is under no legal obligation to accept the return of the clothing as long as the clothing or any other goods are not defective.

In this instance the consumer makes the choice to try on the garment first, so the suppliers cannot be held liable if the clothes don’t fit or the consumer changes their mind.

However, where the supplier specifically prohibits fitting then there would be a possible contravention of the CPA as the consumer has the right to choose and examine goods displayed for sale to ensure that they are fit for purpose.

Where the consumer was accorded the right to choose and examine goods and the goods are not defective, suppliers can set their own refunds and returns policies.

“Currently for change of mind returns: clothes not fitting, for example, some suppliers would require that clothing be returned within a specific number of days, with the price tag attached and a receipt. Some will have a no returns and refunds policy. These types of policies fall outside the ambit of the CPA and are entirely up to suppliers,” the ombud said.

“When fitting, returns and refunds are not allowed for some items where public regulation prohibits them, the consumer has no right of return if for reasons of public health, it is prohibited.

“While there are valid public health concerns regarding the spread of the virus, we believe it may be possible to mitigate this risk by allowing fitting and returns under strict health conditions to accord the consumer the right to ensure that the clothes are fit for purpose and minimise the need for clothes to be returned.

“Without allowing consumers to fit, it is difficult to see how a no return policy can be justified, even under lockdown,” the ombud said.

As consumers are also purchasing through online platforms, it is important to note the provisions of Section 44 of the Electronic Communications and Transactions Act (ECT) Act as well as Section 18 (3) of the CPA which require goods that are bought on the basis of a sample or a description (from a catalogue or online platform for example), to fit the sample and description when delivered. If not, the consumer has a right of return and refund.

The ombud said that Section 44 of the ECT Act allows the right to return goods without reason within seven days of receipt.

“In order to minimise disputes, it is important that consumers are well informed about any new lockdown return and refund policies.

“The FAQs on websites and other online platforms should be updated to cover these new policies.

“The new policies should also be prominently displayed in store and on other platforms so that consumers can make informed decisions prior to purchasing. Clear directives on the safe handling of goods to minimise the spread of the virus should be communicated including any measures that the suppliers will implement to disinfect returned clothing,” Ms Mphahlele said.

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