When is a consumer entitled to a refund?

Despite tough economic circumstances amidst the COVID-19 pandemic, shops continue to advertise big sales, discounts, and promotional offers. Whether it is Black Friday, Boxing Day, or just an end-of-season sale, there seems to always be a reason for a sale. The question that the consumer may have is: What if I buy something, on a sale or otherwise, and later change my mind about it — am I always entitled to a refund?

As a point of departure, there is no general right of return in South Africa’s consumer law — a consumer cannot simply return a product because they had a change of heart. This is the general rule, and therefore some suppliers may allow consumers to simply return goods when they have changed their minds. In order to avoid disappointment, it is good practice for a consumer to read the Refund Policy of a specific establishment before making any purchases.

The Consumer Protection Act allows for certain instances in which a consumer may return the goods and cancel the contract without paying any penalty. These circumstances are set out below.

1. Direct marketing
   If a consumer bought goods as a result of direct marketing, a five-day cooling-off period applies. A consumer may then, within five days of receiving such goods, return the goods for a refund.
2. Goods do not meet a particular purpose
   If a consumer informs a supplier that the goods are being bought to fulfil a particular purpose, and the supplier advises that the goods will meet this particular purpose, then the consumer can return the goods ten days after receiving the goods if it does not meet such a purpose.
3. Goods that have not been seen before the purchase
   If a consumer did not have the opportunity to examine the goods delivered before the purchase, the consumer is entitled to inspect the goods upon delivery. If during this inspection, the consumer finds that the goods do not meet the ‘type’ or ‘quality’ that they reasonably expected, they may refuse delivery and receive a full refund.
4. Implied warranty of quality
   Goods that are sold to a consumer are sold with an implied warranty of quality, regardless of the contract between the parties. This implied warranty gives the consumer the right to receive goods that are reasonably suitable for the purpose that they are intended to be used for, are of good quality, free of defects and in good working order, and that will be durable and usable for a reasonable period of time. If the goods do not meet this requirement, the consumer can, for up to six months after receiving the goods, either return the goods, get the goods replaced or get the goods repaired. The supplier can only exclude liability in these circumstances if the supplier made the consumer aware of the specific defects and the consumer agreed to receive the goods in that condition.

Conclusion:

It is important to keep in mind that the Electronic Communications and Transactions Act (“ECTA”) will apply to goods and services that are bought online. ECTA has its own consumer protection provisions that apply to online transactions.

Although a consumer is well-advised to read or ask about a supplier’s refund policy before purchasing goods, it is important to note that a supplier cannot contract out of the Consumer Protection Act. The remedies explained above will, therefore, always be available to consumers, if the requirements set out in the Act are met. Consumers may direct complaints that they have regarding suppliers or refund policies to the National Consumer Commissioner.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)