Squeaky mattress and R4 air fryer: Consumer ombud ensures refunds of R12 million

The Consumer Goods and Services Ombudsman facilitated refunds to the value of R12.1 million for consumers in the financial year 2023/24 after capturing 11 282 complaints and closing 10 140 cases.

Online transactions, manufacturers and retailers of appliances and satellite and communications generated 74% of the consumer complaints received, while e-commerce generated 26% of all complaints.

The ombud, Lee (Liaquat) Soobrathi, said at the release of the annual report this week that online transactions accounted for the greatest number of consumer complaints for the fourth consecutive year, despite e-commerce only making up about 5% of total retail sales in South Africa.

“Almost all of these complaints relate to items not delivered on time (or at all), defective goods, or purchases that do not align with customer expectations.”

Consumers can learn from these case studies to ensure they do not fall into the same trap or know what to do if they have a similar complaint.

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Jersey damaged when security tag removed

A consumer complained that after she bought a jersey, she only noticed that the security tag was not removed when she got home. She returned it to the store to have the tag removed, but in the process, the jersey was damaged when the cashier tried to remove the tag. The consumer then wanted the store to replace the jersey.

The store confirmed that the tag was not removed on the date of purchase, but said when the consumer returned the garment, the security tag was extensively damaged. The store believed that the consumer unsuccessfully tried to remove the tag with a pliers or similar tool before returning to the store to have it removed professionally.

Unfortunately, in the process of attempting to remove the magnetic tag at home, the pin was so damaged that it could not be released in the usual manner. The store also supplied photographs of the damaged tag and the jersey.

According to the Ombud section 56 (2) of the Consumer Protection Act (CPA), consumers can return goods to the supplier within the first six months of purchase for a refund, replacement, or repair should the goods be defective. However, it only applies to goods sold with a material defect.

In this instance, the Ombud found, the jersey was not defective on purchase but became defective after leaving the store because the security tag was tampered with. As such, the supplier is not liable to replace the garment.

Lesson learnt: Never try to remove a security tag yourself – rather return to the store to have it done professionally.

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Squeaky mattress

After a consumer bought a bed, the mattress started to make loud squeaking noises within six months after purchase. The consumer notified the supplier and asked for the mattress to be replaced, but the supplier refused to assist, saying that the mattress was stained.

The ombud referred the supplier to section 56 (2) of the CPA which provides that the consumer may return defective goods to the supplier within six months, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55. The consumer can choose if the supplier must repair or replace the failed, unsafe goods or refund the consumer.

However, the supplier’s response did not address the alleged defect and he opted to dismiss the claim due to a stain on the mattress. After the ombud requested the supplier to do a formal inspection and assessment report, the supplier agreed to replace the mattress under warranty.

Lesson learnt: The supplier must address the issue the consumer complains about.

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No, you cannot insist to buy an air fryer for R4

While shopping online for an air fryer, a consumer spotted a Milex Deluxe Air Fryer 24L for R4 on the supplier’s website and immediately bought it. Realising its error, the supplier subsequently advised her that the correct price for the item was R3 999 and offered to refund her the R4.

However, the consumer did not want a refund and insisted that the supplier honour the advertised price.

The supplier stated that anyone in the market for an air fryer would know that R4 was an obvious error, given that there was a 99.9% difference between the advertised price and the correct price. In addition, the pricing error was corrected as soon as the error was identified.

The website’s terms and conditions also stipulate that all customers must accept before concluding a transaction, that prices are correct at the time of publication on the website but are subject to change without notice.

It goes on to stipulate that the supplier will take all reasonable efforts to accurately reflect the description, availability, purchase price and delivery charges but should there be any errors on the website, it will not be liable for any loss, damage or expense, except in the case of any incorrect purchase price, when the supplier will refund any amount already paid.

The ombud says while there are sections of the CPA that govern pricing, they do not apply to online transactions. In terms of Section 3 of the Electronic Communications and Transactions Act (ECTA), it must not be interpreted to exclude any statutory law or the common law from being applied to, recognised or accommodating electronic transactions, data messages or any other matter provided for in the Act.

Although ECTA does not provide a remedy for incorrect pricing, common law provides guidance in this area where a binding agreement only comes into existence once the supplier accepts the consumer’s offer to buy something.

A supplier may also take the necessary steps to address the risk of incorrect pricing by stipulating that prices advertised do not constitute a binding offer, reserving the right to refuse or refund payment made by the consumer.

The ombud found that the supplier’s terms and conditions were clear regarding incorrect pricing, while it also took steps to rectify the error and prevent a reoccurrence. Therefore, the ombud found that since the supplier did not accept the complainant’s offer to buy the goods, no binding agreement was in place and the consumer did not have a case.

Lesson learnt: You cannot insist to pay a price that is clearly an error.

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When a supplier wants to cancel a valid and binding contract

A consumer bought a contract under the premise that she was one of a limited number of individuals who were offered a special deal that included two cellphone contracts and a laptop contract, all for R429 per month.

However, one month later, the supplier contacted the consumer to cancel the contract. When the consumer refused, the supplier suspended the account, alleging she had an outstanding balance of R4 330 and demanded monthly payments of R1 500 instead of the agreed R429.

The consumer wanted the supplier to honour the agreement that offered all three contracts for R429 per month.

The supplier said the consultant provided incorrect pricing information regarding the cost for all three items and that the amount of R420 referred only to one product. The sales partner then attempted to resolve the issue with several options, but the consumer declined all of them.

These options included returning the laptop and cancelling the laptop contract while offering to reduce the monthly contract charges and increase the benefits the consumer would receive on the two cellphone contracts.

The supplier maintained that the consumer was trying to snatch a bargain and that the agreement was null and void from the moment it was created. This means that the agreement has no legal effect and is unenforceable.

The supplier indicated that it could not honour the agreement as the consumer would be unjustifiably enriched. In addition, the supplier said the consumer upgraded one of the contracts and was, therefore, aware that there were additional charges applicable for the other products.

After carefully considering the information provided, the ombud concluded that a legally binding agreement was established between the supplier and the consumer. The recording of the call showed clearly that:

• The supplier’s agent had the authority to finalise the agreement and no conditions were disclosed indicating otherwise;
• The consumer asked the consultant if he was sure that the price included all three contracts and he assured her that it did;
• The consumer also indicated that one of the contracts included in the deal was due for an upgrade and the sales agents once again assured her it would not affect the deal and she could still upgrade without incurring penalties;
• There was a clear agreement on the specific upgrade, representing the merchandise/contract;
• There was a meeting of minds. The call clearly demonstrated mutual understanding despite the agent’s error. The agent had the authority to bind the supplier, as there was no prior disclaimer.

The ombud also pointed out that the consumer was further affected by the supplier’s failure to honour the agreement. Her credit bureau profile was affected as she did not pay or agreed to pay the higher amount charged. She also disposed of her personal laptop because she got a new laptop.

Therefore, the ombud recommended that the supplier stick to the agreement concluded. The supplier accepted the recommendation.

Lesson learnt: A supplier cannot hide behind a representative who gives you incorrect information and then try to cancel an agreement.