Devil is in the detail if you want to return defective goods

All goods sold in a transaction carry an implied warranty of quality according to the Consumer Protection Act, meaning you have the right to return defective goods. However, it may not always be that easy.

What can you do when the washing machine you saved for does not spin or the fridge you bought on a Black Friday special does not keep your food cold.

Lee Soobrathi, the Consumer Goods and Services Ombudsman, says the devil is in the detail when it comes to implied warranties as provided for in the Consumer Protection Act (CPA). He says section 56 of the CPA, that deals with the implied warranty of quality provides much needed relief for the end consumer faced with a defective purchase.

ALSO READ: Buying a pre-owned car? Remember these consumer rights

Implied warranty of quality

According to section 56, there is an unspoken condition in every transaction or agreement in addition to any other warranty in terms of the common law or express warranty, that the supplier, importer, distributor and retailer each guarantee that the goods you buy comply with the requirements and standards of section 55 of the CPA, except where the goods were changed contrary to instructions or after leaving the control of the supplier, importer, distributor or retailer.

The implied warranty means that you can return the goods to the supplier within six months, without paying a penalty fee and at the risk of the supplier if you are not satisfied with it in terms of the requirements or standards of section 55.

You can then decide if the supplier must repair or replace the failed, unsafe or defective goods or refund you and if the failure, defect or unsafe feature of the goods is not fixed within three months or happens again, the supplier must replace the goods or refund you.

“Although the application of this relief has been tried and tested over the years, there is no requirement for the consumer to produce a receipt for the particular transaction,” Soobrathi says.

Does this mean that a receipt is not required, or can we assume that a receipt is necessary to create a link between the goods or service and a particular retailer?

If you look at how that would work in practice, considering the practice of many point-of-sales staff asking customers if they would like a receipt, instead of automatically offering one, how accessible would the relief provided for by section 56 be?

ALSO READ: Consumer Protection Act and your rights

Proof of purchase

Soobrathi, says three questions then come to mind. How do you prove that you bought the goods or services in question? What connects your purchase to the retailer? In addition, with most retailers now printing the terms and conditions on the back of a receipt, how would you know what return policies apply to your purchase?

“While a consumer may very well prove the existence of the transaction, it is hard to know the lengths they might have to go to in order to do so. On the other hand, insisting on a receipt with the salient details of the transaction (what was bought, from whom, for how much and when) removes all uncertainty in the unlikely event of a dispute,” he says.

A receipt removes the question of doubt as the retailer will not be able to dispute that the transaction took place and that you bought the goods in question. There would also be a trail of evidence to corroborate your efforts that will not only assist in resolving the issue, but also result in a more meaningful outcome.

Soobrathi, says it will also be more efficient and effective as the receipt is the point of entry that almost all customer service staff are trained to use when processing a complaint.

While the Ombud process is meant to be less adversarial than traditional legal channels, following tried and tested practices of providing proof of purchase places consumers in a stronger position, with less potential for a dispute of fact, promoting efficient and effective dispute resolution, he says.

ALSO READ: Do you purchase goods on lay-by? These are your rights as a consumer

Safe goods of good quality

Soobrathi points out that the consumer’s right to safe goods of good quality, as envisaged in section 55 of the CPA, is another area that is frequently a source of ambiguity.

Section 55 gives consumers the right to receive goods that will do what they are supposed to do within reason, of good quality, in good working order and free of any defects. These goods must be useable and durable for a reasonable period of time, keeping in mind what the goods will normally be used for and the circumstances of supply and must comply with the applicable standards set out in the Standards Act or any other public regulation.

If you specifically told the supplier what the goods will be used for and the supplier is someone who usually supplies these goods and acts in a way that makes you think the supplier knows enough about the goods, you have the right to expect that the goods are suitable for the purpose indicated to the supplier.

To determine if the goods are suitable, all the circumstances must be considered, including:

• how and for what purpose the goods were marketed, packaged and displayed
• if any trademark was used
• if any instructions were available for using the goods
• if any warnings were displayed
• the range of things the goods could reasonably be used for and
• when the goods were made and supplied.

It is irrelevant whether the defect was hidden or obvious or whether you should have detected it before taking delivery.

ALSO READ: Your rights as a consumer when it comes to information about goods and services

You must show goods do not meet standards

Section 55 also points out that you cannot assume that a product failed or had a defect only because better goods are supplied by the same or another supplier, unless the supplier told you that the goods were offered in a specific condition and you expressly agreed to accept it in that condition or acted in a way that suggested you accepted the goods in that condition. This section does not apply to goods bought at an auction.

Soobrathi says it is the responsibility of the consumer to show that the goods do not meet the standards of section 55. “This is often tricky, considering the role of personal preferences and expectations involved in making a purchase.”

He uses the example of an item of clothing, which is a highly personal and subjective purchase. “In an in-person transaction, you have the right to try on the piece of clothing unless you are specifically prevented from doing so for reasons of public health or otherwise.

“Therefore, we encourage consumers to try on the garment to ensure that it meets their personal requirements. If you have specific requirements, ensure that you clearly communicate it to the retailer before making the decision to buy it,” he says.

Finally, you must ensure that you understand the retailer’s return policy so that you are aware of your options. Soobrathi emphasises that the right to return an item based on a change of heart is not enshrined in the law and depends very much on supplier policies.

“The bottom line is that you must pay attention to the details when shopping in person. Take time to consider if the product meets all your requirements and ensure that you are entirely satisfied with it before buying it, as the implied warranty provided for in terms of section 56 of the CPA does not apply to goods or services, unless they satisfy the requirements of section 55.”

It pays to be attentive to the details before parting with your cash, Soobrathi says.