These are your rights if you’re scammed by a travel agent

Travel agents who fail to deliver the fantastic holiday they promised can be fined or even go to jail.

However, there are also steps you can take before you pay any money to ensure your idyllic holiday happens as planned.

Social media was full of posts recently from people who paid for affordable holidays in the Maldives with Priority Escapes, a travel agency in Johannesburg. However, before they could even start to pack their swimsuits and sunscreen, they received an ominous email from the owner, Francois Swart.

Swart informed them that Priority Escapes cannot fulfil its financial commitments to its customers and service providers. The company has to stop operating and the holidays cannot take place anymore, but there was no mention of a refund or any other form of compensation.

Consumers paid up to R230 000 for their island holidays. Nobody could get hold of Swart and he since cleared out his offices in Fourways, where a notice on the window states that the agency will “temporarily” stop taking bookings and that the office is “temporarily” closed. However, there is a promise too: the owner is busy with business rescue practitioners and is investigating the viability of a turnaround plan.

The notice also gives an email address for people who want to claim their money back.

ALSO READ: Disgraced travel agency Priority Escapes hints at comeback amid fraud allegations

Business rescue muddies the waters

According to Werksmans Attorneys, business rescue is used to facilitate the rehabilitation of a financially distressed company by providing for a business recue practitioner to temporarily supervise the company and the management of its affairs, business and property.

When a company is in business rescue, it is temporarily protected from claims from creditors. The business rescue practitioner develops a business rescue plan to rescue the company by restructuring its business, property, debt, affairs, other liabilities and equity in such a way that it increases the likelihood of the company continuing on a solvent basis or results in a better return for the creditors than would have been the case in a liquidation.

The problem here for the consumers is that business rescue suspends claims from creditors and the consumers are also classed as creditors in this case.

ALSO READ: Clients furious after Priority Escapes travel agency echoes Hello Darlings scam

Here’s what you can do

Trudie Broekmann, a consumer law specialist at Trudie Broekmann Attorneys says she has assisted clients in the past in claiming their money back from dodgy travel agents. She suggests the victims approach the airlines, hotels and other travel service providers directly to find out whether their bookings have been made and paid for by the travel agent. “Then you can request repayment directly from the service provider if the holiday is no longer viable for you.”

This was not the first travel agent that took consumers’ money for holidays that never materialised. Last year, a travel agent form Durban, Tasneem Moosa from Hello Darlings, also closed her agency after allegedly taking about R100 million from clients.

ALSO READ: Consumer Protection Act and your rights

The Consumer Protection Act

Broekman says a travel agent who takes consumers’ money but does not pay for their accommodation, flights and other bookings and uses the money for other purposes is acting fraudulently.

Section 65 of the Consumer Protection Act (CPA) makes it clear that a customer’s payment for their travel expenses to a travel agent remains the property of the customer until it is paid to the hotel, airline, or other service provider. Therefore, misusing a consumer’s money amounts to theft by the travel agent. Section 42 also makes it clear that this amounts to a fraudulent scheme which is illegal.

Section 47 is the most important part of the CPA in this case. This section deals with over-selling and over-booking and provides that suppliers may not accept your booking if they do not intend to deliver the place or if the accommodation is substantially different from the place you think you are booking.

If something unforeseen happens and the place is no longer available, the supplier may find you another location of the same or better quality, class or nature or return your money. You can choose whether you will accept the alternative place to stay.

If, for example, the hotel you were going to stay in gets washed away or burns down, the supplier can find you another place to stay and you can then choose whether to accept it. In this case, there was no alternative and the consumers must be refunded.

ALSO READ: ‘Hello Darlings’ Tasneem Moosa a wannabe Anna Delvey?

If you want to cancel

According to Section 17 of the CPA, consumers have the right to cancel bookings or orders for goods and services and also determines your rights when booking a place on a bus or plane or for accommodation, such as a holiday package.

The agent can therefore require you to pay a deposit in advance and charge you a reasonable amount if you want to cancel.

Section 19 determines your rights in terms of the supply of goods or provision of a service, in this case the holiday. It is a common condition for each transaction that the supplier is responsible for supplying the goods or performing the services at the appointed date and time, at the appointed place. That is why the agent cannot afterwards say that your holiday cannot happen anymore.

In addition, section 29 provides that a service provider is not allowed to make false or misleading representations about the nature, properties, benefits or uses, supply, prices or any other material aspects. If you booked a room with a sea view, for example, this is what you must get and it should not be necessary for you to stand on a chair to see the sea. If the agent offers a holiday and you pay for it, the holiday must happen.

ALSO READ: How to stop misleading marketers from fleecing your cash

No misleading marketing allowed

According to section 41, when it comes to marketing of goods and services, suppliers must not make false, misleading or deceptive representations. They are also not allowed to imply directly or indirectly anything about a material fact or exaggerate or make ambiguous claims.

Information should also not be kept from consumers and if it is clear that you do not understand completely, your misunderstanding must be corrected. The supplier should also be honest about the features, utility, benefits and quality of your place of residence and its standard, quality, grade and style.

This also applies to the amenities and any charges. If you book a five-star room, you cannot be moved to a four-star room without agreeing to it and your payment being adjusted.

Section 48 provides that suppliers may not use unfair, unreasonable and unfair contract terms and may not expect you to give up any of your rights in terms of the CPA. Contract terms are unfair, unreasonable and unfair when they are exceptionally one-sided for the supplier’s benefit or so unfavourable to you that they are unfair.

A deposit of, for example, 50% that you forfeit even if you cancel well in advance or that you have to find someone to take over your holiday package if you can no longer go, are examples of unfair conditions.

Section 49 stipulates the notice period required for certain conditions and specifically states that any notice or condition that minimises the supplier’s risk or liability must be clearly brought to your attention.

Consumers who have complaints about holidays not taking place after they booked and paid can complain to their closest office of consumer affairs. If the complaint Is not resolved, it can go all the way to the National Consumer Tribunal, that can fine a business 10% of its annual turnover or up to 10 years in jail.

Tips

When you book a holiday, keep these tips in mind:

• Make sure all bookings are made in writing. Keep all evidence of payment, confirmation of flights, bus tickets and accommodation.
• Also take notes of everything promised for your holiday.
• Insist on a receipt in writing when you pay your deposit.
• The receipt must also indicate the times for which you booked.
• If in doubt about any promises the provider makes, do some homework to make sure that great view or how close the place is to the beach is true.
• Beware of an agreement that reduces your rights as a consumer.
• If the offer sounds too good to be true, do your homework. Look on the internet and social media to check if there have been complaints about this package before you book.