New case deals with deliveries that are damaged while being transported in South Africa

 ·24 Feb 2019

The Consumer Goods and Services Ombudsman (CGSO) has released a new guideline following a rise in complaints related to goods being damaged by suppliers.

The CGSO recently dealt with a case where the complainant contacted the supplier to move their household goods from Cape Town to Durban at the end of April 2018.

Upon delivery, the complainant discovered that numerous items were irreparably damaged in the move, including an antique dressing table, five ceramic platters and numerous glasses and vases.

The complainant notified the supplier who refused to offer any compensation for the damage on the basis that the complainant did not take out insurance with the supplier.

The complainant was seeking an amount of R7,000 in respect of the damage caused to her property.

The supplier said that it would not entertain the complainant’s claim because she should have taken in-transit insurance with the supplier or had her own household insurance.

They further disputed the amount claimed for damages, R7,000 – as the complainant only paid R4,000 for their services.

What you need to know 

According to the CGSO, in the majority of these cases, the suppliers argue that they have limited their liability in the terms and conditions of the agreement.

In other cases they argue that they are excluded from liability on the basis that the complainant should have insured the goods, the CGSO said.

However, the CGSO noted that section 51 of the Consumer Protection Act (CPA) limits a supplier from deliberately contracting out of these types of claims.

It added that Section 65 of the CPA specifically sets out the manner in which a supplier should deal with a consumer’s property and the consequences should they fail to do so.

It drew specific attention to Section 65(2) which states that:

Section 65(2): When a supplier has possession of any prepayment, deposit, membership fee, or other money, or any other property belonging to or ordinarily under the control of a consumer, the supplier – …

(b) in the handling, safeguarding and utilisation of that property, must exercise the degree of care, diligence and skill that can reasonably be expected of a person responsible for managing any property belonging to another person; and

(c) is liable to the owner of the property for any loss resulting from a failure to comply with paragraph (a).

“A supplier can therefore not contract out of the CPA and can therefore not have terms and conditions which restricts a consumer’s right in terms of the CPA,” the CGSO said.

“It is then only a question of whether the supplier exercised the degree of care, diligence and skill that can reasonably be expected of a person in the circumstances.

“Therefore, the supplier is liable for any loss resulting from a failure to take proper care of a consumer’s property while in their possession, regardless of the supplier’s terms and conditions,” it said.

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