The Consumer Goods and Services Ombudsman (CGSO) says it has received several complaints relating to returns and refunds during the level 4 lockdown.
The ombudsman said that the majority of complaints have centred around clothing, and that some clothing suppliers are not allowing fittings or returns.
“Lockdown-related returns policies must be judged against the very real health concerns regarding the spread of the virus and measures to mitigate this,” said CGSO ombudsman Magauta Mphahlele.
“The CGSO fully understands why suppliers would want to limit the fitting and return of clothing because of the potential of the virus to be spread.
“However, a balance must be struck between the very necessary measures required to minimise the spread of the virus and compliance with the Consumer Protection Act (CPA).”
Mphahlele said that in terms of the CPA, suppliers of goods and services have the right to implement their own returns and refunds policies as long as these do not breach the general right to choose and examine goods provided for in section 18 of the CPA, and the right to return goods provided for in sections 20 and 56 of the CPA.
“At the same time, the pandemic and the resulting lockdown restrictions to curb its spread presents new challenges that are not necessarily fully provided for in current laws,” she said.
“In the absence of clear legal directives, we must find a middle ground that will allow for the management of the spread of the virus and taking care of consumers’ rights.”
Returns and refunds under the lockdown
Mphahlele said that section 20 of the CPA states that if a consumer walks into a clothing store and buys clothing without fitting them, the store is under no legal obligation to accept the return of the clothing as long as the clothing or any other goods are not defective.
“In this instance, the consumer was allowed to exercise the discretion whether to fit or not so the suppliers cannot be held liable if the clothes do not fit or the consumer changes their mind for any other reason,” she said.
“However, where the supplier specifically prohibits fitting then there would be a possible contravention of the CPA as section 18 of the CPA accords the consumer the right to choose and examine goods displayed for sale to ensure that they are fit for purpose.”
Where the consumer was accorded the right to choose and examine goods and the goods are not defective, suppliers can set their own refunds and returns policies, she said,
“Currently for change of mind returns – eg clothes not fitting etc – some suppliers would require that clothing be returned within a specific number of days, with the price tag attached and a receipt. Some will have a no returns and refunds policy.
“These types of policies fall outside the ambit of the CPA and are entirely up to suppliers.”
Mphahlele noted that fitting, returns and refunds are not allowed for some items where public regulation prohibits such.
In terms of section 20(3)(a) of the CPA, the consumer has no right of return if, for reasons of public health, a public regulation prohibits the return of those goods, she said.
“While there are valid public health concerns regarding the spread of the virus, the CGSO is of the view that it may be possible to mitigate this risk by allowing fitting and returns under strict health conditions to accord the consumer the right to ensure that the clothes are fit for purpose and minimise the need for clothes to be returned.
“Without allowing consumers to fit, it is difficult to see how a no-return policy can be justified, even under lockdown.”
When purchasing through online platforms, Mphahlele said that it is important to note that the provisions of the CPA and the Electronic Communications and Transactions Act (ECT).
Section 44 of the ECT, as well as section 18(3) of the CPA, require goods that are bought on the basis of a sample or a description to fit the sample and description when delivered.
If not, the consumer has a right of return and refund, Mphahlele said.
“At the same time, section 44 of the ECT Act allows the right to return goods without reason within 7 days of receipt of the goods. To minimise disputes, it is important that consumers are well informed about any new lockdown return and refund policies.
“The FAQs on websites and other online platforms should be updated to cover these new policies.
“The new policies should also be prominently displayed in-store and on other platforms so that consumers can make informed decisions prior to purchasing.”
Mphahlele said that clear directives on the safe handling of goods to minimise the spread of the virus should be communicated including any measures that the suppliers will implement to disinfect returned clothing.