Handle With Care

There are clear rules regarding customers causing damage to goods while examining them. Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk explains who is liable.
The Consumer Protection Act 68 of 2008 (CPA) makes provision in Section 18 for the consumer’s right to choose or examine goods. What does this right entail and why is it important to consider it? What are the implications, taking the high-value items sold by the motor vehicle industry into consideration?
Examine all angles
The right to choose and examine goods entitles the consumer to inspect merchandise that a supplier displays for sale. If goods are displayed, the consumer can choose any item from stock before entering into the transaction. So, if a dealer has a vehicle on display in a showroom, a consumer is entitled to examine it in order to determine whether or not they want to buy it. Similarly, if a dealer sells accessories, the consumer can choose one from the stock on display.
But the right goes further than simply studying the goods on display: in terms of this right, a supplier can’t hold a consumer liable for damage caused to goods on display although there are some exceptions to this general rule. A dealer may take the view that they can have a notice or sign to the effect of “you will be liable for damage caused to goods on display”. However, the CPA clearly states that despite such notice, a consumer won’t be liable for the damage.
In practice, this means if a consumer accidentally scratches a new vehicle on display in the showroom, the dealer can’t hold the consumer liable for this damage (which may be a substantial amount). Or if a consumer picks up any accessory on display, and accidently drops it, the dealer can’t charge the consumer if the item breaks or is damaged.
Exceptions to the rule
It is important to understand that this general principle won’t always apply. The consumer will still be liable for the damage caused to goods on display if they act in a manner that amounts to gross negligence, recklessness, malicious behaviour or criminal conduct. In these cases, the supplier can hold the consumer responsible for the damage caused to the goods. The difficulty comes in when it is necessary to determine whether or not the consumer acted in this manner. It should be rather easy to determine whether the consumer acted criminally or with the intention to cause damage (maliciously). For example, if a salesperson unintentionally angers a consumer and the consumer kicks a dent in the vehicle out of anger or frustration, the consumer clearly had the intention to cause damage to the vehicle and, because of this malicious behaviour, the consumer will be liable for the damage.
The more difficult scenarios to determine are whether or not the consumer acted in a grossly negligent or reckless way. This is tricky because different people could interpret it differently. Grossly negligent behaviour refers to something in between an accident (negligence) and causing damages intentionally (malicious intent).
A consumer will be regarded as having acted recklessly if they acted in a manner that is irresponsible to the extent that one can almost see it as intentional. For example, if a parent goes into a showroom with their children and the kids scratch the vehicles on display with their toys and the parent doesn’t stop them, despite being aware of their conduct, this could be seen as reckless behaviour.
Unhappy accident
It’s also important to remember that suppliers may still make the rules on how they expect consumers to behave in their showrooms. The old principle of ”right of admission reserved“ doesn’t fall away in terms of the CPA. But bear in mind that a supplier can’t reserve admission to certain categories of people based on one of the discrimination grounds in the Constitution.
If a supplier needs to interpret this right in order to decide whether or not a consumer is liable for damages, it’s important that the supplier uses its discretion and considers all the surrounding circumstances. The bottom line is that if it was a mere accident, the consumer won’t be liable.

Lies And Videotape

Dishonesty in the workplace can irrevocably break down trust relationships. RMI industrial relations specialist David Van Rooyen looks at cases that have led to dismissal.
Dismissal is not an expression of moral outrage or an act of vengeance. It is, or should be, a sensible response to risk management. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of minor theft; it has everything to do with the operational requirements of the employer’s enterprise.” (Extract edited – Labour Appeal Court: De Beers Consolidated Mines and CCMA.)
Despite a clean record
An employee found some scrap metal in the company’s skip, which he thought might fix his stove at home. Unfortunately, he didn’t get permission to take the scrap off the premises. On his way out, he was searched and the scrap was found in his bag. He was charged with theft, called to a disciplinary inquiry and dismissed. At the CCMA, the arbitrator accepted that he was guilty of stealing the metal, but concluded that dismissal was too harsh, taking into account his 25 years of service and clean disciplinary record. The employee was reinstated with benefits, but without back pay.
In the Labour Appeal Court, the company stated that it had a policy of zero tolerance for dishonesty and his theft had destroyed the trust relationship. The employee admitted the theft, but tried to convince the judge that his conduct was not theft in the strict sense of the word. However, the judge would not water down the accepted meaning of theft. With regard to the 25 years service and clean record, the court confirmed that the damage done to the trust relationship by serious misconduct outweighs long service and a clean record. The court concluded that the arbitrator’s decision to reinstate was not reasonable and that the employee’s dismissal for operational reasons was fair – “he undoubtedly breached the relationship of trust built up over many years of honest service. The company had a consistent policy of zero tolerance for theft and that had been clearly conveyed to all the employees. The commissioner’s award was not justifiable in relation to the reasons given for it. The dismissal was justified for operational reasons and fair”.
Caught red-handed
A female employee was caught on camera, on two separate occasions, concealing a blouse and a belt under her clothing. She was charged with gross misconduct in that she had “concealed merchandise without paying for it, which resulted in a loss to the company”. Despite 23 years’ service, in the opinion of management her conduct had destroyed the trust relationship. She was dismissed but challenged her dismissal at the CCMA. She did not deny hiding the items under her clothing, but said that the blouse was a waste garment with no value and she had put it there to absorb her perspiration because her work area was hot. As for the belt, she “felt like putting it there”.
With regard to the blouse, the arbitrator wasn’t satisfied that Anna had acted with dishonest intent and her conduct was more like unauthorised use of company property. In the case of the belt, the company had not proven that the belt was company property. In the opinion of the arbitrator, the employee was not guilty on the first charge, but guilty on the second charge. She was reinstated with a final warning. In the Labour Appeal Court, the judge viewed the DVD footage and concluded that her conduct indicated concealment with dishonest intention. In the opinion of the court, the arbitrator had acted unreasonably and had no rational basis on which to accept her explanation for her conduct – “it has long been held that the employer’s decision to dismiss an employee will be interfered with only if that decision is found to have been unreasonable and unfair. The fact that an employee has had a long and faithful service is a persuasive factor against dismissal, but is not decisive. There are certain acts of misconduct which are of such a serious nature that no length of service can save an employee from dismissal. The employee committed, on two successive days, acts of gross misconduct involving gross dishonesty, which justified the employer’s conclusion that the trust relationship between it and the employee had broken down irreparably”. (Extract edited – Labour Appeal Court: Woolworths and CCMA.)
Ignorance is no excuse
Rainbow Farms provides free milk, tea, coffee and bread in its canteen and a company rule prohibits taking free milk from the premises without permission. An employee was found with some free milk on leaving the premises and he was charged with unauthorised possession/removal of company property. After an inquiry, he was dismissed. At the CCMA, the arbitrator accepted that there is a company rule, but concluded that the employee was unaware of the rule or that he was doing anything wrong. The Labour Appeal Court did not agree and concluded that it was clear that the employee had breached a well-known rule that had been consistently applied by management. The employee had been dishonest and his conduct had destroyed the trust relationship. The dismissal was substantively and procedurally fair.
1. PAK le Roux, ‘The Labour Appeal Court’s approach to dishonest employees’, Contemporary Labour Law, August 2011, Published by Gavin Brown and Associates.
2. Juta’s Labour Library, Published by Juta and Company.


The CPA sets out the rules that service providers need to follow, explains Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk.
The Consumer Protection Act 68 of 2008 (CPA) defines service to mean “any work or undertaking performed by one person for the direct or indirect benefit of another … irrespective of whether the person promoting, offering or providing the services participates in, supervises or engages directly or indirectly in the service”.For the purposes of the CPA, a service provider is a person who promotes, supplies or offers to supply any service.
In terms of section 54 of the CPA, a consumer has the right to demand and receive quality service. The CPA sets out the rules that the service provider needs to follow when providing a service, for example the repair of a motor vehicle. Firstly, the service centre must perform and complete the work on time, i.e. within the time frame agreed with the consumer. If there is an unavoidable delay that will result in it being completed later than originally anticipated, the service provider must notify the consumer of the delay timeously.
Secondly, the CPA stipulates that a service provider needs to perform the work in a manner and to a quality that a consumer is generally entitled to expect. The CPA goes further to say that if the service provider makes use of goods (for example, new parts being fitted into the vehicle) then the goods must be free of defects and of a quality persons would generally be entitled to expect. The property (meaning the vehicle) must also be returned in at least the same condition as it was when the vehicle was delivered – considering any specific criteria or conditions agreed between the service provider and consumer.
The CPA aims to ensure that when a consumer has an item repaired, or when maintenance is being carried out on a vehicle, it is done with care. The CPA accordingly creates a warranty on the parts used in the repair or maintenance of goods belonging to the consumer. The CPA also goes further and extends the warranty to the actual installation of the part.
So what is the warranty period? In terms of the CPA an automatic minimum three-month warranty period runs concurrently with any other warranty and covers all parts installed by the service provider as well as all labour relating to the installation of the parts. Consumers must note that there are instances when the three-month warranty will not apply. These include fair wear and tear, consumer misuse or abuse of the item repaired, and if the goods have been altered contrary to instructions.
The CPA also stipulates that if a service provider removes any parts or material from any goods when performing a service, they must store the removed parts and materials separately from that of other peoples’ and return the removed parts and materials to the consumer in a reasonably clean container. This does not apply where the consumer has specified that they do not want the parts or materials, or where the parts were replaced as part of an insurance claim or in terms of a warranty claim.
In conclusion, the CPA makes it clear that if the service provider does not adhere to the requirements as dealt with above, then the consumer may request that the defect be remedied in terms of the quality of services, or goods supplied, or both. Alternatively, the consumer may demand that the service provider pays a reasonable portion of the price for the goods and services. It is also important to understand that the usual common law rights of consumers have not fallen away. A consumer can still sue a service provider for any damages suffered as a result of a defective service in terms of South Africa’s law of delict. An example of this may include towing costs where the consumer had a breakdown as a result of a defective service.
Contact Jana van Zyl on 021-671-5423 or email jana.vanzyl@rtk.co.za.

Truth And Lies

The use of polygraphs is a process fraught with difficulty and the tests may well prove inconclusive, explains industrial relations specialist David Van Rooyen.
A polygraph measures and records bodily activities such as heart rate, blood pressure, breathing rate and skin resistance. It is claimed that any conscious effort by a person to give false information during a polygraph test will cause involuntary and uncontrollable responses in these activities. The test itself involves measuring the person’s responses while answering a series of about eight to
12 questions, which would include three that are specific to the reason for the test. The examiner then interprets the test results. However, while the examiner can form an opinion as to whether or not the person has tried to deceive the polygraph, they cannot say conclusively whether the answers are true or false or if the person is lying.
If tests results are going to be used as evidence against an employee, it is important to know how accurate and reliable they are and whether or not they can be used at arbitration.

Accuracy and reliability

According to the American Medical Association, the American Psychological Association and the National Academy of Science, polygraph tests are unreliable and inappropriate for use in the workplace; they are more art than science with little serious research behind them. In this country, the Health Professionals Council of South Africa has reached a similar conclusion. It is claimed that a polygraph measures the responses generated by emotional stress, but stress may be caused by a number of factors of which lying is only one. It is possible that the questions themselves, such as “did you steal the money?” could make the respondent feel like a suspect and become nervous. The fact that they are being interrogated by a stranger in unfamiliar surroundings could make them nervous. The fear of failing the test could produce adrenaline in the body, leading the examiner to infer that the respondent is trying to deceive the machine. There is evidence to indicate that people from different ethnic groups also exhibit different stress reactions that may affect the test results.
There are three significant variables that can affect the accuracy of a test – the expertise of the examiner; the mental and physical condition of the person sitting the test; and the setting in which the test takes place. Independent studies give polygraphs a relatively high rating for reliability and accuracy, but these studies have also shown that only one in three who fail a test might, in fact, be guilty, which means that two out of three people who are found guilty are actually innocent. Even if the accuracy levels are 80 to 90 per cent, there is still a 10 to 20 per cent chance that an innocent person will fail a test and be found guilty. In addition, techniques which can be used to beat the test are available on the Internet.
The examiner is the single most important unknown in assessing the reliability and accuracy of polygraph tests. A large number of South African examiners have been trained in the United States or Israel, with experience in law enforcement but little experience of human psychology. Many examiners belong to the American Polygraph Association and might also belong either to the Polygraph Association of South Africa or to the SA Professional Polygraph Association. Neither of these South African associations is a statutory body and there is no facility in South Africa to assess or accredit examiners.
Be cautious
Because of the potential for error, our courts and arbitrators treat test results with some suspicion. At arbitration hearings, you will probably have to call the examiner as an expert witness so that they can testify and be cross-examined as to their expertise and test procedures and the arbitrator can examine and assess the reliability and accuracy of the test results. In cases of dismissal, the onus rests on the employer to prove that the dismissal was for a fair reason. A failed polygraph test or a refusal to participate in a test is not proof by itself of an employee’s guilt and is unlikely to convince an arbitrator, so corroborating evidence will be required.
Constitutional issues
Apart from concerns about reliability, accuracy and the expertise of the examiner, there are also constitutional issues with polygraph tests, such as the individual’s right to privacy and the right to be protected from self-incrimination. It is possible for a polygraph test to infringe one or more of these rights, but it is standard practice for examiners to brief the person regarding his or her rights prior to conducting a test, in which case there will presumably be no constitutional infringement.
Useful in investigations
Polygraph tests are more helpful and less controversial when used during an investigation and could provide an opportunity for volunteers to clear their names. Tests could reduce the number of suspects and might encourage the guilty person to confess, which is more reliable and useful as evidence than a failed polygraph test.
A failed test is not proof
Refusal to participate in a test might arouse suspicion but does not prove that a person has something to hide. Likewise, a failed test may well create suspicion, but is not proof that an offence was committed or that the employee is lying. Suspicion is one thing – proving guilt is something else.

The Waste Management Bill And You

The proposed Waste Management Bill will act as a legal framework to provide a basis for the regulation of the country’s major waste management problems. The gist of the bill is given here and outlines how, what and where you can tip your trash.
The Bill, which appears in General Notice 1832 of 2007 in Government Gazette 29487, sets out measures on storage collection, transportation, recovery, reuse, recycling, treatment, disposal of waste, a greater producer responsibility and contaminated land.
Priority waste
The Bill states that the Minister of Environmental Affairs or the Member of the Executive Council (MEC) may declare a waste to be priority waste. Once this has been done, the minister may require an industry waste management plan to be produced by the manufacturer of the priority waste.
A prohibition on the generation of the priority waste can be declared and measures for supervision of the priority waste can also be imposed. Measures may also be imposed on the transportation, storage, reuse, recycling, treatment and on the disposal of the priority waste. The Bill states that no person will be allowed to import, manufacture, process or sell a priority waste or a product that will result in the generation of priority waste, unless the product complies with measures prescribed by the minister or the MEC, or if an industrial waste management plan, which has been previously submitted, is approved. It also prohibits the recycling, reuse, recovery, treatment or disposal of priority waste, unless it is in accordance with the measures prescribed by the authorities.
Listing of waste management activities
The minister or the MEC must publish a list of waste management activities that have a detrimental effect on the environment and whether or not a waste management licence is required to conduct the activity, or to ensure that the prescribed standards are adhered to. The listing may exclude certain quantities or categories of waste or categories of persons from the listing if the waste in question is of such a small quantity or temporary nature that it is unlikely to cause pollution to the environment or is harmful to human health, the Bill states.
To acquire a waste management licence the applicant must apply for one from the licensing authority. An application for a waste management licence should be accompanied by a processing fee and any other documentation that might be required by the licensing authority. Once the application has been submitted, the licensing authority will take into account the need for the waste management activity, similar management activities already licensed, pollution likely to be caused, and whether the applicant is a fit and proper person. Any submissions from the organs of State or the public, along with the guidelines issued by the minister, will also be taken into account.
Under the Act, the licensing authority must review a waste management licence at intervals specified on the licence. The authority may by written notice revoke or suspend the licence if it is of the opinion that the licence holder has contravened a provision of the Act. The authority may, however, not revoke or suspend a licence before it has afforded the holder an opportunity to make a submission in respect of the intended revocation and the licensing authority has considered the revocation.
Storage, collection and transportation
The Bill declares that any person who stores waste must, at the very least, take steps to ensure that the containers in which any waste is stored are intact and not corroded, or in any other way rendered unfit for the safe storage of waste. It states that no person may drop, throw, deposit, spill or discard any litter into any public place or any area which has public access, except in a container or a place specifically provided for that purpose.
Waste management plans
The Bill states that the minister or the MEC may require any person, industry or organ of State that produces waste to prepare and submit an industry waste management plan. It states however that such a plan may not be requested if one had already been submitted within the preceding five years.The Bill states that when the minister demands such a report, the impact, or potential impact the waste has on the environment, should be considered. The natural resources consumed in the manufacturing or production process that results in the waste, and the manner in which an industry waste management plan could contribute to the reduction of waste generation, the reduction of negative impacts on human health and the conservation of natural resources. The minister may give direction that an industry waste management plan must be prepared by an independent person for which the ministry will recover the costs.
The content of the waste management plan should include the measures used to prevent pollution or ecological degradation, targets for waste reduction through recovery, reuse and recycling and measures or programmes to reduce the consumption of natural resources and the final disposal of the waste. Waste management measures, phasing out of specified substances, waste reduction through changes in packaging, product design or production process should also be included in the report. The extent of any financial contribution to consumer-based waste reduction, the period required for the implementation of the plan, the identification of laws that may have a bearing on the implementation of the plan, and methods for monitoring and reporting should also be included.
Once the waste management plan has been given over to the ministry, the minister may approve the plan in writing with conditions and give directions for the implementation of the plan. Additional information may also be required and a revised industry waste management plan may be submitted. Amendments to the plan could also be required within a certain time frame or the plan can be rejected if it does not comply with the requirements. In such a case the plan may be amended and resubmitted.
Contaminated land
The Act applies to contaminated land if the contamination occurred before the Act, originated on land other than the identified areas, arises at a different time from the actual activity that caused the contamination, or contamination that arises through an act or activity of a person that results in the change of pre-existing contamination. It can also be identified as land on which specified high-risk activities take place or have taken place.
Once an area has been classified as contaminated land, the owner must organise for a site assessment to be conducted within a specified period of time to determine whether the land is actually contaminated and whether the contamination presents a significant risk. The site assessment report must be submitted to the minister within 30 days of the site assessment being conducted.
The site assessment report, once handed over to the ministry, will dictate whether an investigation area presents significant risk. If the risk is deemed to be significant, the area will be declared a remediation site in which case the ministry must take action to neutralise the harm. The site assessment report can declare that the investigation area does not present a significant risk, or that it does present a risk, but that limited measures are required to address the risks which are present.
If a person or company fails to submit or prepare an industry waste management plan when required to do so, or fails to submit the report in the time and manner as specified, undertakes a waste management activity without a licence where one is required, or fails to comply with the conditions or requirements of that licence, the person or company is liable to a fine not exceeding R10 million, or imprisonment for a period of up to 10 years, or both. Other offences include failing to comply with a remediation order issued by the minister, supplying false or misleading information in any licence application, or failing to comply with a condition subject to which exemption from a provision of the Act was granted.

Waste Classification

The Department of Environmental Affairs (DEA) has developed and piloted a national system for the collection of data on waste generation and management in the country, which will be gazetted by early 2012. Raj Lochan explains the implications and requirements for local businesses.
The South African Waste Information System (SAWIS) is currently being refined through the DEA’s development of a revised waste classification and management system that will be formalised through the National Waste Information Regulations. The main objective of waste data collection is to allow for adequate waste management planning and prioritisation by the DEA, and to enable the department to report on the success of national waste policy and waste management initiatives aimed at moving waste up the hierarchy from land filling to re-use, recycling, recovery or treatment.
SAWIS comprises a central registry and a data capture facility. All waste management facilities as well as hazardous waste generators (generating more than 20 kg/day) are required to register on the system. Reporting to the system would, however, be required from waste management facilities only, i.e. reporting from the point of final management where waste is re-used, recycled, recovered, treated or disposed, which could be the generator in the case of on-site waste management activity. Waste generators’ and transporters’ responsibility in terms of reporting would be to ensure the flow of information to the waste manager through a hazardous waste manifest system, which would be formalised through National Waste Classification and Management Regulations that was gazetted at the end of 2011. The validity of waste data on types of hazardous waste in the manifest will be the responsibility of the waste generator.
Hazardous waste generators that generate more than 20 kg/day will be required to register on the SAWIS. The generators’ specific Standard Industry Code (SIC) would be captured upon registration. Categorising waste generators in terms of the SIC would enable DEA to efficiently report to national statistics (StatsSA), and is in line with industry sustainability reporting parameters.
Part four of the categorisation system will indicate what the final fate of the waste is, i.e. which management option or technique was implemented to deal with the specific waste stream. Three different types of codes have been developed to reflect broad categories of management options for both general and hazardous waste as follows:
R-code: Waste re-use, recycling and recovery options
ê T-code: Waste treatment technologies
ê D-code: Waste disposal techniques.
Implementation, reporting
The categorisation system will be enforced through the National Waste Information Regulations, and the categories (parts one to five) would be included as an annex to the regulations. It will be mandatory for waste managers (disposal, treatment and recycling facilities) to report on these categories to the system. Diversion of waste from landfill will be tracked by calculating recycling and treatment rates, and information will be gathered of the types of waste generated and treated per industry sector.
Currently, reporting to the SAWIS is required only up to level two for waste types (i.e. major waste types) and quantities generated are aggregated per municipal regions. However, once the waste information regulations have been gazetted, reporting will be required to include level three wastes (specific waste types), as well as the quantities from the specific generators of the waste (who would only be required to register on the SAWIS, not report). Waste managers will be required to report to the SAWIS, and will identify which management option/s are implemented at their facilities, i.e. a waste management facility would register individual plants (e.g. landfill and/or treatment plant
and/or incinerator etc.) that are operating at the same site.
Provincial waste information systems would feed data into the national SAWIS. Where provincial systems exist, the generator would only register with the province, and waste managers would report to the province only, i.e. one point of registration and reporting. The province would be responsible for relaying information to the national system.
Get ready for the Waste Act
The Waste Act places certain responsibilities and requirements on generators, transporters (collectors) and processors (recyclers) of hazardous waste.
ê Every holder of a waste that has been classified as hazardous must be in possession of a waste manifest document containing the relevant information specified in the regulations for the waste
ê All generators of waste classified as hazardous must complete a waste manifest document containing information for each consignment of waste transported to a waste manager
ê Waste transporters may not accept waste classified as hazardous for transport unless the waste manifest document accompanies the waste.

The Waste Manifest System

Information to be supplied by the waste generator:
• Unique consignment identification number (bar code)
• SAWIS Registration number in terms of the National Waste Information Regulations, 2010 (if applicable)
• Generator’s contact details (contact person, physical and postal address, phone, fax, email)
• Physical address of the site where the waste was generated (if different);
• Emergency contact number
• Origin/source of the waste
• Classification of the waste
• Physical characteristic / consistency of the waste (liquid, solid, sludge)
• Quantity of waste in tons
• Packaging (bulk, small containers, tank)
• Transport type (tanker, truck, container)
• Special handling instructions
• Date of collection / dispatch
• Intended receiver (waste manager)
• Declaration (content of the consignment is fully and accurately described, classified, packed, marked and labelled, and in all respects in proper condition for transportation in accordance with the applicable laws and regulations).
Information to be supplied by the waste transporter:
• Name of transporter
• Address of transporter
• Vehicle registration number
• Transport permit number
• Declaration acknowledging receipt of the waste.

Information to be supplied by the waste manager:

• Name, address and contact details
• Receiving waste management facility name, address and contact details (where different)
• Waste management facility licence number
• Date of receipt
• Quantity of waste
• Type of waste management applied (re-use, recycling, recovery, treatment, disposal)
• Any discrepancies in information between the different holders of the waste (related to waste quantity, type, classification, physical and chemical properties)
• Waste management reporting description and code in terms of the National Waste Information Regulations 2010
• Details on any waste diverted to another waste management facility and details of the facility
• Certification and declaration of receipt and final management of the waste.

The penalties of non-compliance

Strict penalties are to be put in place for anyone who fails to comply with the provisions of the regulations. These include either imprisonment (not exceeding 15 years) or an appropriate fine, or possibly even both.
“The Rose Foundation and NORA-SA will be conducting extensive training for all our members and collectors to educate them on the hazardous waste manifest and the waste classification system so that they are all fully up to speed with what is required,” explains Rose Foundation CEO Raj Lochan
“We are working closely with government to ensure that the used oil industry stakeholders remain compliant at all stages.”

Taking It Back

Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk explains the reasoning behind what can and cannot be returned.
It seems many consumers are under the mistaken impression that, in terms of the Consumer Protection Act 68 of 2008 (CPA), they have the right to return goods for almost any reason. We recently heard about a case where a consumer wanted to return an item because it was available cheaper from another supplier. The CPA does not provide for such a general right of return. It does, however, set out specific terms that allow a consumer to return purchased goods.
Not all of these are likely to apply to automotive retailers, so let us take a look at a few important return rights that do apply. What is important is that a consumer has the right to return a vehicle if it does not meet the specific purpose for which it was required and as was indicated to the salesperson. If a consumer indicates to the dealer a particular purpose for the vehicle, then it must be able to perform these functions. If it turns out that the vehicle cannot be used for that purpose, the consumer can return it to the dealer within 10 days.
For example: a consumer tells the salesperson that he wants to buy a 4×4 vehicle and there is not a suitable model in stock but the salesperson assures the consumer that a 4×2 fitted with a differential lock will be able to do exactly the same as the 4×4. If it transpires that the vehicle cannot perform the same function, the consumer may return the vehicle in terms of the CPA. Salespeople should take note of these provisions and ensure that, when a consumer indicates any specific purpose, they provide the correct information or correct any misunderstanding on the consumer’s side. Note that this right is not automatic – it kicks in only if the consumer’s expectations were made explicit to the salesperson.
The other potentially onerous provisions for dealers relate to the consumer’s right to return goods found to be defective within six months from the date of purchase or delivery (the latter date of the two). A defect will be present if there is a “material imperfection in the manufacture of the goods” that renders the goods less acceptable than someone could reasonably expect, or a “characteristic in the goods that renders it less useful, practicable or safe” than is reasonably expected in the circumstances. This will be determined case by case, taking all factors into account. The CPA does not prohibit the dealer or manufacturer from running tests to determine the cause of the defect. It cannot be expected that a dealer accepts the return of a vehicle merely on the allegation of a defect by the consumer.
If a consumer is able to return goods for any of the reasons specified in the CPA, the supplier of the goods may in certain instances be entitled to levy a charge for the use of the goods, and to make the goods fit for restocking. So, if a consumer is indeed entitled to return a vehicle, the obligation will be on the dealer to refund to the consumer the purchase price of the vehicle less any entitled charge that it is to make.
Contact Jana van Zyl on 021-671-5423 or email jana.vanzyl@rtk.co.za.

Learn To Be A Motor Dealer Principal

Can one learn how to become a motor dealer principal, the top person in a highly complex and challenging business? Is there a way to train for success in this role?
According to Paddy O’Brien, CEO of Sewells Group, a global dealer management company, the answer to those questions is yes. This was confirmed with the announcement of the opening for enrolment in the next Advanced Dealer Management (ADM) programme.
ADM, says Paddy, sets out to achieve the simple objectives of balancing:
•    the elegance of high level education with street-wise operational experience;
•    vehicle sales with fixed operations;
•    profitability with asset management;
•    customer demands with OEM demands;
•    the art of the game with science; and
•    balancing investment in capital resources with investment in the people resource.
This unique apprenticeship for budding DPs includes the following:
•    One hundred and fifty contact hours of intensive, focused management instruction (seven clusters over 10 months).
•    Leading industry and subject matter expert facilitators.
•    Exposure to a unique line-up of guest speakers.
•    Business visits, case studies and workplace assignments.
•    Insight into international best practices.
•    A holistic development approach including a personal development component to the programme.
Executive coaching sessions are offered to integrate the learning components and enhance goal-achievement.Further information from Tania Barlow (tbarlow@sewellsgroup.com) or Odette Taljaard (otaljaard@sewellsgroup.com)