If you don’t get given a copy of the contract, don’t make the deal

2014-01-21 00:00

MANY consumers have done it at some time or another — signed a contract without securing a copy to peruse the small print — be it the “Ts and Cs” of an online offer or during a meeting with a trusted service provider.

But, as a case presently before the National Consumer Commission illustrates, not insisting on getting a copy to read at leisure can be a costly move, resulting in a prolonged battle with the service provider.

Pietermaritzburg consumer Sharmla Rajballi said she signed a contract in July 2012, assisted by laser therapist Reshmi Takoorpersadh at a laser-therapy outlet in Raisethorpe.

Rajballi said she had been drawn to a newspaper advert for the “Laser Slimming” therapy, which promised to help with weight loss with “no side effects”.

Rajballi said she paid R15 000 for herself and her son to undergo laser therapy sessions at a cost of R7 500 each.

She said they had both signed contracts but were not given copies. She claimed her son had also not been given a chance to read the terms and conditions.

“After the first treatment ... I ended up with blisters and burn scars. I went back for the second one because she told me it would clear up and that it’s common to have burns,” Rajballi said.

However, when after three treatments, one performed by Takoorpersadh and two by an assistant, Rajballi, a diabetic, showed the blisters to a doctor and he advised her to stop.

Rajballi approached Takoorpersadh for a full refund. Takoorpersadh however declined.

“She said I must sell the contract to someone else. But how can I sell it if I have side effects?”

Rajballi claimed she asked Takoorpersadh for the contract and arrived to collect it on three occasions, without success.

“I was foolish to take it — R15 000 is a lot of money,” Rajballi said.

Rajballi then filed a complaint with the National Consumer Commission, where her case is pending, and contacted Witness Crusaders.

When I approached Takoorpersadh for comment, she claimed Rajballi had complained and “cried wolf” when she realised that laser therapy is not a weight-loss “magic wand”.

Takoorpersadh said “laser lesions” are common, but “easily resolved by using ultrasound gel”.

She denied that the advert claimed there were no side effects.

However, Rajbablli sent The Witness a copy of the advert, which claimed “no down-time, no side effects”.

Asked why she did not provide Rajballi with the contracts, she said she had “zero intention” of “squabbling” over the case.

“She came in once and was told that the clinic was undergoing renovation and she should call back. She understood this and left. Thereafter, she contacted the Consumer Council [sic],” Takoorpersadh said.

“She entered into a non-refundable contract. She did this willingly over multiple consults,” Takoorpersadh said.

But it seems there is no simple solution to this matter.

Salina Govinsamy, a Consumer Protection Act legal specialist with Gavin Gow Inc, said the matter is “very complicated”.

Speaking generally about consumer contracts, Govindsamy outlined a consumer’s rights in such cases.

“There are two separate issues. The first issue is if the quality of the service was not adequate.

“The other issue is if the service was adequate, then the matter can come down to section 49 and 58 (which deal with terms and conditions of contracts and warnings concerning risks),” Govindsamy said.

Govindsamy said section 54 of the CPA requires service providers to perform a quality service.

“If the service provider fails to perform services to the standards contemplated in section 54(1), the consumer may require the supplier to either, remedy any defect in the quality of the services performed or goods supplied, or refund to the consumer a reasonable portion of the price paid,” Govindsamy said.

Govindsamy said businesses have to advise consumers of certain terms and conditions, and warn of any risks “of which a consumer could not reasonably be expected to be aware, or which an ordinarily alert consumer could not reason­ably be expected to contemplate”.

She said that in cases where consumers allege that terms in an agreement do not meet the requirements of the CPA, a court could declare an agreement or portion of an agreement void.

On the issue of the “non-refundable” contract, Govindsamy said the CPA states that an agreement is presumed to be unfair if it has the purpose or effect of allowing the supplier to retain payment for services that have not been performed.

“The only way to see this is to have a look at the contract and see if the contract is fair to both parties or excessively in favour of the service provider,” Govindsamy said.

Govindsamy said consumers are entitled to a copy of the contracts and in cases where businesses do not provide one, consumers should ask for a signed document stating that a copy was withheld from them.

Moral of the story:

“Do not enter into a contract that is non-refundable. Ask to speak to previous consumers.

“Ask about the side effects and ensure that the conversation is recorded,” Govindsamy said.

The National Consumer Commission had not responded to questions at the time of going to print but I will keep you posted on the outcome of the case.

• Send your consumer complaints to Lyse Comins at consumer@3i.co.za

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