The ‘cooling-off’ period — how and when it works

2013-11-19 00:00

CONSUMERS are still confused about their rights and responsibilities under the Consumer Protection Act when it comes to the exchange or return for a refund of goods purchased.

A common misunderstanding is that purchases are covered by a “cooling-off” period within which goods that are no longer wanted for any reason may be exchanged or returned for a refund. Some stores do have a generous policy that allows this with certain conditions but this goes way beyond the provisions of the CPA.

Consumer David Erasmus unfortunately discovered this when he recently wanted to exchange a cellphone he had bought from the MTN store in Cascades Mall, Pietermaritzburg.

Erasmus said he had selected a Nokia Lumia 625 cell phone offered on contract in the store catalogue, but staff had advised him that there was no stock or even a sample to view.

However, Erasmus claimed the manager had persuaded him to sign a contract that would enable the store to order the phone. MTN denied that he was pressured to sign the deal.

“I asked the manager how she could expect me to sign a two-year contract without having seen or tested the product,” Erasmus said.

He advised the staff, mistakenly, that under the CPA he was entitled to return the phone within a seven-day “cooling off” period.

Shortly after Erasmus collected the phone he returned to the store to complain that it was “very user unfriendly”.

“Getting through the menu was a cumbersome process. I added my sim card contacts only to find that 40% didn’t record. I then tried to delete the 60% from my phone simultaneously but found no way of doing it,” Erasmus said.

“I tried to view photos my daughter had sent me, no luck! I then attempted to buy a cover but no cellphone outlet in Pietermaritzburg had stock.”

Mistakenly believing the purchase was covered by a cooling-off period with no penalties payable, Erasmus asked to cancel the deal. However, the store refused, because a five-day cooling off period only applies to purchases made via direct marketing where goods are sold to consumers at their homes or work place.

Erasmus said he also believed he was entitled to a refund because section 18 of the CPA allowed him the opportunity to choose a cellphone from the store’s stock that matched the advertised description.

“I’m very unhappy about the state of affairs in the cellphone industry as they do as they please. They don’t keep stock as they are afraid of being robbed, yet a few doors away the jewellery shop displays millions of rands of stock,” he said.

Erasmus said he felt “duped” when he later learned that the catalogue was the last one in which the Nokia model was advertised.

He said he complained to SA Consumer Complaints, which received a response from MTN advising that staff had warned him he could not return the phone if he was not happy with it despite his belief that he was covered by the “cooling-off” period.

Responding to Witness Crusaders, Eddie Moyce, chief customer experience officer at MTN SA, said he had investigated the complaint and found that Erasmus had chosen the cellphone without any sales pressure from the staff. He said MTN would have provided a live device for Erasmus to view provided he had waited for one to become available.

“We are not able to keep samples of live devices for each cellphone model in our shops. We do make sample phones available so that the customer can experience the look and feel of the device,” Moyce said.

Moyce said MTN could not take the phone back as it was not defective.

He added that consumers were often misinformed regarding the CPA.

“A lot of customers believe they have a cooling-off right, and do not understand that this is only applicable to goods sold via direct marketing or sold electronically under the Electronic Communications and Transactions Act. Customers interpret the right to return goods to mean they can return goods at any time for any reasons, such as they no longer want the goods or they don’t like it,” Moyce said.

In fact, the CPA only provides consumers with the right for goods to be returned or exchanged for a refund, repair or a replacement if the goods are unsafe or defective.

Consumer law expert Salina Govindsamy explained further that section 18 of the CPA, which Erasmus had relied on, only applied if the cellphone delivered did not match the characteristics of the sample or that described in the catalogue.

“If the consumer chose the phone based on a description and the phone that is delivered does contain all those descriptions and characteristics then there is no breach and the supplier is not obliged to take the phone back,” Govindsamy said.

However, she added that where goods are sold from open stock, consumers had the right to reject or choose a particular item before finalising the purchase.

“For example, if you go to Woolworths and want to buy a roast chicken then you can choose the chicken you want, not just the one that is selected for you,” Govindsamy said.

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