When small print becomes very big problem

How often have you put your signature to a document without reading the terms and conditions in the tiny print?

For most people the answer would be often, if not always, mostly because they don’t have the time or the inclination to wade through laborious legalese and they trust that it’s “just the usual standard stuff”. And many industries – car rental, for one, can be thankful for that, because I daresay if all consumers sought out their terms and conditions, a good proportion of them would decide the risk of setting off in a rented car was more than their finances could cope with.

The problem is contracts are legally binding and could have devastating financial consequences for you. Except if the terms are what the Consumer Protection Act (CPA) deems to be “not fair and reasonable” – and it’s very long list, ranging from excluding – or limiting – the supplier for death or personal injury caused to the consumer through an act or omission of the company to “allowing the supplier to terminate the agreement at will, where the same right is not granted to the consumer”.

Those and many other unfair and unreasonable terms are still common in contracts – six years after the CPA came into force – and the Act’s provision that contracts be written in plain and understandable language is largely ignored, too.

Mainly because companies can – there’s little to no consequence, and as any teacher will tell you, a lack of consequences enables anti-social behaviour.

Which is why I love the High Court judgment handed down by Judge Dhaya Pillay earlier this month.

When Durban businessman Ivin Rattan’s Land Rover Discovery went in for repairs at Land Rover Umhlanga in November 2012, a courtesy Discovery was delivered to him at his Phoenix butchery, and he signed a document presented to him, having barely read it.

What he was later said to be agreeing to, with his hastily applied signature, was that the luxury SUV would be insured for the first 72- hours and thereafter he’d be held personally responsible for it, and should arrange his own insurance.

Two days later Rattan was killed in a hail of bullets while driving that on-loan Discovery, and a company called Four Wheel Drive Accessory Distribution subsequently claimed the sum of about R560 000 from his estate as the cost of repairing it.

In attempting to establish why Land Rover South Africa, which appeared to own the loan vehicle, was not party to the court action, the judge was told of an extraordinarily complex lease and release agreement, involving several companies, which Rattan would not have been aware of.

But the upshot was that not even the man who delivered the Discovery to Rattan could explain the terms of the contract when he gave evidence in court.

Nor could he explain why there was reference to “overleaf” when Rattan was asked to sign a single page.

And then he told the court something most of us can relate to: “If I were to go through the whole document with each and every client and every single clause in there, I would not be getting any vehicles out.

“I am under a strict process – between five and 10 vehicles a day. “I can’t sit for three hours and explain the whole document to a client.”

Under cross-examination he conceded that the document was “very complex, in small writing, very difficult to read”.

Judge Pillay said she could not read the document easily “even with the aid of a magnifying glass” and went on to dismiss the claim, with costs.

“Moral agreements are binding,” she said, “immoral agreements are not”.

“Agreements are immoral if they are against public policy, unfair, in bad faith or incapable of eliciting genuine consensus.”

The case brought to mind the “New car for R699pm” car deals of a few years ago, , which saw thousands of South Africans signing contracts which were horrendously prejudicial to them – often in fading light, on the bonnets of their just-delivered, gleaming new cars.

The Satinsky group acted as a motor dealership, offering cars financed by major banks, the monthly repayment offset by a fee for advertising the deal on their cars.

When Satinsky pulled out suddenly they were left paying in full for the cars, based on agreements with standard equipment added on as extras, in many cases, along with hefty admin fees and high interest rates.

Many who weren’t able to cope financially lost their cars, and others had their terms extended from five to eight years in order to get the monthly repayment down to a figure they could afford.

Wendy Wileman, for example, signed the deal for a R89 000 Tata Indica, in December 2012 and has made payment every month since then, but currently still owes an amount of R148 000 on the car and will be paying it off until 2020.

That was an extreme case, but every day consumers are presented with contracts that are designed in word and format to hinder their understanding of what they are committing to, financially, and the risks they are exposing themselves to.

Every company that says wonderful things about its regard for its customers in their core values and mission statements should sit down with their contracts and run them, line by line, past a copy of the Consumer Protection Act (Section 44 of the regulations for starters).


E-mail: consumer@knowler.co.za

Twitter: @wendyknowler