Imagine taking your car in for a mechanical repair under warranty and being told that the warranty is void because there’s a scratch on the bumper, or your vehicle hasn’t been washed lately.
Or that despite the fact that the sole of your new pair of sandals has started pulling away from the upper within a few weeks of purchase, you have no recourse because you punched an extra hole in the ankle strap. That would be ridiculous and totally unfair, right? Right. It’s also illegal. And don’t take my word for it.
This is how Consumer Goods and Services Ombud Magauta Mphahlele puts it: “Suppliers relying on stains, scratches and the like implies that the CPA intended for a warranty to apply only if the goods are not used. This would be ridiculous and defeat the purpose of the CPA.
“If the item has been used according to manufacturer instructions and has not been tampered with, then the warranty stands,” Mphahlele said.
“Normal wear and tear is not altering as per the definition of section 56.”
So, Section 56 – the bit of the CPA you really should read if you don’t have the time or inclination to wade through all of it – says that if you buy something and it becomes defective in some way within six months, you have the right to your choice of a refund, replacement or repair, provided you haven’t caused the problem yourself through an accident or some kind of modification, or using it contrary to the manufacturer’s instructions.
So the supplier can only refuse to honour that six-month warranty if the “breach” is related to the defect. If you removed the two-prong plug your hairdryer came with and replaced it with a more practical three-prong one, and the hairdryer stops working within six months of purchase, the warranty stands unless your dodgy wiring caused the problem. “If the defect is unrelated to the alterations,” Mphahlele says, “the supplier may not escape liability”.
That brings me to the case of Ruqaiyah Wallace, who bought her fiancé a Fossil watch on Christmas Eve at the Fossil store in Canal Walk.
“He wore it on Christmas Day, but it didn’t keep time – he kept having to manually reset it.”
So she returned the watch to the store on January 2 and asked for a refund. “They said the watch is scratched and they don’t take back scratched watches.”
The couple disputed being responsible for the fine scratches and were offered a replacement. “We refused; the watch was defective so we’re entitled to a refund. Their website states that I can get a refund within 90 days for a faulty item.”
Make that six months – the CPA trumps any store’s internal returns policy for the first six months.
I took up the case – and the broader issue – with Fossil, and received a response from Rudy Cowley, the group’s district manager in Cape Town. “I have contacted the customer and we will be giving her a refund.”
When asked if the Canal Walk branch was correct – in terms of company policy – in denying Wallace a refund on the basis that the watch had a few scratches on it, Cowley said on Monday that he’d forwarded my email to his head office for a response. Nothing yet.
Many South Africans have had their legitimate right to return defective products within six months for their choice of a refund or even a replacement denied, based on the fact that the product had cosmetic scratches or dents which had absolutely no bearing on the defect at all.
And I’m quite sure most of them didn’t realise that the store had no right to do that. The injustice makes me fume.
Mphahlele told me her case manager had confirmed that while the Ombud’s office often deals with such cases, there is no consumer advisory on the issue. Drafting one is now on their important “To Do” list.
Another industry which routinely denies warranty claims based on cosmetic wear and tear issues is the bed industry. Again, they can do what they like from month seven of a mattress’s life, but not in the first six months. If a mattress sags or collapses in the first six months, the retailer and supplier may not refuse to take responsibility – refund or replace – if there is a stain on the mattress. But this is a standard clause in a mattress warranty: “(We) reserve the right to refuse services upon inspection if the product is dirty, stained, burnt, infested with insects or in an unsanitary condition.”
Not in the first six months, you don’t. Here’s another one: “The decision whether to replace or repair the mattress is subject to the manufacturer’s discretion.” Again, not in the first six months – that period belongs to the CPA, and the consumer has the right to choose the remedy, not the retailer or the mattress supplier.
If we all wise up to our rights – and name and shame those companies which deny us them – these injustices will end...