Chapter 2 - Part C
Consumer's right to choose Consumer's right to select suppliers
13. (1) A supplier must not require, as a condition of offering to supply or supplying any goods or services, or as a condition of entering into an agreement or transaction, that the consumer must –
(a) purchase any other particular goods or services from that supplier;
(b) enter into an additional agreement or transaction with the same supplier or a designated third party; or
(c) agree to purchase any particular goods or services from a designated third party, unless the supplier –
(i) can show that the convenience to the consumer in having those goods or services bundled outweighs the limitation of the consumer's right to choice;
(ii) can show that the bundling of those goods or services results in economic benefit for consumers; or
(iii) offers bundled goods or services separately and at individual prices.
(2) Except to the extent that any other law provides otherwise, in any transaction between a franchisee and franchisor in terms of their franchise agreement, it is a defence to an allegation that the franchisor, as supplier to the franchisee, has contravened this section if any goods or services that the franchisee was required to purchase from or at the direction of the franchisor are reasonably related to the branded products or services that are the subject of the franchise agreement.
Expiry and renewal of fixed-term agreements Expiry and renewal of fixed-term agreements
14. (1) This section does not apply to transactions between juristic persons regardless of their annual turnover or asset value.
(2) If a consumer agreement is for a fixed term –
(a) that term must not exceed the maximum period, if any, prescribed in terms of subsection (4) with respect to that category of consumer agreement;
(b) despite any provision of the consumer agreement to the contrary –
(i) the consumer may cancel that agreement –
(aa) upon the expiry of its fixed term, without penalty or charge, but subject to subsection (3)(a); or
(bb) at any other time, by giving the supplier 20 business days' notice in writing or other recorded manner and form, subject to subsection (3)(a) and (b); or
(ii) the supplier may cancel the agreement 20 business days after giving written notice to the consumer of a material failure by the consumer to comply with the agreement, unless the consumer has rectified the failure within that time;
(c) of not more than 80, nor less than 40, business days before the expiry date of the fixed term of the consumer agreement, the supplier must notify the consumer in writing or any other recordable form, of the impending expiry date, including a notice of –
(i) any material changes that would apply if the agreement is to be renewed or may otherwise continue beyond the expiry date; and
(ii) the options available to the consumer in terms of paragraph (d); and
(d) on the expiry of the fixed term of the consumer agreement, it will be automatically continued on a month-to-month basis, subject to any material changes of which the supplier has given notice, as contemplated in paragraph
(e) unless the consumer expressly –
(i) directs the supplier to terminate the agreement on the expiry date; or
(ii) agrees to a renewal of the agreement for a further fixed term.
(3) Upon cancellation of a consumer agreement as contemplated in subsection (1)(b) –
(a) the consumer remains liable to the supplier for any amounts owed to the supplier in terms of that agreement up to the date of cancellation; and (b) the supplier –
(i) may impose a reasonable cancellation penalty with respect to any goods supplied, services provided, or discounts granted, to the consumer in contemplation of the agreement enduring for its intended fixed term, if any; and
(ii) must credit the consumer with any amount that remains the property of the consumer as of the date of cancellation, as prescribed in terms of subsection (4).
(4) The Minister may, by notice in the Gazette, prescribe –
(a) the maximum duration for fixed-term consumer agreements, generally, or for specified categories of such agreements;
(b) the manner and form of providing notices to the consumer in terms of subsection (2)(c);
(c) the manner, form and basis for determining the reasonableness of credits and charges contemplated in subsection (3); and (d) other incidental matters as required to provide for the proper administration of this section. Pre-authorisation of repair or maintenance services 15. (1) This section applies only to a transaction or consumer agreement – (a) with a price value above the threshold prescribed in terms of subsection (5); and (b) if, in terms of that transaction or agreement, a service provider supplies a repair or maintenance service to, or supplies or installs any replacement parts or components in, any property belonging to or in the control of the consumer, and – (i) the service provider has, or takes, possession of that property for the purpose contemplated in this paragraph; or (ii) in any other case, the consumer requests an estimate before any services or goods are supplied. (2) A service provider to whom this section applies, must not charge a consumer for the supply of any goods or services contemplated in subsection (1), unless – (a) the supplier or service provider has given the consumer an estimate that satisfies the prescribed requirements, and the consumer has subsequently authorised the work; or (b) the consumer, in writing, or by another recorded manner or form, has – (i) declined the offer of an estimate, and authorised the work; or (ii) pre-authorised any charges up to a specified maximum, and the amount charged does not exceed that maximum. (3) A service provider to whom this section applies must not charge a consumer for preparing an estimate required in terms of subsection (2)(a), including – (a) any cost of performing any diagnostic work, disassembly or re-assembly required in order to prepare an estimate; or (b) any damage to or loss of material or parts in the course of preparing an estimate, unless, before preparing the estimate the service provider has disclosed the price for preparing that estimate, and the consumer has approved it. (4) If a supplier has provided an estimate for any service, or goods and services, the supplier may not charge the consumer a price for that service, or those goods and services, that exceeds the estimate, unless after providing the estimate – (a) the service provider has informed the consumer of the additional estimated charges; and (b) the consumer has authorised the work to continue. (5) The Minister may, by notice in the Gazette, prescribe a monetary threshold for the purpose of subsection (1)(a). Consumer's right to cooling-off period after direct marketing 16. (1) This section does not apply to a transaction if section 44 of the Electronic Communications and Transactions Act applies to that transaction. (2) To the extent that this section applies to a transaction or agreement, it is in addition to and not in substitution for any right to rescind a transaction or agreement that may otherwise exist in law between a supplier and a consumer. (3) A consumer may rescind a transaction resulting from any direct marketing without reason or penalty, by notice to the supplier in writing, or another recorded manner and form, within five business days after the later of the date on which – (a) the transaction or agreement was concluded; or (b) the goods that were the subject of the transaction were delivered to the consumer. (4) A supplier must – (a) return any payment received from the consumer in terms of the transaction within 15 business days after – (i) receiving notice of the rescission, if no goods had been delivered to the consumer in terms of the transaction; or (ii) receiving from the consumer any goods supplied in terms of the transaction; and (b) not attempt to collect any payment in terms of a rescinded transaction, except as permitted in terms of section 20(6). Consumer's right to cancel advance reservation, booking or order 17. (1) This section does not apply to a franchise agreement, or in respect of any special-order goods. (2) Subject to subsections (3) and (4), a consumer has the right to cancel any advance booking, reservation or order for any goods or services to be supplied. (3) A supplier who makes a commitment or accepts a reservation to supply goods or services on a later date may – (a) require payment of a reasonable deposit in advance; and (b) impose a reasonable charge for cancellation of the order or reservation, subject to subsection (5). (4) For the purposes of this section, a charge is unreasonable if it exceeds a fair amount in the circumstances, having regard to – (a) the nature of the goods or services that were reserved or booked; (b) the length of notice of cancellation provided by the consumer; (c) the reasonable potential for the service provider, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice and the time of the cancelled reservation; and (d) the general practice of the relevant industry. (5) A supplier may not impose any cancellation fee in respect of a booking, reservation or order if the consumer is unable to honour the booking, reservation or order because of the death or hospitalisation of the person for whom, or for whose benefit the booking, reservation or order was made. Consumer's right to choose or examine goods 18. (1) Despite any statement or notice to the contrary, a consumer is not responsible for any loss or damage to any goods displayed by a supplier, unless the loss or damage results from action by the consumer amounting to gross negligence or recklessness, malicious behaviour or criminal conduct. (2) If any goods are displayed in or sold from open stock, the consumer has the right to select or reject any particular item from that stock before completing the transaction. (3) If the consumer has agreed to purchase goods solely on the basis of a description or sample, or both, provided by the supplier, the goods delivered to the consumer must in all material respects and characteristics correspond to that which an ordinary alert consumer would have been entitled to expect based on the description or on a reasonable examination of the sample, as the case may be. (4) If a supply of goods is by sample, as well as by description, it is not sufficient that any of the goods correspond with the sample if the goods do not also correspond with the description. Consumer's rights with respect to delivery of goods or supply of service 19. (1) This section does not apply to – (a) the supply of goods or services to a franchisee in terms of a franchise agreement; or (b) a transaction if the performance of that transaction is governed by section 46 of the Electronic Communications and Transactions Act. (2) Unless otherwise expressly provided or anticipated in an agreement, it is an implied condition of every transaction for the supply of goods or services that – (a) the supplier is responsible to deliver the goods or perform the services – (i) on the agreed date and at the agreed time, if any, or otherwise within a reasonable time after concluding the transaction or agreement; (ii) at the agreed place of delivery or performance; and (iii) at the cost of the supplier, in the case of delivery of goods; or (b) the agreed place of delivery of goods or performance of services is the supplier's place of business, if the supplier has one, and if not, the supplier's residence;and (c) goods to be delivered remain at the supplier's risk until the consumer has accepted delivery of them, in accordance with this section. (3) If an agreement does not provide a specific date or time for delivery of any goods or performance of any services, the supplier must not require that the consumer accept delivery or performance of the services at an unreasonable time. (4) The consumer is regarded to have accepted delivery of any goods on the earliest of the following circumstances: (a) When the consumer expressly or implicitly communicates to the supplier that the consumer has accepted delivery of such goods; or (b) when the goods have been delivered to the consumer, and – (i) the consumer does anything in relation to the goods that would be inconsistent with the supplier's ownership of them; or (ii) after the lapse of a reasonable time, the consumer retains the goods without intimating to the supplier that the consumer has rejected delivery of them, subject to subsection (5). (5) When a supplier tenders delivery to a consumer of any goods, the supplier must, on request, allow the consumer a reasonable opportunity to examine those goods for the purpose of ascertaining whether the consumer is satisfied that the goods – (a) are of a type and quality reasonably contemplated in the agreement, and meet the tests set out in section 18(3) and (4); and (b) in the case of a special-order agreement, reasonably conform to the material specifications of the special order. (6) If the supplier tenders the delivery of goods or the performance of any services at a location, on a date or at a time other than as agreed with the consumer, the consumer may either – (a) accept the delivery or performance at that location, date and time; (b) require the delivery or performance at the agreed location, date and time, if that date and time have not yet passed; or (c) cancel the agreement without penalty, treating any delivered goods or performed services as unsolicited goods or services in accordance with section 21. (7) If the supplier delivers to the consumer a larger quantity of goods than the consumer agreed to buy, the consumer may either – (a) reject all of the delivered goods; or (b) accept delivery of the goods, and – (i) pay for the agreed quantity at the agreed rate; and (ii) treat the excess quantity as unsolicited goods in accordance with section 21. (8) If the supplier delivers to the consumer some of the goods the supplier agreed to supply mixed with goods of a different description not contemplated in the agreement, the consumer may – (a) accept delivery of the goods that are in accordance with the agreement and reject the rest; or (b) reject all of the delivered goods. Consumer's right to return goods 20. (1) This section is in addition to and not in substitution for – (a) the right to return unsafe or defective goods, contemplated in section 56; or (b) any other right in law between a supplier and consumer to return goods and receive a refund. (2) Subject to subsections (3) to (6), the consumer may return goods to the supplier, and receive a full refund of any consideration paid for those goods, if the supplier has delivered – (a) goods to the consumer in terms of an agreement arising out of direct marketing, and the consumer has rescinded that agreement during the coolingoff period, in accordance with section 16; (b) goods that the consumer did not have an opportunity to examine before delivery, and the consumer has rejected delivery of those goods for any of the reasons contemplated in section 19(5); (c) a mixture of goods, and the consumer has refused delivery of any of those goods, as contemplated in section 19(8); or (d) goods intended to satisfy a particular purpose communicated to the supplier as contemplated in section 55(3), and within 10 business days after delivery to the consumer, the goods have been found to be unsuitable for that particular purpose. (3) Subsection (2) does not apply with respect to any goods if – (a) for reasons of public health or otherwise, a public regulation prohibits the return of those goods to a supplier once they have been supplied to, or at the direction of, a consumer; or (b) after having been supplied to, or at the direction of, the consumer, the goods have been partially or entirely disassembled, physically altered, permanently installed, affixed, attached, joined or added to, blended or combined with, or embedded within, other goods or property. (4) Goods returnable in terms of – (a) subsection (2)(a) must be returned to the supplier at the consumer's risk and expense; or (b) subsection (2)(b) to (d) must be returned to the supplier at the supplier's risk and expense, within 10 business days after delivery to the consumer. (5) Upon return of any goods in terms of this section, the supplier must refund to the consumer the price paid for the goods, less any amount that may be charged in terms of subsection (6). (6) In determining the right of a supplier to impose a charge contemplated in subsection (5), if any goods returned to the supplier in terms of this section are – (a) in the original unopened packaging, the supplier may not charge the consumer any amount in respect of the goods; (b) in their original condition and repackaged in their original packaging, the supplier may charge the consumer a reasonable amount for – (i) use of the goods during the time they were in the consumer's possession, unless they are goods that are ordinarily consumed or depleted by use, and no such consumption or depletion has occurred; or (ii) any consumption or depletion of the goods, unless that consumption or depletion is limited to a reasonable amount necessary to determine whether the goods were acceptable to the consumer; or (c) in any other case, the supplier may charge the consumer a reasonable amount – (i) as contemplated in paragraph (b); and (ii) for necessary restoration costs to render the goods fit for re-stocking, unless, having regard to the nature of the goods, and the manner in which they were packaged, it was necessary for the consumer to destroy the packaging in order to determine whether the goods – (aa) conformed to the description or sample provided, in the case of goods that had not been examined by the consumer before delivery, as contemplated in subsection (2)(b); or (bb) were fit for the intended purpose, in a case contemplated in subsection (2)(d). Unsolicited goods or services 21. (1) For the purpose of this Act, goods or services are unsolicited in any of the following circumstances, subject to subsection (2): (a) If, during any direct marketing of goods or services, a supplier or person acting on behalf of a supplier has left any goods with, or performed any service for, a consumer without requiring or arranging payment for them, those goods or services, as the case may be, are unsolicited; (b) if a consumer is a party to an agreement contemplating the periodic delivery of goods during the life of the agreement, and – (i) during the course of that agreement, the supplier introduces goods or services that are materially different from the goods or services previously supplied to an extent not reasonably contemplated in the agreement, the new goods or services are unsolicited, unless the consumer expressly consented to the material change; or (ii) after the termination of that agreement, the supplier delivers any further goods to the consumer, other than in terms of a different agreement or transaction, those further goods are unsolicited goods; (c) if a supplier delivers goods or performs services at a location, date or time other than as agreed, and the consumer has rejected that delivery or performance of services, as contemplated in section 19(6), those goods or services are unsolicited; (d) if a supplier delivers a larger quantity of goods than the consumer agreed to buy, the excess goods are unsolicited unless the consumer has rejected the entire delivery, as contemplated in section 19(7)(a); or (e) if any goods have been delivered to, or any services performed for, a consumer by or on behalf of a supplier without the consumer having expressly or implicitly requested that delivery or performance, the goods or services, as the case may be, are unsolicited goods. (2) Despite subsection (1), if – (a) within 10 business days after delivery of any goods to a consumer, the supplier informs the consumer that the goods were delivered in error, those goods become unsolicited only if the supplier fails to recover them within 20 business days after so informing the consumer; or (b) any goods are delivered to a consumer and – (i) those goods are clearly addressed to another person, and have obviously been misdelivered; or (ii) having regard to the circumstances of the delivery, if would be apparent to the ordinary alert consumer that the goods were intended to be delivered to another person, the goods become unsolicited goods only if the recipient informs the apparent supplier or the deliverer that the goodswere misdelivered, and the goods are not recovered within the following 20 business days. (3) If a person is in possession of goods contemplated in this section, the person – (a) must not frustrate or impede any reasonable action by the supplier or deliverer to recover the goods within the time allowed in subsection (2); (b) is not responsible for any cost pertaining to the recovery of the goods or further delivery of them to another person; and (c) is not liable for any loss or damage to the goods during the time they are in the person's possession or control, other than loss caused by the person's intentional interference with the goods, if any. (4) A person who fails to comply with subsection (3)(a) is liable to the supplier or deliverer, as the case may be, for any additional costs for recovery of, or damage to, the goods arising as a result of anything done to frustrate or impede the lawful recovery of those goods. (5) If a person is in possession of any unsolicited goods, the person may – (a) retain the goods; or (b) return the goods to the apparent supplier or deliverer at the risk and expense of the supplier or deliverer, as the case may be. (6) If a person lawfully retains any unsolicited goods – (a) the property in those goods passes unconditionally to the person, subject only to any right or valid claim that an uninvolved third party may have with respect to those goods; and (b) the person who supplied or delivered those goods is liable to any other person in respect of any right or valid claim relating to such goods. (7) A person has no obligation to pay a supplier for unsolicited goods or services, or a deliverer for the cost of delivery of any unsolicited goods. (8) A supplier must not demand or assert any right to, or attempt to collect, any payment from a consumer in respect of any charge relating to unsolicited goods left in the consumer, except as contemplated in subsection (4). (9) If a consumer has made any payment to a supplier or deliverer in respect of any charge relating to unsolicited goods or services, or the delivery of any such goods, the consumer is entitled to recover that amount, with interest from the date on which it was paid to the supplier, in accordance with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975).