Consumer Protection Act Article 10: Responsible, Honest and Fair Dealings – Part 6

In our previous article, we discussed marketing in terms of the Act but in regards to specific rights such as trade coupons, loyalty programs and alternative work schemes.

In this article, we shall continue on this aspect but in relation to referral selling, direct marketing and unsolicited goods and services.

Referral selling:

In this instance, a supplier is prohibited from marketing that the consumer will receive a discount, commission or another benefit if the consumer assists the supplier in obtaining a new business with other consumers when the supplier is provided with the details of the new consumers or providing some form of other assistance.

This is a confusing provision of the Act in that it can be prevented by offering the benefit as a commission to consumers for the business brought about by the consumer.

Direct marketing:

What can be described as the protection of the right to privacy is that a consumer has the right not to be approached via direct marketing. The consumer in this instance may refuse any direct marketing or block such contact.

What this means is that the consumer, after direct marketing has taken place, may contact the direct marketer directly and demand that he or she no longer receives any further communication of that nature.

In accordance with the regulations of the Act, marketers may not contact a consumer during certain hours and on certain days. However, the consumer may authorise the marketer to avoid this regulation.

As previously discussed, should a marketer approach a consumer at the consumer’s premises the marketer must display visible identification or be in a position to provide the same at the consumer’s request.

Should a transaction be concluded between the marketer (supplier) and consumer the supplier is obliged to inform the consumer of its rights under the Act to terminate the same within 5 business days.

Any goods left with the consumer without consent or pursuant to an agreement will constitute unsolicited goods, which we will deal with separately.

Unsolicited goods and services:

The Act covers many situations including:

  1. Goods left with, or services provided to, a consumer during direct marketing when no payment arrangements have been made;

  2. Goods or services, materially different from those previously provided or advertised. This must be to an extent not contemplated in an agreement for the period of goods delivered or services provided;

  3. Goods or services provided after the termination of an agreement (this will be affected by the provisions of the Act concerning the termination of fixed-term agreements);

  4. Should a supplier deliver goods or provide services to a location or on a date and time not agreed to by the consumer;

  5. Should the supplier deliver a higher quantity of goods than agreed unless the consumer declines the entire delivery. Therefore, only the excess quantity would amount to unsolicited goods;

  6. Should the supplier deliver goods or provide services not requested by a consumer;

However, should a supplier inform a consumer that goods have been delivered in error within 10 days this would not amount to unsolicited goods. It must be clear that the goods were indeed delivered incorrectly. Should the supplier however not inform the consumer as set out above within 20 days the goods will become unsolicited.

A consumer therefore cannot be forced to pay for the unsolicited goods or services if the consumer complies with the Act.

***Kindly note that the contents of this article are intended for information purposes only and do not constitute legal advice. Consult your attorney.

In our next article, we shall continue to discuss responsible, honest and fair dealings but in relation to specific rights in regards to auctions.