Cooling-off period – returning goods after direct marketing

After certain purchases, all a consumer needs is a “Get out of Jail Free” card, like the one that features in Monopoly. Section 16 of the Consumer Protection Act (CPA) is pretty close- it enables a consumer to return a product, without having to give a reason, within 5 business days of when you receive the goods or when the transaction is completed, and then the supplier must pay back the purchase price. This only applies where there has been direct marketing by the seller.

Direct marketing is when the seller contacted you by either telephone, email, text message or other electronic communication or posted or handed you a pamphlet adverting the product.

If there wasn’t direct marketing involved, your right to return the goods will depend on whether the goods were defective, whether you could inspect them before purchase and the retailer’s terms and return policy.  Contact us if you need more detail.

How do you use this cooling-off right? You have to notify the supplier that you are cancelling the transaction- this must be either in writing (email or sms or WhatsApp is fine) or in another recorded form, e.g. a phone conversation which is recorded. Use clear wording, e.g. “I cancel my contract with you with immediate effect in terms of the cooling-off right in section 16 of the Consumer Protection Act. You must return my payment of R1000 within the next 15 business days. My bank details are: …” And you need to return any goods that you have received from the supplier at your own expense.

The supplier than has 15 business days to return your money once you have delivered the goods back to supplier, or if no goods have been delivered to you, once you have given the supplier notice that you are cancelling the agreement. If the supplier doesn’t pay on time, speak to your attorney to take legal steps to obtain payment. You should also report the supplier to the National Consumer Commission which can lead to the supplier being fined up to the higher of 10% of their national turnover or R1 million.

Keep in mind that this remedy is only available to consumers for the first five business days, so make sure you send an email or text message as soon as you realize that you don’t want the product. You do not have to give a reason. The seller cannot refuse to accept the cancellation or the return of the goods, as the cooling-off right overrides their contract or policies.

The cooling-off right in the CPA does not apply to certain goods and services bought online (when section 44 of the Electronic Communications and Transactions Act (ECTA) applies). Products such as clothing, electronic devices and household appliances purchased and paid for entirely online are regulated by ECTA, so you will need to use the similar cooling-off right in that Act and you need to cancel within 7 days of purchase.

 The CPA applies to foods, beverages, goods personalised according to the consumer’s specifications, newspapers, magazines, books, gaming and lottery services, as well as hospitality industry services that are bought online. Any products purchased by juristic persons (companies, close corporations etc.) will be able to use the CPA’s cooling-off right.

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