Pretoria - While the Consumer Protection Act (CPA) is there to protect the public, it sometimes also comes to the aid of the supplier.
A woman who paid R538 000 to refurbish her home discovered this when she cancelled her order after the goods were custom made for her.
Alouise Adlam concluded agreements with Portuguese company Fabri, which has outlets in South Africa. She wanted to install various premium kitchen sinks and cupboards, bedroom doors, tops and other fittings.
She chose some of the fittings from a catalogue and in terms of the agreement with Fabri, paid half of the costs involved, amounting to R538 000, as deposit.
Before the work began and two days after the fourth payment was made, she contacted the company and requested that it “hold off” on the project and that no work should be done. This included that no production be done until she advised Fabri otherwise in writing.
The reason for the holding off on the project was because of a dispute that arose between her and the developer of her property.
The company acknowledged the request and confirmed that no work would be done.
About three weeks later, Adlam and her husband met with an employee of the company, to advise him she was unable to continue with the agreements due to reasons out of her hands.
One Francisco, the representative of the company, refused to assist, and he relied on the agreement. He nevertheless undertook to discuss the request with his colleagues and revert back to her.
A few days later, the company informed Adlam in writing that it would refund her half of the amount paid, being R269 000.
The reason for this was that work was done and materials were already ordered.
Adlam rejected the offer of refunding her half of the deposit she had paid, on the grounds that no work had yet been done, nor were materials ordered. She told the company that she had rights in terms of the CPA.
The company responded that the CPA did not apply to the agreements as they consisted of special order goods; and that they had dedicated approximately 64 hours to the project.
Adlam then lodged a claim with the Consumer Goods and Services Ombud.
She maintained that the goods were not special-order goods and were ordered from a catalogue, and the specifications of the standard goods were not altered or requested by her to be altered.
The ombudsman in return told Fabri that: “It may not treat the complainant’s money as belonging to you and not provide her with any goods or services to the value of that money.” It recommended that the company should compensate her.
When Adlam was unable to get her money back, she turned to the Johannesburg High Court, where she lodged a failed application to be compensated. She then appealed the matter before three judges of this division, who also ruled against her this week.
The court noted that the act was a piece of consumer-protection legislation, having its purpose to promote and advance the social and economic welfare of consumers.
It promotes a fair, accessible and sustainable marketplace for consumer products and services and establishes national norms and standards relating to consumer protection.
It also provides for improved standards of consumer information and prohibits certain unfair marketing and business practices.
Adlam’s argument to court was that the purpose, words, and context of the act indicated that the provisions must be interpreted in favour of the consumer.
This means that where a provision limits the rights of a consumer, the provision must be interpreted restrictively.
It was argued on her behalf that the definition of “special-order goods” was extremely broad, and that if a literal interpretation was adopted, the result would go against the spirit and purport of the legislation.
Further, it was also put on record that too literal an interpretation of the definition of “special-order goods” would render the act irrelevant to the ordinary course of trade between customers and suppliers, and this would negate the protection it affords a consumer.
On the other hand, it was argued on behalf of Fabri that the legislation was also there to protect the supplier, in instances where the goods to be supplied were special-order goods.
These goods, the court was told, were where a supplier was required to import, as it does not ordinarily stock such goods.
Judge Moleboheng Mdalana-Mayisela, who wrote the judgment, pointed out that the supplier was a Portuguese-based company with one production unit, three showrooms in Portugal and two showrooms in South Africa.
Its mission is providing residential custom-made solutions, packed with elegance, functionality and innovation.
While it is not specifically stated that the goods Adlam ordered were “special-order goods” the judge said the words “Fabri: Kitchens and Closets, tailor-made in Portugal” appear on their catalogue, and their address is given as being in Lisbon.
This, the judge said, gave an indication that it sold custom-designed and tailor-made kitchens, closets and furniture.
The description of the goods ordered by Adlam and the prices per item gave an indication that the company catered for the high end market.
The company told the court that it had already tailor-made the items in Portugal to Adlams’ specifications and measurements, and that it had spent hours on the designs.
“In our view, considering the ordinary meaning of the words that appear in the agreements, the goods in question are ‘special-order goods’ as defined in Section 1 of the act, in that they are designed and created specifically to satisfy the appellant’s requirements.”
Thus, the judge said, it fell outside the ambit of the legislation which requires the supplier to refund the consumer.
Pretoria News