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South Africa Assessment

Consumer Goods and Services Ombud

Assessment: Defective Goods - Leather Lounge (201701/0011789) [2017] ZACGSO 5 (20 April 2017)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The Ombud found that the lounge suite did not have a manufacturer’s defect based on independent expert assessment. The complainant had the opportunity to inspect the goods prior to delivery, and any dissatisfaction with the specification or colour variation was not attributable to a defect. The CPA provides that consumers lose the right to return goods for a refund after delivery if they have examined the goods beforehand. The supplier’s refusal to refund or replace the suite is justified as no defect was found and the complainant had inspected the goods. Therefore, there is no reasonable prospect of a recommendation in favour of the complainant.

Court disposition

Complaint dismissed; no recommendation in favour of the complainant.

Orders

  • No refund or replacement is ordered.
  • Any further changes to the lounge suite will be at the complainant’s expense.

02

Material facts

Parties

Complainant

Applicant

Supplier

Respondent

Amounts and remedies

  • Purchase Price of Lounge Suite: ZAR 49,999

03

Procedural history

  1. Posture

    Consumer Complaint / Assessment

04

Questions and positions

Legal issues

Party arguments

Applicant
The complainant asserts that the lounge suite began showing defects, specifically fading leather, within three months of delivery. Despite multiple collections and returns by the supplier, the faults persisted. The complainant maintains dissatisfaction and seeks a full refund, arguing that the goods are defective and the supplier is unwilling to assist.
Respondent
The supplier contends that the suite was purchased in November 2015 and replaced twice already. They claim defects must be reported within seven days and that colour changes are natural for the two-tone leather suite. The supplier maintains that the goods are not defective and refuses a refund, citing prior replacements and the nature of the product.

05

Court’s reasoning

  1. 01

    Consumer Protection Act, section 18 and section 20(2)

    Consumers have the right to examine goods before delivery and to select or reject items from displayed stock. If the consumer has examined the goods prior to delivery, the right to return and receive a refund after delivery is lost.

  2. 02

    Consumer Protection Act

    A supplier is not obliged to refund or replace goods if there is no manufacturer’s defect and the consumer has had the opportunity to inspect the goods.

06

Ratio, limits and disposition

Ratio decidendi

The Ombud found that the lounge suite did not have a manufacturer’s defect based on independent expert assessment. The complainant had the opportunity to inspect the goods prior to delivery, and any dissatisfaction with the specification or colour variation was not attributable to a defect. The CPA provides that consumers lose the right to return goods for a refund after delivery if they have examined the goods beforehand. The supplier’s refusal to refund or replace the suite is justified as no defect was found and the complainant had inspected the goods. Therefore, there is no reasonable prospect of a recommendation in favour of the complainant.

Obiter and limits

  • Any changes to the couch specification after delivery are for the complainant’s account, not the supplier’s.
  • The CPA’s protection is limited where the consumer has had the opportunity to inspect goods before purchase.

Court disposition

Complaint dismissed; no recommendation in favour of the complainant.

  • No refund or replacement is ordered.
  • Any further changes to the lounge suite will be at the complainant’s expense.

Source and reliance status

Consumer Goods and Services Ombud

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Judgment reading view

Judgment text

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Source document

Consumer Goods and Services Ombud

Assessment

[2017] ZACGSO 5

Our ref: 201701-0011789

20 April 2017

ASSESSMENT:

YOUR COMPLAINT

The above matter, as well as your Customer Complaint Form has reference.

Summary of your complaint

The complainant purchased a lounge suite from the store on 30 June 2016 for amount R49 999.

In November 2016, the complainant raised a complaint with the store manager regarding the fading leather. The 3-seater was collected and returned yet with faults. Both the 2-seater and 3-seater of the unit was again collected by the supplier on the 23 November 2016.

On or around 2 December 2016 both pieces were returned but again with faults. The complainants concern is that the lounge suite started showing defects within three months of delivery and the supplier is seemingly not willing to assist.

Summary of response

According to the supplier the complainant already purchased the suite in November 2015 and has already replaced it on two occasions.

They also state that they have a 7-day period to report any defect or dissatisfaction.

The supplier further advised that it is natural for the leather to change colour as it stretches and further that this is a two tone colour variation suite.

Assessment

We have considered all the evidence presented by both the complainant and the supplier and advise as follows:

The supplier have advised that they cannot refund the complainant as they have replaced the goods for him on numerous occasions.

The complainant is unhappy with this response and wants a full refund.

Our office received the following pictures:

NB:

PLEASE CONSULT THE PDF VERSION FOR IMAGES

Our office decided to get an independent third party who specialises in damaged furniture to look at the facts and evidence provided for the couches. This was done by Faizal Jogee of FJ Direct.

In terms of his response he has noted that there is not a factory fault or defect with the lounge suite. The customer viewed the product in the store, he cannot expect changes to the specification of the suite he viewed. The arm cushion cannot be in foam if the one on the store floor is filled with fibre.

While we take note that of the complainant’s dissatisfaction, it seems that the goods do not have manufacturer’s defect.

Further to this any changes to the couch will be for the complainant’s account as the CPA gives consumers the right to choose or examine goods and to select or reject any particular item from displayed stock before completing the transaction (section 18). If you have had the opportunity to examine the goods before they are delivered, you lose the right under section 20(2) to return them to the supplier and receive a full refund after they have been delivered to you.

From the evidence, it is clear the couches do not have any defects and we are therefore unable to instruct the supplier to repair or replace the couches.

Based on the facts of this case, the information and evidence furnished to this office and on the principles of reasonableness and fairness, there is no reasonable prospect of this office making a recommendation in the complainant’s favour.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Consumer Protection Act, section 18

Legislation

Legislation referenced in the available case record.

Consumer Protection Act, section 20(2)

Legislation

Legislation referenced in the available case record.

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