Dispute: Loss / Theft of consumer's goods (201610-0010101) [2016] ZACGSO 16 (5 December 2016)

Dispute: Loss / Theft of consumer's goods (201610-0010101) [2016] ZACGSO 16 (5 December 2016)

The supplier, having accepted the consumer's property for repair, was under a statutory and common law duty to exercise reasonable care and diligence in safeguarding the item. The supplier failed to locate the ring and did not provide evidence of having taken adequate measures to protect it. The attempt to exclude liability through standard terms is invalid under section 51 of the Consumer Protection Act, which prohibits clauses that waive consumer rights or avoid supplier obligations. Section 65 of the Act further imposes liability on the supplier for loss resulting from failure to exercise reasonable care. The supplier's defense that the complainant should have insured the item is...

Citation
[2016] ZACGSO 16
Parties
Applicant: Complainant; Respondent: M Watchmaker & Manufacturing Jewellers
Court
Consumer Goods and Services Ombud
Jurisdiction
South Africa
Judgment Date
5 December 2016
Case Number
201610-0010101
Procedural Posture
Consumer Complaint / Assessment
Outcome
The supplier is liable for the loss of the complainant's ring and must compensate the complainant for its value or provide a replacement.
Judges
M F Mbedzi
Legal Topics
Consumer Protection Act, Depositum Liability, Standard Terms Exclusion, Supplier Duty of Care
Commercial and Corporate Consumer Protection Act Depositum Liability Standard Terms Exclusion Supplier Duty of Care

Case Brief

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Parties

Complainant

Applicant

M Watchmaker & Manufacturing Jewellers

Respondent

Procedural Posture

Consumer Complaint / Assessment

Legal Issues

  1. 1 Whether the supplier is liable for the loss or theft of the consumer's goods while in its possession.
  2. 2 Whether the supplier can exclude liability for loss or theft through standard terms and conditions.
  3. 3 Whether the supplier exercised the required degree of care and diligence in safeguarding the consumer's property.

Ratio Decidendi

The supplier, having accepted the consumer's property for repair, was under a statutory and common law duty to exercise reasonable care and diligence in safeguarding the item. The supplier failed to locate the ring and did not provide evidence of having taken adequate measures to protect it. The attempt to exclude liability through standard terms is invalid under section 51 of the Consumer Protection Act, which prohibits clauses that waive consumer rights or avoid supplier obligations. Section 65 of the Act further imposes liability on the supplier for loss resulting from failure to exercise reasonable care. The supplier's defense that the complainant should have insured the item is...

Court Disposition

The supplier is liable for the loss of the complainant's ring and must compensate the complainant for its value or provide a replacement.

Orders

  • The supplier must replace the lost ring or compensate the complainant for its value.