Watch strap broke on last day of warrantee period: Supplier not liable to replace or refund (201311136) [2014] ZACGSO 12 (22 January 2014)
- Citation
- [2014] ZACGSO 12
- Status
- Ruling
- Jurisdiction
- South Africa
- Court
- Consumer Goods and Services Ombud
- Panel
- Bonita Hughes
- Case number
- 201311136
More details
- Court
- Consumer Goods and Services Ombud
- Panel
- Bonita Hughes
- Case number
- 201311136
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Ombud found that there was a factual dispute between the complainant and the supplier regarding the cause of the watch strap breaking. No further evidence was presented to substantiate either version. The watch broke on the last day of the six-month return period, but its satisfactory use for six months indicated reasonable quality. As the defect was not proved on a balance of probabilities, the Ombud could not make a finding in favour of the complainant under Section 56 of the Consumer Protection Act and declined to instruct the supplier to refund or replace the watch.
Court disposition
Complaint dismissed due to lack of evidence proving a defect on a balance of probabilities.
Orders
- The supplier is not required to refund or replace the watch.
- The complainant may pursue repairs at their own cost as offered by the supplier.
02
Material facts
Parties
Complainant
ApplicantSupplier
Respondent03
Procedural history
Posture
Consumer Complaint / Final Determination
04
Questions and positions
Legal issues
- 01
Whether the supplier is liable to refund or replace the watch under the Consumer Protection Act when the strap broke on the last day of the warranty period.
- 02
Whether the defect was proved on a balance of probabilities.
Party arguments
- Applicant
- The complainant argued that the watch strap broke without any fault on their part and requested a refund or replacement from the supplier, asserting that the product was defective within the warranty period.
- Respondent
- The supplier contended that the strap broke because it got caught onto something, which is not covered by the warranty. They maintained that the watch was not defective and refused a refund under the Consumer Protection Act.
05
Court’s reasoning
Legal principles
- 01
CGSO Terms of Reference
Where there is a dispute of fact and no supporting evidence for either version, the matter must be dismissed if a decision cannot be reached on a balance of probabilities.
- 02
Consumer Protection Act, Section 56
Section 56 of the Consumer Protection Act allows a person to return goods and request a refund, repair, or replacement if the goods are defective within six months.
06
Ratio, limits and disposition
Ratio decidendi
The Ombud found that there was a factual dispute between the complainant and the supplier regarding the cause of the watch strap breaking. No further evidence was presented to substantiate either version. The watch broke on the last day of the six-month return period, but its satisfactory use for six months indicated reasonable quality. As the defect was not proved on a balance of probabilities, the Ombud could not make a finding in favour of the complainant under Section 56 of the Consumer Protection Act and declined to instruct the supplier to refund or replace the watch.
Obiter and limits
- The complainant may consider the supplier's offer to send the watch for repairs at their own cost.
- The absence of supporting evidence for either party's version precludes a recommendation in favour of the complainant.
Court disposition
Complaint dismissed due to lack of evidence proving a defect on a balance of probabilities.
- The supplier is not required to refund or replace the watch.
- The complainant may pursue repairs at their own cost as offered by the supplier.
Source and reliance status
Consumer Goods and Services Ombud
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Consumer Goods and Services Ombud
Ruling
Defect not proved
Watch strap broke on last day of warrantee period: Supplier not liable to replace or refund.
Complaint ref : 201311136
Adjudicator : Bonita
Hughes
Date : 22
January 2014
1. Summary of complaint
On 21 February 2012 you purchased a watch from the supplier. The strap of the watch broke on 20 August 2012. On 21 August 2012 you contacted the company and requested a new watch. After not receiving any feedback you requested a refund.
Up to date you have not yet received a refund for the watch.
You want the store to refund you for the watch.
2. Summary of the supplier’s response
The supplier advised that they contacted you after receiving your complaint and you explained to them that the strap got caught onto something and broke, after which the watch fell.
They confirmed that this is not covered by the warranty.
They also advised that the watch was not defective and cannot give you a refund in terms of the Consumer Protection Act.
3. Assessment
We have considered all the evidence presented by both you and the supplier and advise as follows:
According to the supplier’s response the watch broke as it got caught onto something which broke the strap which caused the watch to fall. According to your response the watch merely fell from your arm and did not get caught onto anything.
In light of the above, it appears that there is a dispute of fact between your version of events and that of the supplier.
On the one hand you claim that the watch broke due to no fault of yours. On the other hand the supplier claims that the watch broke as it got caught onto something and fell.
In trying to reach a decision in cases where there is clearly a dispute of fact we need to look at all the evidence in support of each version and weigh this up against each other to establish which is correct, alternatively which is more probable.
If we cannot reach a decision on the evidence or on a balance of probabilities, we must dismiss the matter in accordance with our
terms of reference.
“Decline to deal with or discontinue dealing with those matters:
In which there does not appear to be a reasonable prospect of the matter settling or of the CGSO eventually making a recommendation in favour of the complainant for whatever reason;”
Applying the above approach to your complaint, it must be noted that apart from both your and the suppliers allegations there is no further evidence to substantiate either one of the versions.
We however noticed that the watch broke on the very last day of the 6 months return period provided for in the Consumer Protection Act. The fact that you were able to use the watch for 6 months without a problem does however strengthen the inference that the quality of the pin was at least reasonably good.
4. Conclusion
We are thus unable to make a finding in terms of Section 56 of the Consumer Protection Act which allows a person to return goods and request a refund, repair or replacement and cannot instruct the supplier to refund you for the watch.
Based on the above we can only suggest that you consider the offer by the supplier to send the watch for repairs at your cost.
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