Shop online - it's safer !
Since the passing of the Electronic Communications and Transactions Act in August last year, consumers in South Africa who purchase over the internet get far more legal protection than they would if they purchased goods over the counter in the real world. While South Africa has quite a lot of consumer protection-related legislation, it is focused on specific areas and does not give the consumer a general "cooling off" period. By comparison, any good or service, other than a limited list of exceptions, that is purchased over the internet (from a South African website) may be returned or refused, without any reason, to the seller within seven days of receipt of the good or service by the consumer.
So if I really do not like the purple leopard print rug that I purchased from badrugs.co.za then I can happily send it back to them and they must, by law, refund me the purchase price, less any shipping costs. In the real world if I purchase the rug over the counter and then wish to return it, the seller is not legally obliged to take the it back, not even on the grounds of good taste. Some sellers have policies that allow the purchaser a refund or perhaps a credit at the store but there is no general legal protection for the purchaser in this regard.
But wait - there is more…
Surprisingly, and in the language of the infomercial - "that's not all the protection that the purchaser on the Internet gets, there is more". Should the seller fail to comply with section 43 (1) and (2) of the Act then the consumer may cancel the transaction within 14 days of receiving the goods and services.
Section 43 (1) outlines a number of requirements that the online seller must comply with. These include:
- All company details, including the physical address, the names of the directors and so forth.
- Sufficient description of the goods or services offered.
- Full price of the goods or services, including any hidden costs such as transport costs, taxes or any other cost.
- All the details of the agreement between the parties.
In essence section 43(1) attempts to make the transaction as transparent to the consumer as possible, so that there are no hidden catches and the seller cannot hide behind the anonymity of the web.
Section 43(2) dictates that the seller must supply the purchaser with an opportunity to review the purchase and either correct any mistakes or if necessary withdraw from the transaction. This allows the purchaser to review the entire transaction and correct it if necessary. So where for example the seller is using a shopping trolley type purchase system, the purchaser can check up on what has been purchased before continuing. This is really meant to be a protection for the consumer against inadvertent purchases, i.e. where a button was pushed in error. Again in the real world with certain exceptions, such as the purchase of immovable property, no such protection exists. The purchaser cannot go back to the shop two weeks later and state that he/she was not given opportunity to review the terms of the purchase and so would like to withdraw from it as could be done in the online world.
And there is even more protection because in terms of section 43 (5) and (6), the seller is obliged under the act to also use a secure payment system, and is liable for any damages that may arise should the seller fail to do so. If one purchases in the real world, and the shop assistant steals your credit card details, you have very limited actions against the shop. On the other hand if you purchase online, and because of poor security, your details get stolen, the seller is liable for your loss.
The purchaser also has a right of performance against the seller. Should the seller not supply the goods or services within 30 days, (or any agreed upon time period which in terms of section 43(2) must be made apparent to the purchaser), then the purchaser has a right to cancel the agreement, with 7 days written notice to the seller.
Again there is no such protection in the real world. I pay a deposit on goods and the seller tells me that he has to order them from the supplier and they should be here "soon". If after a month the goods have not arrived, in the real world I have no way of cancelling the agreement and getting my money back, but must just wait until the goods arrive. Not so online, where I have the right to demand a refund and cancel the deal, if the goods have not arrived after thirty days.
And finally and perhaps most importantly the seller cannot contract out of these protections as outlined above! So the purchaser cannot be faced with a long page of small print "legalese", in which the seller gets around these protections. In section 48 it clearly states that the seller cannot exclude any of these protections by means of contract. Again many of the real word protections, especially the common law ones, can and often are excluded in the sales contract, which is why the consumer is so often faced with pages of small print.
So not only do you face less of a risk of being mugged, hijacked of robbed on your way to the shops, but when you get there, you still have very limited consumer protections. On the online world, on the other hand, you have not only the safety and comfort of purchasing from your own home, but you also have the peace of mind that you have the best consumer protection available under South African law.
It must, however, be noted that there are a number of products that you cannot apply the cooling off period to, mainly things such as fresh food or flowers that would by their very nature be spoiled by the waiting period. The period also does not apply to personalised goods, made to specification, or auctions or similar sales. The principle being that the seven day cooling off period does not apply where it would be detrimental to the goods or the nature of the transaction. Also the protections only apply to purchases made from South African websites, and not from those purchased abroad.
Bearing these factors in mind, it is safe to say that you are in many ways better off purchasing off the web than you are going to your local shop.
06 Aug 2003
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - firstname.lastname@example.org