Louis Nel

ADV. LOUIS NEL

SECTION 33  CATALOGUE MARKETING [76]

 

  • Described as a transaction not entered into in person & includes an agreement by telephone postal order or fax, or in any similar manner – one would imagine that the latter can/does include online transactions & brochures relating thereto
  • The supplier must disclose its ‘cancellation, return, exchange and refund policies [Section 33 (3)(f)]
  • Bear in mind that such disclosure must meet all the (other) requirements e.g. plain language, conspicuous etc

 

 

SECTION 41 FALSE, MISLEADING OR DECEPTIVE REPRESENTATIONS [199]

 

  • This section applies to ‘marketing’ but bear in mind it has not been defined as such – however ‘market’ has been defined being the promotion and supply of goods & we’ve seen how widely these phrases are defined!
  • The part of this section that applies to our topic is the duty on the supplier not only to ensure that the wording used is not misleading, ambiguous or deceptive but to clarify ‘any apparent misapprehension’ that the client may have
  • Such a ‘misapprehension’ may be reasonably apparent from the client’s body languageg. frowning if it is a one-on-one sale but very difficult when it is telephonic or on-line. Accordingly the documentation and on-line information must be carefully scrutinized to ensure that such ‘misapprehension’ is avoided and addressed
  • This section [Section 41 (3)] has a so-called deeming provisione. if the following misapprehension is not corrected, it will be deemed/regarded to be a ‘false, misleading or deceptive presentation’ & I believe this includes not very clearly explaining non-refundable deposit and cancellation provisions i.e.

 

(i) the transaction affects, or does not affect, any rights, remedies or obligations of a consumer;

 

‘WHAT TO DO’ GUIDELINE

 

  • Ensure that your cancellation, refund and non-refundable deposit clauses are worded in such a way that the reader who is your ‘average’ citizen and who has not travelled/done business with you at all or much before, can understand
  • Do not ‘hide it’ either in unnecessary verbiage or small print
  • Bear in mind that your consultant may not be present so ensure that an objective reading of your brochure will not give rise to a so called ‘misapprehension’.
  • If your consultant is present, go through the presentation and ALL the wording carefully, be cognizant of the body language and clarify where necessary.
  • A separate documents signed by the customer acknowledging the above may not be a bad idea

 

DISCLAIMER 

 This newsletter/article is intended to provide a brief overview of legal matters pertaining to captioned matter and is not intended as legal advice. As every situation depends on its own facts and circumstances, only professional advice should be relied on. Please contact Adv. Louis Nel at [email protected],za or on +27 83 679 4556’