Louis Nel

ADV. LOUIS NEL

This is the 3rd insert of 8 dealing with the NON-REFUNDABLE DEPOSITS – a topic that is regularly entertained by the CPA Commissioner of late  

As we’ve seen from the first two inserts, although the common law is ‘alive & well’, there are additional duties on suppliers e.g. regarding senior citizens, literacy and infrequent travellers.

Section 4 (3) & (4) in addition directs any ‘Tribunal or Court’ to adopt the following approach when assessing documents that govern the relationship between the consumer & the supplier – it is VERY onerous for suppliers & must be borne in mind when not only drafting documents (e.g. T&C) but when engaging in the sales process (i.e. ‘circumstances of the transaction’):

Section 4 (3)

If any provision of this Act, read in its context, can reasonably be construed to have more than one meaning, the Tribunal or court must prefer the meaning that best promotes the spirit and purposes of this Act, and will best improve the realisation and enjoyment of consumer rights generally

Section 4 (4)

the Tribunal or court must interpret any standard form, contract or other document prepared or published by or on behalf of a supplier, or required by this Act to be produced by a supplier, to the benefit of the consumer—

(a) so that any ambiguity that allows for more than one reasonable interpretation of a part of such a document is resolved to the benefit of the consumer; and

(b) so that any restriction, limitation, exclusion or deprivation of a consumer’s legal rights set out in such a document or notice is limited to the extent that a reasonable person would ordinarily contemplate or expect, having regard to—

(i) the content of the document;

(ii) the manner and form in which the document was prepared and presented; and

(iii) the circumstances of the transaction or agreement.

‘WHAT TO DO’ GUIDELINE

 

  • Be extremely cautious when dealing with senior travellers or any persons that have not travelled before and/or have travelled but are not well versed and have challenges such as literacy
  • Review all the documents you use and take special care to ensure that it contains no ambiguities & contradictions and that clauses such as indemnities and limitation of liability or restriction of consumer rights are carefully worded and explained to the traveller
  • Get the traveller to acknowledge the explanatory discussion & issues addressed by signing or at least initialling relevant clauses/travel guidelines