The Consumer Protection Act – Section 21 – Unsolicited Goods

Section 21(1)(e) of the Consumer Protection Act (“The Act”) provides that goods or services are unsolicited if:

“any goods have been delivered to, or any services performed for, a consumer by or on behalf of a supplier without the consumer having expressly or implicitly requested that delivery or performance”

This would imply that whenever a person receives goods in the post for testing purposes or on a trial basis, such goods and services are unsolicited. A common occurrence however is that such a test or trial is usually soon followed by a bill for an amount for using the goods or services. It is also a common occurrence that once having received the bill, consumers are shocked, however usually pay the amount when threatened with any consequence to avoid problems.

This is a grave injustice to the common layman and as such the Act has made provision for the protection of such consumer’s when having received unsolicited goods, and later having received any kind of invoice for the amount. Such protection is found in Sections 21(7) and 21(8) of the Act which state that:

“(7) A person has no obligation to pay a supplier for unsolicited goods or services, or a deliverer for the cost of delivery of any unsolicited goods.

(8) A supplier must not demand or assert any right to, or attempt to collect, any payment from the consumer in respect of any charge relating to unsolicited goods left in the possession of a consumer, or the delivery of any such goods, or unsolicited services supplied to or for the benefit of, the consumer, except as contemplated in subsection (4).”

Section 21(4) provides that Section 21(8) would not be applicable where a person has frustrated any reasonable action by the supplier or deliverer to recover the goods within 20 (twenty) business days. In such a situation a consumer would be liable for any additional costs incurred by the supplier or deliverer, for the recovery of, or damage to, the goods arising as a result of anything done to frustrate or impede the lawful recovery of the goods.

Thus it is clear that when a person has received any unsolicited goods or services, they are not obligated to pay any amount in relation to those goods or services unless they in any prevent or hinder the supplier from recovering the unsolicited goods or services, and in the event that any payment has been made in relation to such unsolicited goods or services, a person is further protected by Section 21(9).

Section 21(9) provides that:

“If a consumer has made any payment to a supplier or deliverer in respect of any charge relating to unsolicited goods or services, or the delivery of any such goods, the consumer is entitled to recover that amount, with interest from the date on which it was paid to the supplier, in accordance with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975).”

Thus if a person has paid any amount for unsolicited goods, even without being pressured to do so, such amounts would be recoverable with interest from the date on which they were paid.

The above mentioned protections are not unlimited however, and have restrictions placed on them by Section 21(2).

If a supplier informs the consumer that the goods were delivered in error within 10 (ten) business days after delivery of any goods, such goods would only become unsolicited if the supplier has failed to recover them within 20 (twenty) business days after informing the consumer. This follows that any goods that are clearly addressed to someone else but have been delivered to the wrong person would only become unsolicited 20 (twenty) business days after the consumer notifying the supplier that the goods were delivered erroneously, and the supplier having failed to recover them.

These protections and restrictions on such protections are not retrospective and only apply from 31 March 2011, being the date on which the Consumer Protection Act was implemented.

Majority of the public are unaware of these provisions of the Consumer Protection Act, and although the Act itself is fairly new and recent, it is important that all consumers know that they are protected from suppliers who seek to take advantage of them.

Nuno Palmeira

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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