Friday, 24 October 2014

Yet more rights

For three weeks I’ve been describing the variety of protections that our Consumer Protection Regulations offer us. But there’s even more of them. Some that offer us enormous protection.

One of them deserves repeating.

Section 17 (1) (d) of the Regulations says that it is an “unfair business practice” if a vendor causes “a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction”.

What does that mean?
It means lots of things but above all it means that anyone selling you something has to be VERY careful not to confuse you about your rights. They’re simply not allowed to let you leave the store either not understanding or misunderstanding what you’re allowed to do if you have a problem. For instance they’re not allowed to let you think you can’t return an item if it’s faulty. They’re not allowed to tell you, when something does go wrong, that you have no right to a remedy. We heard from a customer last week who bought a P450 cellphone from a small store called “Xuan Xuan Shop” in the African Mall in Gaborone only for the phone to go wrong within days. She quickly returned it and the owner/manager was good enough to replace it with another one but that replacement also only lasted a couple of days before freezing just like the first one. When she then took it back a second time she was told by the now grumpy and impatient owner that yes, she could have a refund, but only after he’d deducted 20% of the price presumably because he felt he was entitled to do so.

Not so fast. You’ll remember that Section 13 (1) (a) of the Consumer Protection Regulations says very clearly that goods sold must be “of merchantable quality”. Clearly a phone that freezes isn’t. She’s entitled to as many repairs or replacements as are required to give her a phone that does what phones are meant to do. Applying bizarre, made-up conditions such as a 20% penalty for sticking up for your rights isn’t permitted and suggesting that it is would cause a probability of confusion about her rights.

If that wasn’t bad enough the owner then tore up the original receipt the customer had been given, destroying the proof of purchase she might have been able to use if she wanted to take action against the store.

When she’d had enough she contacted us for assistance and one of our team went back to the store with her to see if we could help explain her rights to the now very aggressive owner. No such luck. Clearly Xuan Xuan Shop is a store that likes to confuse its customers about their rights and doesn’t give a damn about their legal obligations.

Related to 17 (1) (d) is Section 17 (1) (g), a shamefully underused right. It’s worth quoting in full. It says that it’s an “unfair business practice” if a company takes “advantage of a consumer's inability reasonably to protect his interests by reason of disability, illiteracy or inability to understand the language of an agreement presented by the other party to the transaction who knows or reasonably should know of the consumer's inability”.

If you read that carefully the implications are really quite profound. A store can’t abuse disabled people and they aren’t allowed to take advantage of someone if it’s obvious that they can’t read an agreement they’re being asked to sign. It doesn’t matter if they’re blind or illiterate, a store can’t take advantage of their situation. However it also says something else. It says that a store can’t take advantage of a customer if they don’t understand the language of an agreement and that, in itself, means two different things. Language can simply mean the type of words you use. An agreement that is full of long words that very few people understand isn’t a fair agreement.

Some while ago I saw a letter from an insurance company that demanded that the victim of an accident in a supermarket “let us have your quantum of damages for consideration”. Apart from being incredibly pompous you have to ask why the company was using bizarre language. I think it was because they wanted to confuse people.

However the word “language” can mean the national or cultural language you choose to use. All business contracts you’ll see in Botswana are written in English because that’s the language of the legal system. So what should a store do when it’s obvious to them that a customer only speaks Setswana? How can they ask the customer to sign such an agreement? It would be like asking me to sign an agreement in Mandarin, it would be a silly idea. (Bizarrely I once DID sign a contract in China and guess what language it was written in? Yes, English.)

I think it’s quite clear that Section 17 (1) (g) of the Regulations places a clear responsibility on companies to make an extra effort in these circumstances. They should be going the extra mile to explain to non-English speakers what the contracts mean. Is it too much to ask that they write explanatory notes in Setswana that they can hand out in such situations?

Or maybe certain organizations actually rely on taking advantage of their customers? Or am I being far too cynical?

The good news is that we have these protections. The Consumer Protection Regulations are a very powerful tool that can be used to protect us. All you need is to know about them. So please, tell your family, your friends and everyone else who needs to know about them.

The Voice - Consumer's Voice

Dear Consumer’s Voice #1

I bought a Huawei C510 phone in Molapo Crossing for P1,795 on the 27th of September. It has a 6 months warranty.

Yesterday the phone just went blank. I informed them through the phone and they said if it is a screen problem they won’t help because it is not covered under warranty. I went yesterday and they took it but they are saying if it is a screen problem they won’t help. They are still checking what the problem is.

Kindly advise me what steps should I take in case they say they can’t help me. I should state that I never dropped the phone nor put it in water.

Thank you.


I think you should go back to the store and explain how they’re breaking several different sections of the Consumer Protection Regulations.

Section 13 (1) (a) of the Consumer Protection regulations is very simple. It requires stores to sell things that are “of merchantable quality”. In other words things should work on the day you buy them and they should keep working for a reasonable time. They’ve certainly broken that one.

When they suggested that if the screen is damaged you don’t have a right to a repair they broke Section 17 (1) (d) by causing “a probability of confusion” about your legal rights.

They broke Section 17 (1) (e) when they disclaimed “the implied warranty of merchantability and fitness for use” and Section 17 (1) (f) by inventing that bit about the screen not being covered by the warranty unless you “specifically consented” to waiving your rights to a warranty for the screen. They can only refuse to repair the screen if you signed an agreement saying you accepted that condition when you bought the phone.

Finally they broke Section 19 of the Regulations which says they’re not allowed to irritate Consumer Watchdog by trying to avoid their legal obligations to serve customers with respect.

(Ok, I admit I made up that last one.)

A consumer rights warning

This wasn’t the only store selling cellphones to abuse a consumer’s rights in the last couple of weeks. A reader contacted us to complain about the Xuan Xuan Shop in the African Mall in Gaborone. She bought a P450 Yestel cellphone (No, I haven’t heard of them either) from them only for it to start freezing within days. She returned it and the owner quickly replaced it but the replacement also only lasted a couple of days before freezing as well. When she took it back a second time the impatient owner told her that yes, she could have a refund, but only 80% of what she paid him. He was planning to deduct 20% because of the bother she’d caused him.

Well, that’s just too bad, isn’t it? Does anyone care that he’s been bothered? It’s his customer who’s had the bother, having bought an item that clearly isn’t “of merchantable quality”

To make matters worse he had already ripped up her receipt in front of her when she got the replacement so she no longer had any proof of purchase to use if she took action against him.

So we paid Xuan Xuan Shop a visit only for the manager to shout at us and insist that their customer wasn’t getting her refund whatever we said. He completely refused to budge and to be reasonable.

The lessons from this are simple. Stand up for your rights even when dealing with someone who is unreasonable and refuses to honor their obligations. Secondly, listen to your family, friends and colleagues when they warn you about where you should buy things. Finally, yes you ARE allowed to judge a store by the way it looks and they way the behave and you are certainly entitled to spread the word when you’ve been abused.

Sunday, 19 October 2014

Even more rights

For the last two weeks I’ve been describing the variety of protections that our Consumer Protection Regulations offer us.

It’s worth repeating one from a couple of weeks ago, the one we use more often than all the others put together.

Section 13 (1) (a) of the Consumer Protection Regulations says that “any supplier who offers a commodity or service to a consumer fails to meet minimum standards and specifications” if “the commodity sold … is not of merchantable quality”. “Merchantable quality” is defined in the Regulations as “fit for the purposes for which commodities of that kind are usually purchased, as it is reasonable to expect in light of the relevant circumstances”.

In other words what you buy must actually DO what you were told it would do or what you could reasonably think it would do. A cellphone must be able to make and receive both phone calls and text messages. A laptop computer must do what laptop computers usually do. An insurance policy must offer the sort of cover that you were told it would offer and that a reasonable person would think it covers. No bizarre exceptions, no unexpected rules.

The big question is what happens next. If a store breaks Section 13 (1) (a) what can you demand they do to resolve the situation?

Our general rule is that when a company sells you something that isn’t “of merchantable quality” you are entitled to one of the three Rs: a replacement, repair or refund. No excuses or delays are permitted, you’re entitled to one of those things. However, what consumers often overlook is that it’s not up to them to decide which one they get. That’s up to the store. For instance, if your cellphone doesn’t work the store who sold it to you is entitled to do their best to repair it before offering you a replacement. That’s only fair, but there are limits. If it repeatedly fails then I think you’re entitled to lose your temper and demand a replacement.

But it’s not just 13 (1) (a), there’s range of other protections, most of which are unfortunately overlooked. Some are very powerful.

One of the most powerful regulations is found in Section 17 (1) (d). This says that it’s an “unfair business practice” if a vendor causes “a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction”.

Think that one through carefully. If anyone selling you something does or says anything that is likely to confuse you about your rights or your obligations then they’ve broken the rules. If they do anything that might confuse you about what you can do if things go wrong then they’ve done it again. So a store salesperson that sells you something on credit who doesn’t make it perfectly clear what happens if you fall behind with your payments is being unfair. A micro-lender who says that the “in duplum” rule doesn’t apply to them is not only lying but breaking the Consumer Protection Regulations as well.

The next section, 17 (1) (e) is closely related. This forbids “disclaiming or limiting the implied warranty of merchantability and fitness for use”. Remember Section 13 (1) (a), that forbids selling something that isn’t “of merchantable quality”? This one says that a store can’t ever say that 13 (1) (a) doesn’t apply to them. So the cellphone store that claims that the phones they sell only have a one-month warranty and won’t be repaired after that time, even though the manufacturer offers a one-year warranty, they’re breaking the rules again. The second-hand car showroom that says that the car you bought an hour ago that broke down just a few meters down the road isn’t playing fair.

However there is an exception to this rule. A store IS permitted to disclaim the implied warranty if the “disclaimer is clearly and conspicuously disclosed”. That’s why you’ll sometimes see a sign in some stores that explains that they offer different conditions, such as the cellphone store that sells “grey imports” and consequently only offers a one-month warranty. But look again at what it says: “clearly and conspicuously”. So a sign in tiny letters that nobody can read isn’t good enough, it has to be so obvious that nobody can miss it.

Section 17 (1) (f) is similar. This one forbids a supplier from “entering into a transaction in which the consumer waives or purports to waive a right, benefit or immunity provided by law, unless the waiver is clearly stated and the consumer has specifically consented to it”. So you can’t waive your rights under the Consumer Protection Regulations, contract law, the Food Control Act or any other set of laws or regulations unless you have specifically said you’ll do so. Which of course you should NEVER do. Never, ever agree to give up your rights. Not unless you want to be abused.

The general lesson here is that anyone who sells you something has to be open about it. They can’t make up rules before, during or after the sale that disadvantage you unless you agreed to be disadvantaged. And that means in writing. It doesn’t say so specifically but that’s what all of these rules require. It must be in writing. How else are they going to prove that you gave up your rights unless they have written evidence to present in a court of law?

However they all rely on one single thing. You, the consumer, the potential victim of abuse need to very carefully read and understand EVERYTHING you sign. If you haven’t read it, don’t sign it.

Friday, 17 October 2014

The Voice - another advance fee scam and Hotelia Travels

Dear Consumer’s Voice #1

I keep receive mails like this one but I have never responded to them, can you trace how genuine they are?


The reader sent an email she had received from “Mr. Joseph Omar ” that was addressed to “Dear Email Owner/Fund Beneficiary” and was entitled “IRREVOCABLE PAYMENT ORDER”.


This email said that Joseph Omar had “been authorized by the newly appointed United Nation secretary general, and the governing body of the UNITED NATIONS Monetary Unit, and Finance Ministry” to make an “irrevocable payment guarantee has been issued by the World Bank Group and the International Monetary Fund (IMF)” for “£2,500,000.00 GBP (TWO MILLION FIVE HUNDRED THOUSAND BRITISH POUNDS)”.

If you’re a regular reader of The Voice I know you’ll be shouting “Scam!” as you read this. This is such an obvious one if you’re familiar with the scam industry. You’ll know as well as I do that this just isn’t true. Bodies like the United Nations don’t go around giving vast quantities of money to total strangers, certainly if they don’t even know their name. It doesn’t matter whether it’s the UN, Microsoft, Yahoo or Google, it’s just not believable.

Of course this is all about the “advance fee” that the scammers will soon demand from the victim. Just before this fictitious money is about to arrive the scammers will demand a fee from the victim. It might be an attorney’s fee, other times a bank charge, sometimes a customs duty, it doesn’t matter what, that’s what they’re after, that relatively small amount of money the victim has to pay to get their hands on the fortune they pretend to offer. The bad news is that if someone does pay it just opens the floodgates to more and more demands which only stop when the victim either runs out money or finally sees the truth.

If you ever receive an email like this you have only one sensible choice. Delete it instantly.

Dear Consumer’s Voice #2

I was a member of Hotel Express and was serviced by one of their consultant called Nomsa. Upon renewal of the Hotel Express membership, I called Nomsa so as she can assist me with the membership and she did came back to confirm that the membership was renewed. A debit of P1,548 was taken from my account followed by another subsequent debit of P584 in July and August 2014 respectively. What amazed me was that the debit reflected the name Hotelia Travel. Having done my investigations and learning that Nomsa had left her employment with Hotel Express to joined a company call Hotelia Travels, I accepted terms as are and requested that she send me my membership of Hotelia Travel.

I called Hotelia Travel and requested Nomsa to send me any proof that I am a member of theirs but got no assistance and also that the receptionist would not let me get hold of any person on managerial level.

Kindly assist.


This isn’t the first time I’ve heard of Hotelia Travels. Even Hotel Express International have warned us about them, telling us the same story you’ve told. There are also numerous complaints about them online.

What was done to you was hugely deceptive. Nomsa lied to you and both she and her employers owe you an explanation, an apology and a refund.

I’ve tried calling and emailing Hotelia Travels myself but I haven’t been any luckier than you in getting a reply. I won’t stop trying.

I still don’t understand why people even think of paying to join holiday discount schemes when you can frequently get discounts entirely for free or get a good deal simply by shopping around. Many chains of hotels offer a variety of discount mechanisms and they don’t require you to do anything other then join their mailing list or visit their web site. One chain even allows you the chance to bid what you want to pay if you stay in their hotels at the weekend. All for free. Why would you need to buy a membership when you can get significant discounts for free?

Saturday, 11 October 2014

More rights

Last week I described some of the rules in the Consumer Protection Regulations, some of the rights we consumers have that help protect us against abuse and mistreatment. If you didn’t get a chance to read it you can find a copy on our blog and Facebook group. But those rights were only the beginning, there’s a lot more.

Some of them seem a bit technical but it’s often the little technicalities that protect us.

Section 13 (1) (b) of the Consumer Protection Regulations says that any “supplier who offers a commodity or service to a consumer fails to meet minimum standards and specifications if” “the commodity or service causes a probability of confusion or misunderstanding as to its source, sponsorship, approval, or certification”.

A later section, 13 (1) (d) forbids a company from claiming that an item “is of a particular standard, quality, or grade” or that it’s “of a particular style or model” if their claims “cannot be substantiated”.

What this means is that someone who sells you something has to be very careful about how they describe it. If they say that it’s a particular model, then that must be true. If they say it’s of a particular quality then that also must be true. If they say the items are from a particular country then that must be true as well.

Most importantly if they say that their item has been approved by a particular company or regulator then they can’t be lying or exaggerating. For instance you’ll occasionally see that a piece of technology has been approved for use with devices from a certain manufacturer. That isn’t always true. In China there were cases of fake iPhone charger cables that exploded, injuring their users. Some years ago here in Botswana a reader showed us the jeans he’d been wearing when the battery in his Nokia cellphone spontaneously caught fire. The problem was that it wasn’t actually a Nokia battery, it was a replacement he’d bought having been assured it was suitable for his phone. He was lucky only to have his jeans catch fire.

A supplier will also be in deep trouble if they claim that an item has been certified by a regulator. We’ve seen cheap electrical irons that appear to have an approval mark but which turns out to be fake. They weren’t approved by anyone at all, they were fakes, extremely dangerous fakes. Luckily electrical irons are covered by one of the Bureau of Standards’ compulsory standards and can be seized and trashed if they’re not safe to use.

Unlike a number of other countries we’d don’t have an authority in Botswana that controls the advertising agency but that doesn’t mean we’re not protected from misleading offers.

Section 15 (1) (d) of the Regulations says that a supplier “shall fail to meet minimum standards of performance if” they advertise something “with intent not to supply reasonably expected public demand”. So a special offer or a discount that is advertised has to be backed up by sufficient quantities of the product to satisfy a normal level of interest. For instance a store can’t advertise fantastic reductions on the price of televisions if there’s only one discounted TV in stock.

The only exception to this rule is “unless the advertisement discloses a limitation of quantity”. So if the store only has a handful of items they want to discount and dispose of they have to be open and honest about that. All it takes is for them to say something like “but we only have 5 left, it’s first-come, first served!” Anything else is abuse.

Section 17 (1) (a) goes a little further, forbidding suppliers from “making false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions”. So if the supplier says there’s 10% off the prices today then that must be factually true. I think it’s also fair to say that it they deliberately increased the prices yesterday so they could reduce them the next day, claiming that the goods were now discounted, they’d be in trouble as well. Price reductions must be exactly what they claim to be, real reductions in price. Anything else is abuse.

The next section is a very good one, it’s just a shame that so few people know about it. It says that it’s “an unfair business practice” if someone claims that “a part, replacement or repair is needed when it is not”. What could be simpler than that? If your car mechanic, cellphone or laptop repairman or your electrician says that something needs to be fixed then he must be telling the truth. There was a series of news stories from the UK a couple years ago in which various consumer bodies and newspapers deliberately caused a very minor fault with a piece of equipment and then asked a variety of supposedly reputable companies to diagnose the fault. A significant number of the companies deliberately exaggerated the nature of the fault to make themselves more money. They were then publicly named and shamed. Deservedly so.

How confident are you that this doesn’t happen in Botswana as well? I’m certainly not. We’ve heard many times from consumers who’ve been asked to pay for expensive repairs that turn out to have been unnecessary, just very profitable for the repairer. The problem is that very few of are qualified to argue with the person we believe is an expert.

The good news is that the Consumer Protection Regulations forbid all of these behaviors, it’s just a shame that so few abusers of consumers are facing the consequences.

I'm really sorry that I'm irritating Raeford "University". Or not.

Clearly I have seriously irritated them. I received a standard email from Google this morning saying that:
"Blogger has been notified, according to the terms of the Digital Millennium Copyright Act (DMCA), that certain content in your blog is alleged to infringe upon the copyrights of others.
...
This means that your post - and any images, links or other content - has not vanished. You may edit the post to remove the offending content and republish, at which point the post in question will be visible to your readers again."
I should stress that I don't have a problem with this warning from Google. People shouldn't breach other people's intellectual property and if you breach MY intellectual property I'll smack you down. I have in the past when "reporters" have taken material from this blog and either used it as their own or have misquoted it.

However this time it's clearly revenge. The post they objected to is this one in which I reported the online conversation I had with someone from "Raeford University" which is yet another fake establishment that sells fake degrees. My "crime" was to post a copy of their logo in the blog post but because I've hurt their feelings I've now removed the image.

So here goes. A heartfelt apology to Raeford "University".

Sorry for hurting your rather sensitive feelings but have you considered the feelings of people who get real degrees the hard way rather than cheating and getting them from you? They're the ones I'm really sorry for.

Friday, 10 October 2014

A statement from Stanbic Bank Botswana

You'll remember that FNB had problems with their Point Of Sales (POS) devices. Many people found that large amounts of money had been withdrawn from their bank accounts, some being left with very little money and some with none at all. A few have found themselves suddenly overdrawn with what seems no good reason. Some customers have then been charged penalties for going over their limits.

It's important to note that (as far as we can tell) nobody has had too much money deducted from their account. Every deduction relates to a real purchase that customers made. However they've only been deducted from customers' accounts weeks after the original purchases were made.

We alerted people on 17th September when we first heard reports about it. On 18th September FNB published a notice regarding the situation and Barclays responded to their customers very soon afterwards.

We assumed that the problem was then sorted out but it turns out that it's still on-going. Stanbic Bank Botswana have today officially told us that their customers are also being affected. They say:
"We would like to confirm that indeed some of our customers are affected by the FNB POS machine technical problems that occurred on August 18- September 16 as per the FNB notice published in the newspapers.

We advise Stanbic Bank customers who have are impacted or suspect that they may be impacted to visit our branches as soon as possible in order to establish if at all their transactions relate to the issue at hand. The issue is a delayed settlement of transactions conducted on FNB POS machines between mid-August and mid-September as stated above, and this can result in overdrawn customer accounts. Depending on the extent of the impact and the client’s ability to repay the amount due, we will then have a conversation on how the client can be assisted through an overdraft and or a term loan.

We apologise for any inconvenience that this may have caused."
The lesson is simple. You need to keep all your receipts when you make purchases using a POS device in a store. Then check your bank account to make sure that the money you've spent has actually been taken from your account. If it hasn't then you need to call your bank and not spend it!

I think we have a right to expect slightly more from our banks. Of course we shouldn't spend money that has already been committed to other purchases but we also have a right to expect our bank to run their systems properly. We have a right to expect that the balance we see in our accounts is the correct one. It's only reasonable.