Even more rights

Are you one of the nine out of ten people in Botswana who believe that consumers in Botswana are badly protected?

Is that even true? Is it true that we’re unprotected? I don’t believe so and that’s because I’ve read many of the laws and regulations that have been passed and issued over the years and they make good reading. In fact, we’re very well protected. In principle.

But maybe not in practice. The bad news is that I don’t think the bodies appointed by Parliament to enforce these excellent rules are always as aggressive as we need them to be. Perhaps worse, consumers like you and me haven’t been adequately taught what our rights are. How can we complain about something improper when we don’t know what’s proper?

One of the best set of rules we have is the Consumer Protection Regulations and perhaps the best bit is Section 13 (1) (a) Regulations which 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 pair of shoes that you treat with reasonable care mustn’t fall apart after only a day. A cellphone must be able to make and receive both phone calls and text messages. 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 assert yourself and demand a replacement or a refund

But it’s not just 13 (1) (a), there are several other protections that can help you. 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 a product 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. A 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. 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. 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’s 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”. 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’re happy to 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 must be open and honest about the conditions of the sale. 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 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.