Level 4 lockdown: Clothing returns and refund policies explained after CGSO receives complaints

The Ombud’s office has been advised that some clothing suppliers are not allowing fittings or returns and that consumers only find out about this when they attempt to return goods.

Magauta Mphahlele, the CGSO Ombudsman advised that “lockdown related returns policies must be judged against the very real health concerns regarding the spread of the virus and measures to mitigate this”.

“The CGSO fully understands why suppliers would want to limit the fitting and return of clothing because of the potential of the virus to be spread. However, a balance must be struck between the very necessary measures required to minimise the spread of the virus and compliance with the Consumer Protection Act (CPA)”.

In terms of the CPA, suppliers of goods and services have the right to implement their own returns and refunds policies as long as these do not breach the general right to choose and examine goods provided for in section 18 and the right to return goods provided for in sections 20 and 56 of the CPA.

“At the same time, the pandemic and the resulting lockdown restrictions to curb its spread presents new challenges that are not necessarily fully provided for in current laws. In the absence of clear legal directives, we must find middle ground that will allow for the management of the spread of the virus and taking care of consumers’ rights,” said the Ombudsman.

If a consumer walks into a clothing store and buys clothing without trying these on, the store is under no legal obligation to accept the return of the clothing as long as the clothing or any other goods are not defective.

In this instance the consumer was allowed to exercise the discretion whether to fit or not so the suppliers cannot be held liable if the clothes do not fit or the consumer changes their mind for any other reason.

However, where the supplier specifically prohibits fitting then there would be a possible contravention of the CPA as section 18 of the CPA accords the consumer the right to choose and examine goods displayed for sale to ensure that they are fit for purpose.

Where the consumer was accorded the right to choose and examine goods and the goods are not defective, suppliers can set their own refunds and returns policies.

Currently for change of mind returns, eg clothes not fitting etc, some suppliers would require that clothing be returned within a specific number of days, with the price tag attached and a receipt. Some will have a no returns and refunds policy. These types of policies fall outside the ambit of the CPA and are entirely up to suppliers. Fitting, returns and refunds are not allowed for some items where public regulation prohibits such.

In terms of section 20(3)(a) the consumer has no right of return if for reasons of public health, a public regulation prohibits the return of those goods. While there are valid public health concerns regarding the spread of the virus, the CGSO is of the view that it may be possible to mitigate this risk by allowing fitting and returns under strict health conditions to accord the consumer the right to ensure that the clothes are fit for purpose and minimise the need for clothes to be returned. Without allowing consumers to fit, it is difficult to see how a no return policy can be justified, even under lockdown.

As consumers are also purchasing through online platforms, it is important to note the provisions of section 44 of the ECT Act as well as section 18(3) of the CPA which require goods that are bought on the basis of a sample or a description (from a catalogue or online platform for example), to fit the sample and description when delivered.

If not, the consumer has a right of return and refund. At the same time Section 44 of the ECT Act allows the right to return goods without reason within 7 days of receipt of the goods.

To minimise disputes, it is important that consumers are well informed about any new lockdown return and refund policies. The FAQs on websites and other online platforms should be updated to cover these new policies. The new policies should also be prominently displayed in-store and on other platforms so that consumers can make informed decisions prior to purchasing.

Clear directives on the safe handling of goods to minimise the spread of the virus should be communicated, including any measures that the suppliers will implement to disinfect returned clothing.

For more information contact the CGSO sharecall helpline on 0860 000272.

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