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Consumer Protection Bill : “Three days are not long enough to return goods”

15 avril 2014, 08:28

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Consumer Protection Bill : “Three days are not long enough to return goods”

From the intention first set out in Government programme 2005, it has taken 9 years for an in-depth review of all the legislations governing consumer protection and rights to take shape into a Bill. (…) This Bill repeals the current Consumer Protection Act and the Fair Trading Act and seems to amalgamate these two acts into the New Bill. It is not clear whether the Consumer Protection (Prices and Supplies control) Act. Act 12 of 1998 - 7 September 1998 is also repealed. Such a revamping of the law to bring a new law, although strategically appropriate, could have its pitfall, if past protective measures are left out…

 

The Bill introduces various new standards and covers new grounds which are very welcome. These are recall of goods, referral selling, protection from pyramid promotional schemes, protection from unsolicited goods and services, duty of care, creation of consumer protection tribunal, consumer associations participation in decision making, creation of consumer welfare fund etc.

 

The new Bill describes the expectations, the behaviour and role of the consumer. It offers supervising officers and designated officers tremendous powers (Section 14). The Bill however does not make provision for abuse of such powers. (…) The Bill in relation to Supervising officers and designated officers as it stands implies that anyone can be appointed in these posts. This can lead to abuse of power, malicious practices, opportunity for corruption and vexatious practices.

 

Consumers need to be made aware of the following:

1. Who is the supervising officer accountable to?

 

2. How are supervising officers to be designated?

 

3. What should be their minimum qualifications and experience?

 

4. What is the minimum qualification and experience of the designated officer?

 

The current Consumer Protection Act (Act 11 of 1991 - 15 June 1991) Section 3 (1) General Safety Requirements states that no person shall supply goods that are faulty. This clear specific rule that no faulty goods shall be sold or supplied has been removed in the new Bill and replaced with many rules that fudge this requirement that NO FAULTY GOODS SHALL BE SUPPLIED.

 

Instead under section 26 of the new Bill it provides for the trader under voluntary notification for recall where a trader if aware of substandard or hazardous goods shall write to the Minister that such goods may not be of acceptable quality. This does not mean that the trader will stop selling such goods until the Minister has issued any order to recall such items. However if the goods concerned is substandard and unknown to the buyer or consumer as the good seems to fulfill its function to the consumer’s expectation and has not been involved in any untoward incident then the trader can continue to sell faulty goods knowingly or unknowingly. What is not clear is how the trader is to know that goods he has in store are substandard? Does the trader carry his own test? What qualification does he need to make such judgment? (…)

 

Section 23 (4) of the new Bill states that no person shall supply goods which do not comply with a safety standard or are not reasonably safe. It fails short to specify that no person shall supply faulty goods. If an item is reasonably safe a statement which is open to definition, fulfills its function but ultimately is faulty then the trader can sell faulty goods which appear fit for purpose. This may lead to bad practice specially in the car sales sector as the case in point of Toyota car sales in America where the manufacturer was knowingly selling faulty cars for over a decade (this case is currently under investigation in the States).

 

The new Bill also introduces the right to return goods within 3 days of receipt of the goods under certain provision i.e that the good has not been used and in the same condition as sold Section 48 (1) and (2). However it seems that 3 days are not long enough and rather mean. If a person buys an item from a trader in Mahébourg open market held on Mondays during an impromptu visit to the village and realises on his return to his northern village that he does not need the good then it is unfair as he will be unable to effectuate a return visit to the open market for 7 days. The new Bill states in this instance that the consumer needs to write to the trader advising of his wish to return the item. How can this be done if the trader works in an open market, has no specific trade address known to the consumer where he/she (the trader) can be contacted? (…) Marks and Spencer in Britain for example allow customers up to a month to return goods provided they have a valid receipt. Consumer will greatly welcome a review in this time delay and that it should be increased substantially.

 

The forth schedule (section 39) defines the minimum warranty period for type of goods. This schedule would invariably encourage traders to offer the minimum warranty period for goods they supply. A washing machine may have a warranty of 5 years from the manufacture and the trader may resort to offering the minimum 2 years recommended. In the event of malfunction of the machine in year 4 then the customer may not benefit from the manufacturer warranty period. To avoid confusion this schedule should specify that where an article already has a warranty in excess of 2 years the trader should clearly advise the consumer likewise.

 

The Bill does not seem to address the issue of street hawkers. This is a good opportunity to clearly define their role and their legal status if any.

 

Clearly there is a need for receipts to be made available for each transaction by whoever is providing a service. This needs to be spelt out clearly in the Bill.

 

The issue of sale by date is not defined within the Bill which again allows traders to sell faulty goods. Supermarkets in the instance offer these items at promotional rate when the item in question is of questionable quality.

 

Section 29 of the Bill on Unfair price would render the unfairness aspects very difficult to prove in the light of the extensive stringent conditions laid out, like brand, supply demand, market price, etc. (…)

 

Section 5- Doubtful intention of Government under section 5(a) and section 5(e) of the National Consumer Council. We do not see the need for the Council to “promote the setting up of associations intended to be involved in the promotion and protection of consumer rights”. The UN Guidelines for Consumer Protection encourage the setting up of independent consumer organisations in countries where these do not exist.

 

In Mauritius, there already exist several such organisations registered with the Registrar of Associations. Why the need for Government to set up an institution to do so? Without bringing the issue to the doorstep of ACIM, we are doubtful of Government’s real intention with section 5(e) in the light of past experience with ACIM’s grant.

 

Section 6: Constitution of the Council.

 

(…) The definition of the Chairperson in the Bill means the Chairperson of the Tribunal. Yet the council also has a Chairperson. Is the chairperson of the Council the same chairperson as the Tribunal’s? If that is so, are we not putting this chair in a position of conflict of interest by chairing both the council and the Tribunal? In case we bring another Chair, should not this chair be an independent person with wide knowledge in Consumer issues?

 

Section 17 “Identification of certain persons.”

 

Whilst this section allows for identification of a person engaged in trading outside trading premises, by an authorized officer, there is no provision for identification by a consumer. AND IT IS MOST IMPORTANT FOR THE CONSUMER TO IDENTIFY THE TRADER. First Schedule: Services under part IV has left out paid TV. There are significant unfair terms in contract of paid satellite TV, whereby no consumer is allowed to rescind a contract any time if he has not done so as mentioned within the contract whereby if the specific time is passed, the contract carries on for till the coming into force of the next specific time. This in fact ties the consumer unfairly.

 

“Marks and Spencer in Britain allow customers up to a month to return goods”

 

Jayen CHELLUM

Association des consommateurs de l’île Maurice