Our previous articles, What Zimbabwean Businesses Need to Know about Consumer Rights (Part I), and Part II: Exploring The Consumer Protection Act [Chapter 14:37] have established that the Consumer Protection act [Chapter 14:37] (CPA) came in as a custodian of consumer rights and as an equaliser of sorts between consumer and supplier of goods and services.
We have established that the CPA came in to enforce and regulate common law practices relating to consumer protection. The Act also provides consumers with the right to information so that they can make informed and careful decisions when engaging service providers.
RIGHT TO INFORMATION (PART D: Section 26 – 32)
Suppliers must provide any necessary information including environmental impacts that a product has. Such information can be displayed on the package of the product and must be written in plain, simple and understandable language. With regard to products of harmful nature, the supplier must give proper instructions on how to use and handle that product as well as how to dispose of it.
Right to disclosure of information regarding goods or services and disclosure of prices (section 26).
Product information provided by businesses should always be complete and truthful. Section 26 makes it mandatory for every supplier of any goods or services to disclose information regarding goods or services as well as disclosure of prices in relation to those goods or services. “Price” is the amount a consumer pays to the supplier in exchange for goods and services, this includes a unit price. When displaying goods on offer or for sale, suppliers must display to the consumer a price in relation to those goods or services. In terms of section 26(3) of the Act, goods that are predominantly used for advertisement and those goods or services, in an area within the supplier’s premises to which the public does not ordinarily have access to cannot be priced. A price is said to be adequately displayed to a consumer if, a written indication of the price is expressed in the currency being used by the country and is annexed or affixed to, written, printed, stamped or located upon, or otherwise applied to the goods or to any band, ticket, covering, label, package, reel, shelf or any other thing used in connection with the goods or on which the goods or services are mounted for display or exposed for sale. Prices can also be displayed through publication in a catalogue, brochure, circular or similar form of publication available to the consumer, or to the public in general. Time and date should be specified in these publications as the time and date after which the goods or services may not be sold at that price, and also indicate if that time and date has not yet passed.
A supplier cannot require a consumer to pay a price for any goods or services which is higher than the price advertised or displayed, provided that the advertised or displayed price includes all taxes or levies chargeable upon the goods or services. In terms of section 26(5) where more than one price is advertised or displayed concurrently, the lowest will be considered as the price of the goods or services unless the price is determined by the law or a price that was once advertised or displayed has been fully covered or the price as advertised or displayed contained an error which supplier already corrected. In the instance that an unauthorised person has altered, defaced, covered, removed, or obscured the price advertised or displayed, suppliers cannot be bound by such price. Any person who contravenes section 26 shall be guilty of an offence and for each count, liable to a fine not exceeding level 5 which is currently on ZWL 30 000 or to imprisonment for a period not exceeding three months or to both such fine and imprisonment.
Disclosure by intermediaries (Section 27)
An intermediary is defined in section 2 of the Act as a person who, in the ordinary course of business and for remuneration or gain, engages in the business of (i) representing another person with respect to the actual or potential supply of any goods or services, (ii) accepting possession of any goods or services or (iii) offering to sell to a consumer, soliciting offers for or selling to a consumer any goods or services that belong to or are supplied by a third person.
In terms of section 27(1) of the Act, an intermediary must disclose information to any person whom he or she solicits or agrees to represent with respect to the sale of any goods or services and should keep the records of all relationships and transactions they enter into with such person. Nevertheless, section 27(1) does not apply to an intermediary who is an executor or other administrator of a deceased’s estate, in respect of any property of that estate or a liquidator of an insolvent estate, in respect of any property of that estate or a trustee in respect of any trust property. The Minister of Industry and Commerce or any other Minister that the President may from time-to-time assign may prescribe the information, including the manner and form of delivery of any such information, that an intermediary, or different categories of intermediaries, must provide. The Minister may also prescribe any records, including the form and content of any such records, that an intermediary, or different categories of intermediaries, must keep.
Disclosure of reconditioned or grey market goods (Section 28)
A person who offers or agrees to supply, or supplies, any goods or services that have been reconditioned, rebuilt, or remade must display and notify consumers that those goods or services have been reconditioned, rebuilt, or remade. If one supplies goods that bear a trademark of the original producer or supplier, yet they are not original, must clearly state it to the consumers that the goods are not original. A person who markets any goods or services that bear a trademark but have been imported without the approval or licence of the registered owner of that trademark, shall display a clear notice to those goods or services in that manner. The importance of this provision is for consumers to purchase a product with the knowledge that it might not meet their expected quality or standard.
Identification of deliverers, installers, and others (Section 29)
A person engaged in direct marketing or service provision must visibly wear or display a badge or similar identification device that satisfies any prescribed law and consumers have a right to ask for such identification which must be provided on such request. The purpose of the identification badge policy and procedure is to promote security, safety, and consumer confidence in the service.
Right to noticeable and legible information in plain and understandable language (Section 30).
This is one of the most important provisions that secure a consumer’s right to information. A consumer surely has to have the correct understanding of a transaction he/she is getting into. This Section mandates service providers to label all goods and services and mark them in plain and understandable language. The Commission may publish guidelines in the national media for methods of assessing whether a notice, document or visual representation satisfies the requirements of this section. The guidelines may be published for public comments.
Product labelling and trade descriptions (Section 31).
Trade description is defined by the Act as any description, statement, indication, or suggestion, direct or indirect with reference to (i) the nature, number, quantity, quality, purity, class, grade, measure, gauge, size, or weight of the goods or services or (ii) the country or place in or at which the goods or services were made or produced or (iii) the manufacturer or producer of the goods or services or the person by whom they were selected, packed, or in any way prepared for the market or (iv) the mode of manufacturing, producing, selecting, packing, or preparing the goods or services or (v) the material or ingredients of which the goods or services are composed, or from which they are derived or (vi) the goods or services being the subject of an existing patent, privilege, or copyright.
In a bid to protect consumers, suppliers are not allowed to apply to any goods or services a trade description that is likely to mislead the consumer. Suppliers cannot also alter, deface, cover, remove or obscure a trade description or trademark applied to any goods or services in a manner intended to mislead consumers. The act also mandates retailers not to display, offer to supply or supply any particular goods or services with the knowledge that a trade description applied to the goods or services is likely to mislead the consumer or a trademark applied to the goods or services has been altered. The Minister may prescribe categories of goods that are required to have a trade description. A producer or importer of such prescribed goods or services must apply a trade description to the goods and services, disclosing the country of origin of the goods or services and any other so prescribed information. It is notable that the Minister may prescribe rules of origin in accordance with any international (trade) agreement for purposes of determining the country of origin. Any person who produces, supplies, imports, or packages such prescribed goods or services has to display, on or in association with the packaging of the goods or services, a notice that discloses the presence of any genetically modified ingredients or components of the goods or services in accordance with any law. This is vague, since the Act does not actually define genetically modified ingredients at all. The Act makes it an offence for a producer or importer to fail to apply a trade description to goods or services and shall be liable to a fine not exceeding level 12(ZWL 800 000) or to imprisonment not exceeding one year or to both such fine and such imprisonment.
Sales records (Section 32).
A supplier of goods or services is obliged by the Act to provide a written record of each transaction to a consumer to whom goods or services are supplied in every transaction. The information on such a record should include
(i) the supplier’s full name, or registered business name, and VAT registration number, if any and (ii) the address of the premises at which, or from which, the goods or services were supplied and (iii) the date on which the transaction occurred and (iv) the name or description of any goods or services supplied or to be supplied and (v) the unit price of any particular goods or services supplied or to be supplied and (vi) the quantity of any particular goods or services supplied or to be supplier and (vii) the total price of the transaction, before any applicable taxes and (viii) the amount of any applicable taxes and (ix) the total price of the transaction, including any applicable taxes. The Minister may, by notice in the Gazette, exempt categories of goods or services, or circumstances of trade from sales records.
RIGHT TO BE HEARD, REPRESENTATIONS AND REDRESS (PART E: Section 33- 34).
Right to be heard, access to justice and redress (Section 33).
This Section introduces and endorses one’s constitutional right to redress. This right asserts the ability of the consumers to voice complains and concerns about a particular product in order to have the issue handled efficiently and responsively.
Such complaints can be handled by the Commission or the Court of law or through alternative dispute resolution mechanism. In seeking redress, section 33 (2) affords consumers the right to representation by a person of their choice. Raised complains and disputes must be heard and resolved within a reasonable time. In the instance that a consumer has exercised, asserted or sought to uphold any rights set out in the Act or in an agreement or transaction with a supplier, the supplier must not, in response discriminate against the consumer directly or indirectly. Consumers cannot be penalised by suppliers for asserting and exercising their rights. A supplier is not allowed by the act to alter or propose to alter, the terms or conditions of a transaction or agreement with the consumer, to the detriment of the consumer or take any action to accelerate, enforce, suspend or terminate an agreement with the consumer in a bid to stop the consumer from seeking redress.
If an agreement between consumer and supplier or any provision of such agreement is declared void, a supplier cannot penalise the consumer in response or alter the terms or conditions of the agreement except to the extent necessary to correct a similarly unlawful provision. Supplier cannot also take any action to accelerate, enforce, suspend or terminate the agreement.
Consumer’s right to return goods (Section 34)
The act affords a consumer the right to return goods and receive full refund as a form of redress. Nevertheless, this right can be exercised in four circumstances.
- The first being where the supplier has delivered goods to the consumer in terms of an agreement arising out of direct marketing, and the consumer has rescinded that agreement within five days after receiving the goods. The goods can however be returned to the supplier at the consumer’s risk and expense.
- The right can be exercised also when the supplier has delivered goods that the consumer did not have an opportunity to examine before delivery, and the consumer has rejected delivery of those for the reason that they do not meet the expected or the type and quality contemplated in the agreement, or in the case of a special-order agreement, the goods or services do not conform to the material specifications of the special order.
- Consumer can return goods or services where the supplier has delivered unsolicited goods, and the consumer has refused delivery of any of those goods.
- The last circumstance is when the supplier has delivered goods intended to satisfy a particular purpose communicated to the supplier and within seven days after delivery to the consumer, the goods have been found to be unsuitable for that particular purpose.
In the last three circumstances, goods and services are returned to the supplier at the supplier’s risk and expense, within seven days after delivery to the consumer.
In terms of section 32(2) a consumer cannot exercise its right to return goods when there is a law that prohibits return of such goods or if the return of the goods to a supplier is against public health policy or any law. Goods can also not be returned if the goods have been partially or entirely disassembled, physically altered, permanently installed, affixed, attached, joined, or added to, blended or combined with, or embedded within other goods or property.
On return of any goods, the supplier refunds the consumer the price paid for the goods, less any amount that may be charged by the supplier. If goods are returned to the supplier in their original unopened packaging, the supplier may not charge the consumer any amount in respect of the goods. If the goods are returned in their original condition and repackaged in their original packaging, the supplier may charge the consumer a prescribed fee for use of the goods during the time they were in the consumer’s possession, unless they are goods that are ordinarily consumed or depleted by use, and no such consumption or depletion has occurred. A fee by the supplier may also be charged for any consumption or depletion of the goods, unless that consumption or depletion is limited to a prescribed fee necessary to determine whether the goods were acceptable to the consumer. A charge may also be imposed by the supplier for necessary restoration costs to render the goods fit for re-stocking, unless, having regard to the nature of the goods, and the manner in which they were packaged, it was necessary for the consumer to destroy the packaging in order to determine whether the goods conformed to the description or sample provided or were fit for the intended purpose.
In Conclusion
- A consumers’ right to information requires that suppliers must provide any necessary information including environmental impacts that a product has. Such information can be displayed on the package of the product and must be written in plain, simple and understandable language. With regard to products of harmful nature, the supplier must give proper instructions on how to use and handle that product as well as how to dispose of it.
- A consumers’ right to redress is well established in the Act and allows a consumer to approach the Commission or a Court or to seek alternative dispute resolution mechanisms such as reconciliation and mediation. In such forums, the Consumer can be represented by a person of their choice.
- The Act also allows consumers to return goods, and receive a full refund within the parameters of (i) rescission of contract by consumer where there has been direct marketing (ii) rejection of goods where they were not previously examined (iii) delivery of unsolicited goods (iv) the goods unsuitable for the particular purpose.
Our next article will explore the rights to fair contractual arrangements.
Contact Bridget Mafusire for business and legal advice relating to consumer contracts and general commercial transactions on bridget@sustainabilitypractice.co.zw or +263775099750