A LEGAL expert believes that BlackBerry users are unlikely to find consumer protection as underlined by national consumer commissioner Mamodupi Mohlala last week. The crash of the phone's e-mail and messenger services began last Monday, affecting users in Europe, the Middle East, Africa, India, Brazil, Chile and Argentina, and spreading to North America by Tuesday. Research In Motion (RIM), the company behind BlackBerry smartphones said the problem was sorted on Thursday.
Commissioner Mohlala said consumers would find protection under sections 55, 56 and 61 of the Consumer Protection Act, which provides rights on the quality of goods, and liability for damage caused by goods.
However, Albert Aukema, associate in the competition practice at Cliffe Dekker Hofmeyr underlined the difference between goods and services, saying the outage was a services issue. "Although the scope of these sections have yet to be interpreted by the courts, it is unlikely that such a challenge would be in line with the provisions of the CPA. "If anything, the interruptions should accurately be categorised as impacting on the quality of the service being rendered to consumers," said Aukema. "The interruption appears to have been unrelated to defects in the handsets supplied to consumers as part of the service offering."
Meanwhile, a number of SA-based mobile operators (MTN R10 to each customer and Vodacom 20 minutes of calls and 20 SMS's on Vodacom to Vodacom service) moved to provide some form of compensation to BlackBerry customers, "as a token of goodwill".
Source: Mail & Guardian
Notes:
In the article above, it is mentioned that "Commissioner Mohlala said consumers would find protection under sections 55, 56 and 61 of the Consumer Protection Act ("the act"), which provides rights on the quality of goods, and liability for damage caused by goods." It is also mentioned that "it is unlikely that ... a challenge would be in line with the provisions of the CPA. ... If anything, the interruptions should accurately be categorised as impacting on the quality of the service being rendered to consumers."
Legislation must be interpreted to promote the spirit, purport and objects of the Bill of Rights. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone. See Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd (CCT 57/11) [2012] ZACC 2 (13 March 2012) at 151.
In our view, it is important to read the provisions in Part H (fair value, quality and safety) of the act as a whole to intepret any provision contained in that part.
It is similarly important to apply a purposive interpretation to the provisions. By applying such an interpretation, it is important to read Chapter 1 of the act, which deals with the interpretation, purpose and application of the act. It is thus incorrect to apply a mechanical application of traditional (un-transformed) rules of interpretation.
Chapter 2 of the act deals with fundamental consumer rights. The chapter is divided into parts, each part dealing with an aspect of as the consumer's right as follows:
Part A: The right of equality in the consumer market
Part B: The right to privacy
Part C: The right to choose
Part D: The right to disclose and information
Part E: The right to fair and responsible marketing
Part F: The right to fair and honest dealings
Part G: The right to fair, just and reasonable terms and conditions
Part H: The right to fair value, quality and safety
Part I: The right to accountability
Section 55 of the the act deals with the consumer's right to safe, good quality goods. Section 56 deals with the implied warranty of quality of goods supplied.
Section 61 of the the act deals with liability for damage caused by goods. The section provides that "the producer or importer, distributor or retailer of any goods is liable for any harm ... caused wholly or partly as a consequence of -
(a) supplying any unsafe goods;
(b) a product failure, defect or hazard in any goods; or
(c) inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods,irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be."
Section 61(2) of the act provides that "a supplier of services who, in conjunction with the performance of those services, applies, supplies, installs or provides access to any goods, must be regarded as a supplier of those goods to the consumer, for the purposes of this section."
Section 61(5) of the act provides that "[h]arm for which a person may be held liable in terms of this section includes -
(a) the death of, or injury to, any natural person;
(b) an illness of any natural person;
(c) any loss of, or physical damage to any property, irrespective of whether it is movable or immovable; and
(d) any economic loss that results from harm contemplated in paragraph (a), (b) or (c).
It is important to note that the article above ommits a reference to section 54 of the act, which deals with the consumer's right to demand quality service. The section reads as follows:
"(1) When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to-
(a) the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;
(b) the performance of the services in a manner and quality that persons are generally entitled to expect;
(c) the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services; and
(d) the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services, having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services.
(2) If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either-
(a) remedy any defect in the quality of the services performed or goods supplied; or
(b) refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure."
We therefore do not agree with Albert Aukema, associate in the competition practice at Cliffe Dekker Hofmeyr, that "it is unlikely that ... a challenge would be in line with the provisions of the [act]." It is apparent that Aukema has applied on outdated rule of interpretation in his analysis of the act.
Whilst the interpretation of the act by Aukema may favour the service provider, at the prejudice of the consumer, it is unlikely to find favour with a transformed court that promotes the spirit, purport and objects of the Bill of Rights, contained within the Consititution of South Africa.
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