INTRODUCTION TO CPA PROVISIONS RE NON-REFUNDABLE DEPOSITS & CANCELLATION FEES – MARCH 25 2017 [574]

25 April, 2017

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This is most probably the application of the CPA that most often ‘rears its head’ in the travel & tourism industry – various sections (8 in total!!) of the CPA apply – the main one is section 17 but we’ll look at each of the 8 & then provide you a ‘what to do’ guideline on each.
However the first thing to do is to have a look at the common law, i.e. the law that applies whether or not you resort to/apply the CPA:
• It is my view that the CPA has not revoked the common law per se
• Thus such common law duties as caveat emptor (‘Buyer beware’) and caveat subscriptor (‘Signatory beware’), especially read with my 1st point above, are in my view ‘alive and well’ – It means that travelers cannot sign documents ‘blindly’ & then when they end up ‘in a pickle’, have to cancel etc expect the CPA to come to their rescue – they have to behave responsibly i.e. read all T&C, ask questions & be satisfied with the explanation BEFORE they sign and pay for their journey- generally speaking, whilst the travel agent is required to explain (in more detail than before the CPA) the ‘ins & outs’ of a trip, especially onerous aspects such as non-refundable deposits and cancellation fees, the traveler is accountable & must accept responsibility

• Section 2 (10): Interpretation – states that:
‘No provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law’
• Section 4 (2): Consumer Rights states that
‘The court must develop the common law as necessary to improve the realisation and enjoyment of consumer rights generally, and in particular by persons contemplated in section 3(1)(b)’ (low-income etc) – accordingly the current common law will be ‘embroidered upon’ & developed within the context of the CPA and bearing in mind the new safeguards and protection of consumer rights it contains. Conversely the CPA does not mean the end of the common law
• Section 56 (4): Implied Warranty specifically states that the implied warrant contained in section 56 (1):
‘… applies in addition to any other implied warranty or condition imposed by the common law’
The above may be read to imply that whilst consumer common law rights are retained and in fact enhanced, supplier common law rights have been revoked – I don’t believe that to be the correct reading or implication of the CPA as inter alia the rules of interpretation clearly states that such a meaning must be unequivocal which I do not believe to be the case – thus there are a number of supplier rights which we will deal with in a separate series of articles
‘WHAT TO DO’ GUIDELINE
• Revisit your documents e.g. booking form, quote and T&C
• Be aware of your rights as a supplier in the CPA
• Notwithstanding the common law duties of the consumer/traveler discussed above, ensure that you’ve brought all onerous aspects of the journey (Such as cancellation, deposits, visas, passports to name but a few) to the attention of the traveler (At least once during your relationship with them), get them to initial or at least acknowledge in some way the pertinent clauses/that you’ve brought it to their attention – especially with 1st time travelers - & DO NOT assume anything!
• Don’t panic when you receive a consumer complaint and/or letter from the consumer commissioner!

Saurce: Louis The Lawyer