In-store product prices and the Consumer Protection Act
30 August 2021 | JJ Marais
It sometimes occurs that goods and/or services are displayed at a certain price on the shelf but has a different price when one arrives at the cashier to pay. It also happens that a certain good or service has two differing prices. The question then arises: Which price is the consumer legally obliged to pay for the goods or services?
In terms of Section (23)(3) of the Consumer Protection Act (hereinafter “the Act”), a retailer must display goods together with a price for the advertised goods or services.
Subsection (23)(1) of the Act directs that the provisions of Section 23 do not apply to the following instances:
(a) The supplier provided an estimate, or quotation, in relation to the transaction or where the consumer has waived such an estimate in terms of Section 15 of The Act; or
(b) Section 43 of the Electronic Communications Act and Transactions Act applies.
A retailer is furthermore, in terms of subsection (23)(4) of the Act, not required to display the price of goods or services if:
- The goods and/or services are primarily used as a form of advertisement; or
- The goods and/or services is kept in an area to which the public does not ordinarily have access.
WHAT CONSTITUTES A DISPLAYED PRICE FOR THE PURPOSES OF THE ACT?
Section 23(5) of the Act considers a price to be displayed if it is:
(a) 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 other thing used in connection with the goods or on which the goods are mounted for display or exposed for sale;
(b) in any way represented in a manner from which it may reasonably be inferred that the price represented is a price applicable to the goods or services in question; or
(c) published in relation to the goods in a catalogue, brochure, circular or similar form of publication available to that consumer, or to the public generally, if —
(i) a time is specified in the catalogue, brochure, circular or similar form of publication as the time after which the goods may not be sold at that price, and that time has not yet passed; or
(ii) in any other case, the catalogue, brochure, circular or similar form of publication is dated, and in the circumstances may reasonably be regarded as not out of date.
WHEN MORE THAN ONE PRICE IS DISPLAYED
It might happen that goods or services are displayed with two differing prices. What price is the consumer to pay for the goods or services then? Section 23(6) of the Consumer Protection Act regulates instances such as this and states the following:
Subject to subsections (7) to (10), a supplier must not require a consumer to pay a price for any goods or services —
(a) higher than the displayed price for those goods or services; or
(b) if more than one price is concurrently displayed, higher than the lower or lowest of the prices so displayed.
The provisions of subsection (6) therefore directs that where good or services are displayed with multiple prices, the consumer is entitled to pay the lower or lowest of the displayed prices. There are several instances where subsection (6) will however not be applicable.
EXCEPTIONS WHEN SUBSECTION (6) DO NOT APPLY:
Subsection (6) does not apply if the price of goods or services is determined by, or in terms of, any public regulation.
It also does not apply if a price, which had previously been displayed, has since been fully covered and obscured by a new displayed price as the new price will be regarded as the display price.
Subsection (9) furthermore states that if a price, as displayed, contains an inadvertent and obvious error, the supplier cannot be bound by it, if it has:
(a) corrected the error in the displayed price; and
(b) took reasonable steps to inform consumers to whom the erroneous price may have been displayed of the error and the correct price.
The effect of these provisions are that once the error has been corrected and the consumer informed thereof, the supplier is no longer bound to subsection (6) in that he has to sell the goods or services at the lowest of the displayed prices. A consumer can therefore not, after discovering that a product or service has been advertised at an erroneous price and had been so informed of such error by the supplier, demand to pay the lesser of the displayed prices. He is however entitled to pay the lower of the prices if he has not been made aware of the error prior to agreeing to purchase the goods or services at the erroneous price.
HOW TO ENFORCE RIGHTS IN TERMS OF THE CONSUMER PROTECTION ACT?
Any person acting on his/her own behalf; or who has been authorized to act on behalf of another; or acts as a member of a group or class of people; or within the public interest and with the leave of the court or tribunal; may approach either a court, the National Consumer Tribunal or the National Consumer Commission in order to enforce the rights as included in the Consumer Protection Act.
An association acting in the interest and on behalf of its members, may also approach one of the abovementioned bodies in order to enforce consumers’ rights.