Knowler — cooling-off exclusions (TimesLive)

TimesLive Consumer Live, 24 November 2023 · Wendy Knowler

Why the site cites this

The Nikki/books case is the cleanest documented example of Takealot framing a non-returnable item as having no warranty at all, when in fact ECT s 42(2) only disapplies the s 44 cooling-off — the CPA s 56 6-month defective-goods warranty still applies. Knowler corrects this directly. The article also enumerates the full ECT s 42(2) carve-out list, which is useful as a reference for Clause 10.

Verbatim extracts (fair-dealing quotations)

The Nikki case

“Nikki asked me via X: ‘I ordered three books from Takealot to look at and decide between them, only to discover they are all non-returnable. Is this allowed as I ordered them online? Should I not have seven days in which to return them?’”

Takealot’s response (the misframing)

“The response she received from the country’s largest e-tailer reads: ‘Non returnable: No warranty at all, except for delivery damages, if applicable.’”

Knowler’s correction

“That’s a bit confusing as the six-month Consumer Protection Act warranty against defects applies, but not the seven-day ‘change your mind’ cooling-off period.”

The ECT framework

“Online purchases are regulated by the Electronic Communications and Transactions Act, which gives us a cooling-off period of seven days in which to change our minds and return the goods (at our cost) for a full refund within 30 days.”

The full ECT s 42(2) carve-out list

“However, there are exclusions, among them ‘newspapers, periodicals, magazines and books’. Also insurance products, goods bought on an online auction, fast-moving consumer goods meant for daily consumption (Sixty60, et al), lottery tickets, and ‘purchases for the provision of accommodation, transport, catering or leisure services and where the supplier undertakes, when the transaction is concluded, to provide these services on a specific date or within a specific period’.”

The why

“So you can’t order a bunch of books and magazines online, binge-read for a week and then send them back.”

Risk-of-loss in transit (companion paragraph)

“The online retailer and its third-party courier carry the risk for the goods until they are delivered to you, and only then does it pass to you. You’d be entitled to a refund from the retailer if the goods didn’t make it to your door.”

Where retailers misfire

“However, don’t assume all online retailers will respect your consumer right to a refund. I’ve heard from consumers who received damaged goods and were told by the retailer to seek recourse from the courier company, and vice versa.”

Site reliance

• Clause 10 (Non-Returnable Items): the centrepiece. Takealot’s “No warranty at all” framing on books is wrong. ECT s 42(2) only disapplies s 44 cooling-off; CPA s 56 still runs. A book that is defective (binding faulty, pages missing, wrong content) is still defective goods.
• Reference framing for the ECT s 42(2) carve-out list — useful when explaining what is legitimately non-coolable.
• Risk-of-loss-in-transit: retailer + third-party courier carry the risk until delivery; consumer not stuck with a “deal with the courier” deflection.

Wayback / archive status

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