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Putting screws on disclaimers

By unknown | May 31, 2010 | COMMENTS [ 0 ]

HAVE you ever noticed how crazy it sounds when a service provider has damaged or lost your goods and later gives you the finger because they have a disclaimer exonerating them from liability?

HAVE you ever noticed how crazy it sounds when a service provider has damaged or lost your goods and later gives you the finger because they have a disclaimer exonerating them from liability?

Those nonsensical excuses might be limited in four months time when the Consumer Protection Act is extended to cover such instances.

A disclaimer is defined in law as a statement saying that somebody gives up a legal right or claim to something such as damages arising from an accident.

But a disclaimer must be brought to the attention of the consumer.

A number of consumers have lost items as big as vehicles and the service providers have hidden behind disclaimers that were never brought to the consumer's attention.

Last year a Toyota dealership tried to refuse to compensate a client whose vehicle was stolen from its premises because their disclaimer exonerates them from liability.

They later agreed to compensate the client after Consumer Line's intervention.

Matome Meela had barely driven his vehicle for more that 36 hours when it was stolen from the dealership's service department.

The car had defects and he had to take it back to the dealership to be repaired.

Just three hours after he left the car on the premises of the dealership, he got a call that the car had been stolen.

Meela claimed an employee had left the car keys in the ignition, making it possible for the car to be stolen.

Earlier this month another consumer, Mpho Malebatja, found himself without a vehicle after he took it in for a gear service at a Woodmead Volkswagen dealership.

He was later told that Volkswagen was not liable for the damages to the car since he signed a job card relieving VW from any liability should his vehicle be damaged while in their care.

"But the job card did not contain any of that," Malebatja said.

"They could not even show me any such disclaimer board hanging in their premises, except for the one that said they were not responsible for loss of any valuable items left in the car."

He said he believed VW had a duty to take care of his car while it was in their possession.

"They just told me they had opened a case at a local police station and I must lodge an insurance claim," he said.

Malebatja said they should at least meet him halfway and put him in the position he was in before they damaged his car.

"They must just get me another vehicle," he said.

After being given the run-around, Malebatja complained to Consumer Line.

The VW Barloworld dealership declined to comment.

But Samantha Potgieter, a legal and risk consultant, said: "Kindly note that we only received a copy of your letter this morning (that was a day after the enquiry was sent) and have immediately escalated the matter to senior management at Barloworld Motor Retail South Africa, a division of Barloworld South Africa.

"We will revert to the customer directly on receipt of further instructions.

"Unfortunately we are unable to comply with the short deadline you have imposed and will only be in a position to revert to the customer next week."

An attorney at Deneys Reits Attorneys, Kase Mahlaku, said the scope for contractual disclaimers is going to be limited by the Consumer Protection Act when it comes into force on October 24.

He said disclaimers will still be possible in some circumstances, provided they are in clear language and boldly brought to the attention of the consumer.

Mahlaku said disclaimer notices are still a powerful tool used successfully by prudent businesses to avoid liability.

"If these notices are clear and conspicuous, they will usually limit the liability of a business in the event of a claim," he said.

Mahlaku said there would be limited ability for manufacturers or sellers of defective goods, for instance, to rely on disclaimers in the future and contracts would have to be very carefully crafted.


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