LOOK AN UNSOLICITED HORSE IN THE MOUTH
The receipt and acceptance of unsolicited goods raises a variety of conundrums, only some of which are covered by the Consumer Protection Act. The Consumer Protection Act 68 of 2008 aims to promote a fair, accessible and sustainable marketplace for consumer products and services and to establish national norms and standards for consumer protection. Consumers must, however, take care to protect themselves from suppliers to avoid becoming offenders in terms of the Counterfeit Goods Act. In terms of the Consumer Protection Act, a supplier means “any person who markets any goods or services”. A consumer, for purposes of this article, includes:
• a person to whom goods and/or services are marketed in the ordinary course of the supplier’s business; and
• a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business.
Situations may occur where a consumer receives unsolicited goods from a supplier. The consumer may then decide whether or not to retain such unsolicited goods.
The Consumer Protection Act defines the circumstances where goods or services are, and/or become unsolicited. If the supplier supplies the consumer with goods that are materially different from the goods stipulated in terms of an agreement between the supplier and the consumer, the Act defines them as unsolicited goods, unless the consumer expressly consented to the material change.
Furthermore, if the supplier delivers goods to the consumer without the consumer having expressly or implicitly requested the delivery of the goods, they are unsolicited. The consumer’s right to choose what to do with unsolicited goods is also set out in the Act. A consumer may either retain the goods or return them to the supplier at the risk and expense of the latter.
If a consumer chooses to retain unsolicited goods, the property rights in those goods pass unconditionally to the consumer. The consumer thereby becomes the owner of the goods, subject only to any right or valid claim to the goods that an uninvolved third party may have. However, it is the person who supplied or delivered those goods who is liable for any right or valid claim against them. What if the unsolicited goods are counterfeit?
The Counterfeit Goods Act may cause the consumer to profoundly regret his decision to retain unsolicited goods if the consumer did not merely retain the goods for his or her own private and domestic use but for purposes of dealing in them. The former can be used as a defence when faced with the offence of dealing in counterfeit goods.
The Counterfeit Goods Act clearly provides that dealing in counterfeit goods is prohibited and constitutes an offence. It stipulates that counterfeit goods may not, inter alia, be in the possession of or under the control of any person in the course of business for the purpose of dealing in those goods.
Significantly, the mere possession of counterfeit goods does not in itself constitute an offence in terms of the Counterfeit Goods Act. What does constitute an offence is possession of counterfeit goods for the purpose of dealing in them – for example, to offer such goods for sale.
The Act makes it clear that the possession of counterfeit goods for one’s own private or domestic use is not prohibited. If this was the case, that fake pair of Versace shoes in the back of your closet, used for mowing the lawn, may well have landed you in a lot of trouble. Offering multiple pairs of such gardening shoes for sale in a shady part of town, however, is a different story.
If a consumer who opted to retain unsolicited goods knew or had reason to suspect that the goods were counterfeit, and then sold them, he could be guilty of an offence. Simply claiming that he or she did not know that the goods were counterfeit would not suffice. This rings true for most aspects of law. The ‘Ignorantia Juris non excusat’ rule remains. Ignorance of the law is no excuse.
Self evidently, one cannot always know whether or not goods are counterfeit. One rule of thumb is that if the quality of the goods in question is noticeably poor or the purchase price is suspiciously low, the consumer ought to have taken into consideration that the goods may not be authentic.
It follows therefore that, if, having the suspicion that the goods may not be authentic, the consumer retains them for purposes of dealing in them, he or she could become an offender in terms of the Counterfeit Goods Act. I n short, if the fake shoe fits, wear it; but do not sell it!