Many travellers have a niggling fear in the back of their minds when making a hotel booking online – what if the hotel looks nothing like it does in the beautiful pictures presented on the site?
This is exactly what happened in the most recent case brought to the Consumer Goods and Services Ombudsman (CGSO), where the complainant booked a holiday in Cape Town over the December holidays during the height of the drought crisis.
The booking was made online, and cost the complainant R135,770 for 10 days. The images online showed a beautiful luxury property with a dazzlingly-blue swimming pool. When the complainant arrived at the rental, they found it bore very little resemblance to the pictures – the place was allegedly uninhabitable.
The complainant received a 35.5% refund from the booking agent – who refused to give them the refund of the balance. The rental agent was of the opinion that they could not fully refund the complainant, as the guests reportedly departed without giving them an opportunity to address the issues that were highlighted.
As a result, the complainant approached the CGSO to find out if they could somehow recover the outstanding R87,533.37 owed to them, and what their rights as consumers were.
According to the CGSO, Section 29 of the Consumer Protection Act (CPA) provides consumers with the right to fair and responsible marketing. ‘In essence, Section 29 prohibits marketing which is misleading, fraudulent or deceptive, or which is conducted in a manner that is likely to imply a false or misleading representation concerning goods or services,’ the Ombudsman said.
Section 29 must also be read with other various sections of the Act, including:
– Section 3(1)(d) which states that it is a purpose of the Act to protect consumers from unconscionable, unfair, unreasonable, unjust, or otherwise improper trade practices;
– Section 4(5)(b), which contains a general prohibition on engaging in conduct that is unconscionable, misleading or deceptive, or that is reasonably likely to mislead or deceive when dealing with a consumer in the ordinary course of the supplier’s business;
– Section 40, which protects the consumer against unconscionable conduct including in connection with the marketing of goods and services;
– Section 41, which explains what false, misleading or deceptive representations for the purposes of the Act are;
– Section 48(2)(c), which provides that a transaction, an agreement, a term or condition of a transaction or agreement or a notice to which a term and condition is purportedly subject, is unfair, unreasonable or unjust if the consumer relied on a false, misleading or deceptive representation, as contemplated in Section 41;
– Section 51(1)(a), (b) and (g), which prohibits a supplier from contracting out of the CPA or depriving consumers of their rights in terms of the CPA;
– Section 54, which gives consumers the right to demand quality services.
– Section 3(1)(d) which states that it is a purpose of the Act to protect consumers from unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices;
‘Based on the photographs in the marketing material and the actual photographs submitted by the complainant, there is clearly a vast difference as to how the property was represented to the complainant versus what the complainant found upon arrival,’ the CGSO said.
‘While we take note of the supplier’s efforts to advise customers of the effects the drought may have on pools and gardens, the fact remains that the general up-keep of the property was lacking. Further, if one considers the amount paid by the complainant for the accommodation, a reasonable person would have expected the property to be in mint condition (as per the marketing photographs) and not in a state of disrepair, including a peeling fence, a broken pool cover, an unkempt garden and clutter in the house.’
In relation to this, the rental agent then did not comply with Section 29 of the CPA.
‘Due to the misleading marketing of the property we are of the view that the complainant was entitled to cancel the agreement and obtain a full refund,’ the CGSO said.
Picture: Pixabay
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