Question posted in the Consumer Protection Law category relating to Western Cape
Hi,
My wife paid for her son's dental treatment in 2022. The dentist then made a special mountpiece for him to wear. It didn't last 2 days when it broke. She sent it back to fix. They then fixed it once, after which it broke again, and a new one was made which also broke within 2 hours. She phone them and informed them we will not be paying for a mouthpiece that continues to break.
We never heard back from them and the last statement was in May 2023. No other communication was made after then.
During this week, she received an email from a litigation attorney demanding the outstanding balance of R2300 be paid plus their legal fees.
What is our rights in this instance, are we still liable?
Message from the Lawyer
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I think that your wife adopted the correct approach back in 2022 when she phoned to advise the dentist that she won't pay for a mouthpiece that continues to break. Does she have any record of that?
The best thing for your wife to do is to send a letter in reply to the email, explaining the FULL story, with dates, times, etc, etc and explain that she can't be expected to pay (and won't pay) for a service which was not properly rendered, especially when the mouthpiece continued to break - which leads one to believe that it was completely defective.
She must say that if the dentist believes that he has a good claim against her for payment, then she will defend the claim in court and file a plea (defence) explaining all about the services and the defective mouthpiece.
Based on that, and taking into account the claim of R2300, I am quite confident that the litigation attorney will tell the dentist that proceeding with the claim is a waste of time.
I can even suggest that you read this article all about defective goods which essentially confirms the CPA position that consumers have the right to return unsafe or defective goods and request a full refund for such goods, provided this is done within a reasonable period.
Clearly, your wife returned the mouthpiece and laid the complaint within a reasonable period of time!
Message from the client
Thank you for the detailed answer and link. Will have a look at that.
There is no record of the initial phone call
She did write a follow email explaining the time-line and that she can't be expected to pay for an item that was breaking the whole time and also informed them of that.
The dentist then responded with a signed letter that states the following (short version and translated from Afrikaans):
"I (the dentist) can't be held responsible for the mouthpiece breaking, it has to do with my wife's son musclular functions and possible other factors out of my control. We invited you to come and solve this but the invite was not taken up by you. The reception lady did try make contact with you. Monthly statements was still emailed to you."
The litigation laywer then also responded that after the letter from the dentist, they are under instruction not to litigate further via email correspondance and will proceed if full payment plus their fee are not paid by Monday 22 July.
Would the above change any of it?
Message from the Lawyer
There is no record of the initial phone call -- but at least she can remember that there was a call. She must just say in the reply email that she called the office and explained XYZ.
She did write a follow email explaining the time-line and that she can't be expected to pay for an item that was breaking the whole time and also informed them of that. -- excellent. This should definitely assist in defending the case.
I don't think that the dentist's answer is a good answer... "possible other factors".
The fact of the matter is that a mouthpiece must be defective if it breaks twice, the second time within 24 hours!
You must decide whether you want to settle with them (maybe you propose 50% or something) or whether you tell them to see you in court.
Your defence is that the mouthpiece was defective and you can't be expected to pay for a service which was defective! CPA rights!
Message from the client
Message from the Lawyer
Tell him that you never hired him, so you are not going to be paying him.
Tell him that you know that the only time that you can be held responsible for his fees is if he gets a court order which orders you to pay the fees ... and even then, it would be based on the magistrates court tariff!