Question posted in the Consumer Protection Law category relating to Gauteng
My fiance and I booked a wedding for the 5th of February 2021. The contract we signed stated the following: "In the event of a cancellation or postponement - we will try to replace your function. If this is not possible, the lesser amount of R11000.00 - or whatever you have paid, will be retained. If any refund is done an admin charge of R1000.00 will be retained. This applies if you cancel or postpone"
I have already paid R14500.00. Due to the further alert level3 lockdown restrictions I am sure we will not be able to marry on that date. We do not want to postpone. I have sent an email to the wedding venue owner and told him we want to cancel. He said he will retain the R11000.00 Is this possible during covid? Your advise will be apprecited. Kind Regards Jason Pollard
Answer to the Question
Hi there Jason and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
The Consumer Protection Act, No. 68 of 2008 (‘CPA’) was enacted to establish consumer rights and provide accessible redress for consumers who are subjected to exploitation in the marketplace. Among other things, this Act regulates the cancellation of advanced bookings by consumers.
According to Section 17 of the Act, a supplier is entitled to require a consumer to pay a reasonable deposit in advance for committing to a reservation at some other date. In addition, this section allows a consumer to cancel such booking at any stage, subject to the supplier being entitled to charge a reasonable cancellation fee. The Act sets out the criteria for determining a reasonable cancellation penalty in the event that a consumer cancels an advanced booking.
These factors include the nature of the goods or services that were reserved, the length of notice of cancellation, the reasonable potential for the supplier, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice and the reserved date, and finally, the general practice of the relevant industry.
Bearing these factors in mind, it would seem reasonable that where a supplier manages to find an alternative consumer to fill a cancelled booking, the consumer cancelling the booking should be refunded in full in order to prevent the supplier from receiving an advantage at the consumer’s expense, by receiving the same fee twice for the same booking.
Whilst the practice endorsed by individual establishments differs to some extent, a sliding scale cancellation policy seems to be a widely used method of establishing reasonableness. In terms of this policy, the cancellation fee increases as the cancellation date creeps closer to the date of the reservation. This would generally be considered reasonable in the circumstances where it is accepted that it is more difficult for a supplier to find an alternative consumer in a shorter period of time.
Nevertheless, it should be remembered that the onus remains on the supplier to validate its chosen cancellation penalty. The weight of this onus will however vary according to the circumstance. For example, a supplier of accommodation during the festive season, is likely to have a waiting list of potential replacement consumers. In such a case, the supplier should, in theory, only be permitted to charge an administrative fee based on additional time/resources spent as a result of the cancellation.
One of the factors which goes against you, is that you agreed in the contract to pay a cancellation fee of R11,000. The supplier will argue that he is legally entitled to charge a cancellation penalty, and because you agreed to R11,000, that is fair and reasonable.
So, in normal terms he would be right ... but he might not actually be 100% right.
At the moment (and I say AT THE MOMENT) the regulations prohibit social gathering and faith-based gatherings. Have a look at regulation 36 of the current regulations. I am convinced that your wedding falls into this category. At the moment therefore, your wedding can't take place, the supplier can't legally allow you to, and he would need to refund your full R14,500 because he can't perform in terms of the contract.
BUT, I don't know what the regulations are going to say on 5 Feb 2021 ... which is in 20 days' time.
If the regulations stay the same, then he must refund you because it is illegal for him to allow the wedding to take place.
If the regulations lighten up, and actually allow your wedding to take place, then you will either need to hold your wedding or fight about the cancellation penalty!
I think that he has a good argument about the R11,000 cancellation penalty, and suggest that you try to find a middle ground? Perhaps he can keep R7,000 and refund you the rest?
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
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Answer to the Question
Also - http://www.cgso.org.za/wp-content/uploads/2020/03/Cancellations-and-COVID19-Press-Release-March.pdf
For what it is worth.