"(a)Mrs van Rensburg received defective oven. According to common law, this is breach of contract because the supplier didn’t deliver an oven that can do the work it was made for and therefore Mrs van Rensburg has a right to claim for common law remedies including damage in a form of refund.
The Consumer Protection Act 68 of 2008 protects consumers against receiving defective goods. Section 55(2) of this Act states that consumers have a right to receive goods of good quality, goods that are fit for the purposes which they are made for; goods that will last for a reasonable time and goods that comply with standards of Standards Act 23 1993.
Further, there is implied warranty by sellers in section 56(1). Section 56(2) permits consumers to return goods within six months of delivery if they are defective, and when that happens, the consumer may ask the seller to repair, replace or refund the consumer for the defective goods.
Reflecting to Mrs van Rensburg's case, she returned the defective oven within the three weeks, which is within the six months. This makes her entitled to a refund according to this Act. She also thought she will receive a refund since they told her that she can return the oven and in her understanding that meant that the contract was cancelled but she did not send notice to cancel as required by cancellation clause, hence Guzman (Pty) Ltd argues that the contract is not cancelled because she did not send cancellation notice as required by the contract.
Given that Mrs van Rensburg is an Afrikaans speaking person but the contract is written in English, she may have not understood the contractual terms well. According to section 63 of National Credit Act 34 of 2005, consumers are entitled to receiving documents in a language they understand, Afrikaans in this case.
Further, In the Standard Bank of South Africa v Dlamini case, the facts were similar to that of this case. The court stated that suppliers must tell consumers about their rights and duties. In that case, Mr. Dlamini wasn't informed properly and he couldn't understand English, the court gave an order to cancel the contract. The court also emphasised on the importance of unambiguous and clear terms of contract as well as the interpretation of contractual clauses in against the party that drafted them. This means, in this case, the ambiguity regarding cancellation clause should be interpreted in favour of Mrs van Rensburg.
To conclude, Mrs van Rensburg should get her refund based on common law principle of breach of contract and the plain language issue, and requirement of cancellation notice can’t be regarded due to ambiguity of the clause.
"(b) Mrs van Rensburg is impressed with your skills as a contract law attorney. She
decides to appoint you as her attorney. Mrs van Rensburg instructs you to write a
letter of demand to Guzman (Pty) Ltd. Draft a letter of demand that sets out your
client’s demands in accordance with your answer provided at (a) above.
[Your Name]
[Your Address]
[City, State, ZIP Code]
[Email Address]
[Phone Number]
[Date]
Guzman (Pty) Ltd
[Company Address]
[City, State, ZIP Code]
ATTN: [Recipient's Name]
Subject: Letter of Demand - Defective Oven and Refund
Dear [Recipient's Name],
I hope this letter finds you well. I am writing to you on behalf of my client, Mrs van Rensburg, regarding the recent purchase of an oven from your company. As you may be aware, Mrs van Rensburg received a defective oven, which has led to a breach of contract. We expect your prompt attention to this matter and the fulfillment of our client's legal rights as outlined below.
Under common law, it is clear that Mrs van Rensburg is entitled to claim common law remedies for the breach of contract she has experienced. As a result, she has the right to demand a refund as compensation for the defective oven that did not serve its intended purpose.
Furthermore, the Consumer Protection Act 68 of 2008 protects consumers like Mrs van Rensburg against receiving defective goods. Section 55(2) of the mentioned Act explicitly states that consumers have a right to receive goods of good quality, which are suitable for the intended purpose, durable for a reasonable time period, and compliant with the Standards Act 23 of 1993.
Additionally, section 56(1) of the Consumer Protection Act establishes an implied warranty by sellers, which entitles consumers to return goods within six months of delivery if they are found to be defective. Mrs van Rensburg adhered to this provision by returning the defective oven within three weeks, well within the stipulated six-month timeframe. In accordance with section 56(2) of the Act, a consumer has the right to request the seller to either repair, replace, or refund the defective goods. In this case, our client is demanding a refund as the most appropriate remedy considering the circumstances.
We acknowledge that Guzman (Pty) Ltd argues that the contract is not cancelled due to Mrs van Rensburg's failure to send a specific cancellation notice as required by the contract. However, our interpretation of the cancellation clause reveals ambiguity, and therefore, it should be interpreted in favor of Mrs van Rensburg. Additionally, we draw your attention to the fact that Mrs van Rensburg is an Afrikaans speaking person, whereas the contract was written solely in English. Under section 63 of the National Credit Act 34 of 2005, consumers are entitled to receive documents in a language they understand. Therefore, there may have been a language barrier for our client in fully comprehending the contractual terms.
It is crucial to highlight the principles established in the Standard Bank of South Africa v Dlamini case, where the court emphasized the importance of suppliers informing consumers of their rights and duties. In that case, the court ordered the cancellation of the contract as Mr. Dlamini was not properly informed and could not understand the English language. The court further emphasized the significance of unambiguous and clear contractual terms, suggesting that the interpretation of such clauses should be made against the party that drafted them.
In conclusion, we assert that Mrs van Rensburg is entitled to a refund based on the common law principle of breach of contract, the language barrier issue, and the ambiguity of the cancellation clause. We kindly request your immediate attention to this matter and a prompt response outlining your decision to fulfill our client's demands for a refund within [reasonable timeframe]. Failure to do so will leave us with no choice but to escalate this matter through legal channels.
We look forward to your prompt response and a favorable resolution to this dispute. Should you have any questions or require any further information, please do not hesitate to contact me at your earliest convenience.
Yours sincerely,
[Your Name]
[Your Title/Position]
[Law Firm Name]