We’re helping a client who recently discovered her MTN contract only allows her to make 50% of her calls to other networks, with the result that she cannot use all her airtime. Does the Consumer Protection Act provide a solution?
THE PROBLEM
In June 2021 our client, being a loyal customer of MTN, was due for a contract upgrade so she visited her local store for assistance in this regard. Our client signed the contract without reading it.
A month later our client found she was unable to make calls to her contacts even though she had plenty of airtime left. This happened at a crucial time as the client and her family were ill due to Covid-19 and everyone needed to be in reliable communication with each other whilst they were self-isolating.
MTN advised our client that the contract which she had signed up for was one in which 50% of her airtime was allocated for calls to all other networks and the other 50% was allocated for calls to other MTN numbers. She had used up her allocation for calls to other networks and so she only had airtime to contact other MTN numbers left.
This came as a shock to our client as this condition was not in her previous contract with MTN, and she was not warned of this limitation as it would have swayed her decision on whether to proceed with the contract or not.
She tried – without success – to have this limitation removed and then sought to cancel her contract. She was advised that she would be charged a cancellation fee of R 8,000.00.
WHAT ARE OUR CLIENTS RIGHTS?
Such a contract with a cell phone provider is regulated by the Consumer Protection Act (the CPA).
In the client’s previous MTN contract, she was not restricted when it came to making calls to different networks and she could expect that with the new contract, the situation would be the same. The MTN salesperson did not correct this misapprehension on the part of our client. This breached section 41(1)(c) of the CPA which states: “In relation to the marketing of any goods or services, the supplier must not, by words or conduct… fail to correct an apparent misapprehension on the part of a consumer, amounting to a false, misleading or deceptive representation, or permit or require any other person to do so on behalf of the supplier.”
The allocating of airtime to different network providers is a clause which would have needed to be expressly drawn to the consumer’s attention in terms of section 49 of the CPA which says:
”(3) A provision, condition or notice [which limits the risk or liability of the supplier] … must be written in plain language…
(4) The fact, nature and effect of the provision or notice … must be drawn to the attention of the consumer—
(a) in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances; and
(b) before the earlier of the time at which the consumer—
(i) enters into the transaction or agreement, begins to engage in the activity, or enters or gains access to the facility; or
(ii) is required or expected to offer consideration for the transaction or agreement.
(5) The consumer must be given an adequate opportunity in the circumstances to receive and comprehend the provision or notice ….”
If a supplier doesn’t comply with the duty to draw the contract term to the attention of the consumer, then the CPA says the term is automatically seen to be unfair, unreasonable and unjust. Such unfair terms are forbidden in the CPA and are invalid. In other words, MTN can’t limit our client’s calls with reference to the service provider being called, but must provide her with full use of her airtime.
WHERE TO FROM HERE FOR THE CLIENT?
SOLUTIONS
Section 69 of the CPA sets out the various avenues available to a consumer in enforcing their rights against a supplier. The avenues available are to directly approach the National Consumer Tribunal – if the situation so warrants, an ombudsman with jurisdiction, a consumer court, an alternative dispute agent, the National Consumer Commission or approaching a civil court which has jurisdiction.
Since the nature of this complaint is one which involves a telecommunications service provider, we advised our client to lodge a complaint with the Independent Communications Authority of South Africa (commonly known as ICASA).
Prior to ICASA stepping in to assist consumers with their complaints, they require a consumer to furnish them with some proof showing that they have exhausted all the internal avenues that the supplier has available to the consumer. For more information regarding what you, the consumer, need to do before laying a complaint with ICASA as well as the process involved in laying a complaint, you can go onto the following link: https://www.icasa.org.za/pages/consumer-complaints.
You can contact us at admin@broekmann.co.za or 021 422 0269 should you need assistance in exercising your rights against communications-based service providers.