Consumer advocate struggles for refund

If companies comply with the minimum requirements of the Consumer Protection Act (CPA), the National Consumer Commission (NCC) will find it acceptable.

This, after Advocate Craig Sassman, an expert in consumer law, had to jump through hoops to get a refund from Flysafair.

The Marina da Gama lawyer booked a return flight to Port Elizabeth on Saturday October 6 2018 for October 24 but when his appointment fell through he cancelled his booking on Monday October 8.

“Flysafair said they have a ‘no cancellations policy’ which means no refunds and I had to choose another flight and pay R100 to make the change plus the additional cost of the new ticket fare, if any. As an advocate specialising in consumer law, I knew this was a violation of my rights under the CPA which allows me to cancel a booking and pay a reasonable cancellation fee,” Mr Sassman said.

“Flysafair said they charge a 100% administrative fee for cancellations and that if you give 45 days’ notice to cancel then they only charge 50%. I asked how can you enforce a 45-day notice to cancel if the time between the sale of the ticket and the flight date is not even 45 days. It means that the consumer is disadvantaged.

“I reminded the consultant that I also paid for travel insurance which stated on their website that it costs R60 and allows you to claim up to 100% of your ticket price for a cancellation. The consultant said this insurance is held with Chubb and I should contact them. At Chubb a rude woman said: ‘We are not talking about law here. We are talking about insurance. We only cover you if you cancel due to death or hospitalisation’, I told her the CPA already gives me this protection for free and she referred me back to Flysafair,” Mr Sassman said.

Mr Sassman complained to the NCC who delegated it to the Consumer Goods and Services Ombud (CGSO) who said it does not fall within their mandate and referred him to the Airlines Association of South Africa who sent him back to the NCC which eventually agreed to investigate towards the end of 2019.

In February 2020 the NCC ordered Flysafair to amend their policies in line with the act and refund Mr Sassman the ticket price of R1 965.

Correspondence between Mr Sassman shows five people from the NCC were involved, including Lethabo Ramphele who wrote to Flysafair on February 26 2019: “Please find the complaint for your attention. You are required to respond in writing to the Commission by no later than March 6 2019. Also do liaise directly with the consumer for purposes of resolution and copy myself on your communication thereof”.

Trying to contact Flysafair and the media spokesperson for the NCC was like trying to catch a will-o’-the-wisp.

Kirby Gordon, executive manager of Safair operations, at first denied all knowledge of the Sassman affair although his name was in the subject line of the letter I sent him. Phetho Ntaba of the NCC didn’t respond either.

Then came lockdown. When it eased to level 3 Mr Gordon said my messages had gone to junkmail but he knew about Mr Sassman’s complaint.

“Our refunds policy is in line with the legislation and it has been vetted by our external legal counsel. The CPA does apply to transactions with individuals. Section 17 deals with a consumer’s right to cancel an advance reservation; the charging of a ‘reasonable cancellation fee’ is also discussed; the potential for the service provider to find another client between the cancellation and the time of the cancelled reservation; and; the general practice of the relevant industry.

“Our policy is more favourable to the consumer in that we allow for the 45-day 50% cancellation fee which we felt was necessary to comply with the CPA. Our competitors do not give this allowance, but our analysis of the general booking curve, showed that the probability of reselling a ticket was 50/50 at about 46 days, and so we felt it would be unreasonable to impose the full penalty beyond that point. Mango Airlines and Kulula make provision for this and it has bearing on general industry practice,” said Mr Gordon.

He said they wrote to the NCC explaining their position but have had no further correspondence.

Flysafair have no intention of changing their refund policy as “we are compliant”.

“Our terms and conditions have been drafted knowing that they protect both the consumer and our business. Rules are blunt instruments and each case warrants its own review. We have chosen to refund Mr Sassman based on our own review of this case,” said Mr Gordon.

“The sale of air tickets is complex,” Mr Gordon explained, “and is made more complicated by a dynamic market pricing structure that comes into play. Seats are traded on a commodity market with a discrete price-point determined by the popularity of the travel date as well as the time before departure. A seat we sell today is sold at a particular price at a particular point in time, and the notion that it can be resold is theoretical at best. Aircraft barely ever depart full.”

Ms Ntaba confirmed that it is a long process for the NCC to investigate a complaint with a 120-business day turnaround from the day of approval.

“We do not know if Flysafair amended their policy but through our investigation we felt that they complied with the minimum requirements of the CPA, even though the reason for cancellation did not comply with Section 17(5) of the act (I suspect the NCC is misinterpreting S17(5) of the act which does not require a specified reason for cancellation). From the documents Mr Sassman sent us it seems that Flysafair does have a cancellation policy and the NCC expects it to comply with the CPA,” Ms Ntaba said. “There is no sanction as Flysafair refunded the money.”

Ms Ntaba said the NCC does not make a ruling but refers matters to the National Consumer Tribunal for adjudication.

The matter was resolved informally between the parties.