Wendy Knowler masthead
November 5 2012 at 10:19

He’s been called a “modern-day hero” and for a few days last week, the UK media couldn’t get enough of him.

So what did Richard Herman of Middlesex do?

He got fed up with companies calling him – sometimes twice a day – wanting to sell him payment protection insurance, or credit insurance. This despite having listed his name on the UK’s TDS – Telephone Preference Service – which is the country’s official, legal opt-out register.

Herman had complained to the country’s Information Commissioner, but was told that as the calls were coming from a company not based in the UK, there was nothing the authorities could do about it.

So during one such telesales call, Herman, who routinely records his phone calls – and this is the crux of the story – warned the caller that should the company call again, he’d charge them £10 (R140) a minute for his time.

Sure enough, another call came, and it took Herman about 19 minutes to confirm that it had come from the same company.

So he sent off a letter to the company, with an invoice for £195, for his time.

He didn’t expect to hear from them again, but he did, in the form of a letter denying he’d ever been contacted by the company, and insisting that his contact details did not appear on their data list, or that of their telemarketing agents.

See, this is the bit which has so delighted people around the world; anyone who has ever deeply resented getting unsolicited “cold” calls from people wanting to flog them stuff, but felt powerless to stop them.

Herman then produced his trump card – his call recordings – and took his case to his Small Claims Court, claiming £195 from the company.

The company settled, paying him £220 – which included the £25 Herman had paid to the Small Claims Court.

He then wrote to the BBC’s Money Box show about his experience. It ran the story, and suddenly, Herman was being hailed as a hero, and became a media darling.

He has created a website – www.saynotocoldcalls.com – in which he outlines what he did to get “peace and quiet”. But he has not named the company concerned, saying he’s been paid for his time, and “I don’t have anything against them any more”.

Interviewed by John Maytham on Cape Talk last Thursday, Herman said he’d had 36 000 hits since he’d set up the website five days earlier.

“I was feeling victimised, but at the time I didn’t think my reaction was in any way unusual,” he said.

So would such a tactic succeed in South Africa?

Well, we do have a Small Claims Court set-up, and if you, as a consumer, are locked in a dispute with a company, you can seek justice with the court in your area.

That is, if the money you claim you’re owed is not more than R12 000.

It’s designed to offer the “man in the street” as cheap an access to justice as possible, but you do have to pay a small amount for the service of the compulsory letter of demand and summons on the company you claim owes you money.

If the company fails to respond, a “default” judgment is subsequently granted in your favour, and if the company then fails to pay up in accordance, things get a bit more complicated and a bit more expensive if you don’t choose to give up at that point.

You have to apply to the magistrate’s court to execute the judgment.

If the company in question is a bit dodgy, that can prove to be a further waste of time and money, as they know how to frustrate the process by making themselves hard to trace or ensuring that they have no assets in their name.

But that’s unlikely to happen in the case of large companies, which mostly, as in Herman’s case, tend to pay before the court date.

And what about the legalities of going after a company that has hounded you despite your telling it to stop?

The Consumer Protection Act entitles a consumer to demand that any company that has approached them, via e-mail or SMS or phone call, to retract such an approach and not contact them again.

But the main bit of protection – the National Consumer Commission’s establishing of an authoritative, legally enforceable Do Not Contact registry – has not yet happened.

So, for now, only the Direct Marketing Association of SA provides consumers with protection against unwanted commercial intrusions with its own opt-out register, and the names on this register are made available to association members monthly.

So, if you register your name on that, the unwanted “spam” from association members will stop.

The association’s Opt Out registration can be found at www.nationaloptout.co.za.

After registering it can take up to a month for your details to be removed from members’ marketing lists.

Of course, as a consumer, you have the right to tell any company to stop pestering you with any form of direct marketing, at any time. The bad news is they might just carry on regardless, as Bly Scott-Williams of Durban found.

The act allows for consumers to put notices on their personal mailboxes, stating  that they do not wish to receive “junk mail”, or words to that effect.

Scott-Williams has written notices across the postboxes at her complex, barring junk mail and free publications, but they get routinely jammed with what she considers to be junk, regardless. She has complained to the companies concerned, but had no joy.

“There’s often no space for my proper mail, which then gets wet when it rains,” she told Consumer Watch.

Phathiwe Keti of Germiston complained of the same thing. “I have two ‘No Junk Mail’ stickers on my postbox, but I’m still getting it,” she said.

“What do I do next?”

Well, I should suggest lodging a complaint with the National Consumer Commission, which is mandated to enforce the act, but I’m not sure that will yield any results.

Ronnel Rajgopaul, who first lodged a complaint against |a company with the commission three months ago, e-mailed me as I was writing this column to say: “I called the commission yesterday and was told that they have complaints from last year which they have not looked at as yet.

“She couldn’t help me to see if the complaint was registered and cut the call when I asked for her name and her reference number.”

But there’s always naming and shaming on social media, and perhaps the bosses of the companies concerned should be pestered with constant calls to stop their unwanted “junk”.

As for those telesales folk who keep calling despite being told not to, I suggest keeping a whistle handy – blowing it into the mouthpiece might just get your message across.

And doing a Richard Herman – setting up a system which enables you to record your phone conversations – will provide you with the proof you need to tackle the big companies that aren’t playing nice.

Seeking to charge such companies for wasting your time, when you’ve told them not to contact you, might just succeed – as in Herman’s case – if you’ve got juicy recordings of yourself asking for the calls to stop, and warning that you’ll be levying a charge if they don’t.

In a sense it’s a pity the Herman case was settled before the court hearing – the evidence, and the ruling, would have been interesting.

Unsolicited goods are not your problem

It’s sadly not uncommon for consumers to be sent goods they haven’t ordered and then be hounded for payment for them.

Worse still, consumers make a legitimate order – and provide their credit card details for payment – but are then sent extra items, which the company simply charges their credit card.

The Consumer Protection Act provides consumers with some handy protection in this regard.

It states, among other things, if “a supplier delivers any further goods to a consumer, other than in terms of a different agreement or transaction, those further goods are unsolicited goods”.

The same applies to the delivery of “a larger quantity of goods than the consumer agreed to buy”.

And the person who has received the unsolicited goods can either keep them without paying for them, or send them back at the expense of the supplier.

If a consumer pays for unsolicited goods, for whatever reason, they are entitled to a refund from the supplier, plus interest.

Which brings me to the case of retired British chef John Tovey, who lives in McGregor in the Western Cape.

About seven weeks ago, for the first time ever, he ordered an item which he’d seen advertised on TV – Homemark’s lumbar seat product. But two parcels were subsequently sent by the company, both signed for by Tovey’s housekeeper in his absence.

The second, unsolicited parcel contained a Royal Diamond Collection of pots and pans, and Tovey later discovered that Homemark had charged a sum of R2 696 on his credit card for them.

“I am literally at my wits’ end, frantically trying to reverse this amount, but I am having no joy,” he told Consumer Watch.

“I immediately phoned Homemark and spoke at great length to a person called Palesa who said she would check the phone calls on their system and get back to me within 48 hours.

“Of course, she didn’t. And my e-mails were ignored.

“At the same time I asked Absa credit card complaints division to cancel the charge, but I was told this was not possible.

“I didn’t order these pots, and besides, I have more than enough cooking equipment to see me to the end of my days!

“Please help!”

I wrote to Homemark’s executive chairman, Dino Hadjipaschalis, saying if Homemark was unable to prove that Tovey agreed to purchase the Royal Diamond Collection, it followed that the parcel should be uplifted and the amount he was charged for it refunded as soon as possible.

Responding, Hadjipaschalis said the customer services manager who had been working on Tovey’s query had since left the company, but that a full refund would be processed.

“Our mail-order division is currently investigating the matter further in terms of the call centre agent who placed the call and I assure you the appropriate action will be taken,” he said.

“I would like to take this opportunity to apologise on behalf of Homemark for any inconvenience caused to Mr Tovey.”

Parachute for 1Time losers

One of the upsides of three South African airlines going bust in the past four years is that there’s increased awareness about a previously little-known consumer protection called chargeback. It’s offered worldwide by banks and their credit card company partners, and sees those who’ve paid for goods or services with their credit cards being refunded if they don’t get what they paid for, and they haven’t been refunded.

A card holder has 120 days from the date of travel, as reflected on the ticket, to dispute and request chargeback via Absa. Should the dispute be found to be justified, the supplier of the service is debited and the cardholder’s account is credited. Chargeback rights apply whether the merchant has been liquidated or not. To claim chargeback via Absa, phone 0861 462 273.

Nedbank clients have just 30 days to raise a chargeback dispute. To claim, call the bank’s call centre at 0860 555 111.

FNB clients have 180 days from the transaction date, or the expected delivery date, to apply for a chargeback. Affected FNB customers should call 087 575 1111 to access the necessary form.

Standard Bank gives its customers 120 days. E-mail: Chargebacks.disputes@Standardbank.co.za

E-mail Wendy: consumer@knowler.co.za

Follow on Twitter: @wendyknowler


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