The Consumer Protection Act No 68 or 2008 does not; and has not negated or overridden entirely the voetstoots clause.
The voetstoots clause is a clause in an agreement that expressly states that the buyer of a vehicle or in fact any item sold; is sold voetstoots or “as is”.
In other words that you buy the vehicle or item as you see it without any guarantee or warranty; and the risk in the vehicle or item is at the entire risk of the purchaser from the date of sale.
There is another misconception and that is that the voetstoots clause is no longer valid and no longer has any affect in SA Law. This is not the case.
A voetstoots clause is binding between a seller and a purchaser in normal circumstances; if that is a condition of their agreement of sale.
The seller must however disclose fully to the buyer all the defects and damage to the vehicle which he is aware of at the time of the sale.
It is advisable to include a clause in the sales document in which those defects are expressly set out so that here is little doubt as to exactly what defects and damage was discussed and disclosed at the time of the sale of the vehicle.
Generally speaking; a voetstoots clause in a private sale of a motor vehicle is binding on the parties to the transaction; provided there has been full disclosure by the seller.
If the seller withholds known defects or damage from the purchaser and these later come to light; the seller cannot rely on the protection of the voetstoots clause to avoid liability for damages to the purchaser or perhaps even a legal right in favour of the purchaser to cancel the entire sale and to claim both the purchase price and his actual damages back from the seller.
When it comes to the purchase and sale of a vehicle from a dealer however the voetstoots clause which is a common law protection is subject to the limitation of the Act and the provisions of the CPA.
As we have previously discussed; the CPA protects the consumer and this protection includes a statutory implied warranty for a period of 6 months after the date of sale which can be extended by a further period of up to a further 3 months, if the dealership carries out a repair on the car at your request. This is an extended implied statutory warranty.
These warranties are in terms of the Act itself and override all other written and common law warranties.
Should you have experienced a problem with a vehicle that you might have bought recently; whether privately or from a dealership; and you are experiencing problems with the vehicle; you are invited to send us an email with your queries.
Please also look at our website www.legaladviceoffice.co.za for further information.
The Legal Advice Office Team.