The Consumer Protection Act, No 68 of 2008; (CPA) came into effect at midnight on the 31st March 2011 and has changed consumer law in this country irrevocably.
We concentrate on this piece of legislation in our various blogs on this website; and in particular on how the CPA impacts on our everyday life.
One of the issues that comes up on a regular basis is the question of how the CPA impacts on the purchase and sale of motor vehicles.
There are a number of innovative consumer protection mechanisms in the CPA; which are revolutionary in nature; and which effect the purchase and sale of motor vehicles by consumers; which are transactions which take place each and every day of the week throughout the country; and involve, consumers, service providers (dealers) and very often also banks or financial institutions as they are often consumer financiers.
The CPA covers both the supply of goods and the provision of services.
One of the most important provisions of the CPA is that contained in section 55 of the CPA.
How does this affect the sale of motor vehicles in particular?
Section 55 of the Consumer Protection Act of 2008 guarantees the Consumer’s rights to safe and good quality goods.
The heading to this section is “Consumer’s rights to safe, quality goods” and it has six subsections.
Section 55(1) states that: “This section does not apply to goods bought at an auction, as contemplated by section 45.” An auction also includes a sale in execution in terms of a court order of execution in terms of section 45 (1). So all goods bought on an auction or at a sale in execution pursuant to a court order are specifically excluded from the provisions of the whole of section 55.
This clearly would apply to all cars and vehicles bought either at an auction or at a sale in execution which usually is in the form of an auction anyway. In other words; if you bought a vehicle at an auction or a sale in execution you do NOT have the protection of section 55 of the CPA; although you may still have a common law remedy depending on the facts.
Section 55(2) states that: “ Except to the extent contemplated in subsection (6), every consumer has a right to receive goods that: – (a) are reasonably suitable for the purposes for which they are generally intended; (b) are of good quality, in good working order and free of any defects; (c) will be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and (d) comply with any applicable standards under the Standards Act, 1993 (Act No 29 of 1993), or any other public regulation.”
This subsection is very wide and very explicit and is the basis upon which we, as consumers, have the implied warranty set out in section 56 of the CPA. This subsection of section 55 is therefore very important and wide-ranging and applies to the purchase of all motor vehicles; whether bought brand new or second hand.
We will deal with section 56 and motor vehicles in our next blog.
Section 55(3) states that: “ In addition to the right set out in subsection(2)(a)(see above), if a consumer has specifically informed a supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier:- (a) ordinarily offers to supply such goods; or (b) acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.”
This clearly would also apply to all vehicles which are bought either brand new or again second hand.
An example will help to clarify this.
If you buy a second hand car; and you say to the salesman at the supplier’s place of business that you intend to use this car off road and you actually ask whether it will be suitable for off road purposes and he says it will and can be used off road; or even simply implies that that would not be a problem; and the car thereafter exhibits defects as a result of its use off road; then you have an additional right in terms of this subsection of section 55 to rely on that advice from the supplier and this would allow you to exercise the right to the implied warranty in terms of section 56 when you used the vehicle in those circumstances. This is perhaps an extreme example but you essentially you relied on and have the right to rely on the supplier’s expert advice; and have an additional warranty as a result in terms of this subsection of section 55.
Section 55(4) reads: “ In determining whether any particular goods satisfied the requirements of subsections (2) or (3), all of the circumstances of the supply of these goods must be considered, including but not limited to:- (a) the manner in which, and the purpose for which, the goods were marketed, packaged and displayed, the use of any trade description or mark, any instructions for, or warnings with respect to the use of the goods; (b) the range of things that might reasonably be anticipated to be done with or in relation to the goods; and (c) the time when the goods were produced and supplied.”
This is really to a large degree self-explanatory and does not warrant further elaboration. As can be seen however it is wide-ranging and the normal meaning of the words must be used to interpret each set of circumstances in seeing or determining whether they apply to a certain set of facts; and in particular to the purchase of your vehicle.
Sections 55 (5) states: “For greater certainty in applying subsection (4):- “(a) it is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods; and (b) a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.”
Here an explanation of the difference between a patent defect and a latent defect is necessary in explanation. A patent defect is one that can be easily and readily seen. A latent defect cannot and only becomes apparent, at a later stage, and not at first sight.
Lastly to section 55; section 55 (6) reads: – “Subsection (2) (a) and (b) do not apply to a transaction if the consumer: – (a) has been expressly informed that particular goods were offered in a specific condition; and (b) has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.” This more often than not is the situation when a “voetstoots” clause is part of the contract or where the goods are sold “as is.”
Consumers must therefore be very careful about agreeing to buy vehicles privately that are sold “voetstoots” or “as is”; as they thereby waive their rights to a very large extent; and may also not have the protection of the provisions of Section 55 and 56 of the CPA; although they may still be protected by the CPA if they bought the vehicle from a dealer and may also have the protection of the common law in any event.
As is apparent from the above; the CPA and the common law are complex and enforcing your rights should be attended to properly and professionally.
Please feel free to contact us for any consumer issues you may have either with service providers in terms of the CPA or private sellers in terms of the common law.
Should you have any queries please contact our offices in that regard.
Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail; and we will respond.
The Legal Advice Office Team.