As we know by now The Consumer Protection Act, No 68 of 2008; (CPA) came into effect at midnight on the 31st March 2011.
In our last blog we looked specifically at section 56(1) of the CPA.
pAll of these blogs apply to the sale of all goods; but we are concentrating on these sections of the CPA as they apply to the purchase and sale of motor vehicles in particular.
We now turn our attention to Section 56 (2) of the Consumer Protection Act, No 68 of 2008 which reads as follows:
“Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty, and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55 (Consumers rights to safe, good quality goods) and the supplier must, at the direction of the consumer, either:
- Repair or replace the failed, unsafe or defective goods, or
- Refund to the consumer the price paid by the consumer for the goods.”
This subsection must clearly be read; firstly in the context of section 55 of the CPA to which it specifically refers in its text and which deals with the consumers rights to sale, good quality goods. Secondly; it must also be read in the context of section 56 (1) which creates the statutory implied warranty and which we dealt with in our last blog.
In the light of both these above contexts; section 56 (2) therefore creates the legal remedy for the consumer when neither section 55, nor section 56 (1), have been complied with.
It states that the consumer may in the event of both of these events then “within six months after the delivery of any goods…..” choose a repair, replacement of a refund.
This is easier said than done and you will need proper professional legal assistance to enforce this right.
The subsection also states that you may do so “without penalty, and at the supplier’s risk and expense…” In other words there should be no penalty applied to the consumer and the choice of a repair, replacement or a refund should be entirely at the instance of the consumer and at the expense and risk of the supplier. In the context of motor vehicles this means the dealer (supplier); but it could, depending on the facts, also include a manufacturer, importer, distributor or retailer.
Once again you will need proper, professional legal advice on who you are to hold liable depending on the facts of your particular matter. The reason for this is that you need a lawyer to advise you both on the validity of your claim and against whom it lies and also to assist you to follow the correct legal process in enforcing your legal rights. Should you attempt to do so on your own you are quite likely to negatively affect your claim and perhaps even negate your full consumer rights.
The above is also true in respect of the necessary advice to establish factually and legally whether the goods or vehicle that you have bought “fail to satisfy the requirements and standards contemplated in section 55 (Consumers rights to safe, good quality goods). You need proper and professional legal advice to establish this as a fact and claim accordingly.
The subsection then goes on to state “and the supplier must, at the direction of the consumer, either: Repair or replace the failed, unsafe or defective goods, or refund to the consumer the price paid by the consumer for the goods.”
It is the consumer choice in respect of the remedy he/she seeks ie repair, replace or refund.
You need to choose either a repair at the supplier or dealer’s expense; or a replacement or a refund of the full purchase price.
Again it is advisable to get proper and professional advice before e exercising that choice as a number of variable may play a role in making the best decision on the facts of your particular matter and personal situation.
In our next blog we will look at section 56 (3)
If you have a query in this regard it is advisable to get proper professional legal assistance.
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.
Next time; we will deal with section 56(2) of the CPA.
On a different note on motor vehicle sales; please feel free to contact us for any consumer issues you may have either with service providers of financiers 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.