Over the past few weeks and months we have had many queries at The Legal Advice Office from clients and consumers who have bought cars from both new and second hand car dealers; and who are a short while later are discovering various serious defects in those vehicles.
This clearly is a problem and the dealers, by and large, do not abide by the law or the CPA or otherwise seek to interpret that Act or portions of that Act in a manner which is beneficial to them and not the consumer customer.
Let us get one thing very straight. All of us, as consumers and customers, should be aware of this fact. The Consumer Protect Act, Act No 68 of 2008 (CPA); which became law at midnight on the 31st March 2011 has radically shifted the balance of power from the supplier to the customer when it comes to the question of defective, unsuitable and damaged goods.
Since this Act came into effect; consumers have had the choice of remedy if the item they purchase breaks, is defective or stops working as it was intended to; but this choice and your action must take place within six (6) months of the date of purchase or within 3 months of any subsequent repair carried out by the seller supplier.
You no longer have to accept the supplier’s first choice of a repair to the item; and the supplier or service provider cannot dictate to you what you should choose. It is your choice and you decide whether YOU want a REFUND, a REPLACEMENT item or a REPAIR. Do NOT let the supplier decide for you. It is your choice in terms of the CPA.
However be careful in exercising this choice as it really is a formal legal process and you need proper, professional advice in exercising that choice.
This new state of affairs is a massive boon for consumers; and retailers are understandably reeling from the consequences of the Act; and try to avoid liability for replacing or refunding a customer as that is a lot more expensive option for them as opposed to simply repairing the item in question.
It stands to reason therefore that one of the industries with the most to lose is this regard is the motor industry and motor trade generally, given the high price of its products and this is precisely why the industry has pretty much decided that the sections of the Consumer Protection Act which cover defective goods (mainly sections 55 and 56) don’t really apply to them and do their best in any given set of circumstances to duck and dive their way out of responsibility to their customers and almost invariable try and get the customer to agree to a repair without ever explaining to the consumer their legal rights in terms of the CPA. We literally deal with these situations on a daily basis.
We have also had to deal with motor vehicle dealers who tell us flat out that the CPA does not apply to them; and even their attorneys have contacted us and written e-mails to us advising us that the provisions of the CPA do not apply to their clients; as they are motor car dealers and not suppliers. That is absolute rubbish!
The Act does apply to all motor vehicle manufacturers and dealers and there is no question about that. It is a fact.
Remember that the cardinal rule in the event of the purchase or a defective or damaged vehicle is that it is your choice.
Thereafter use a professional to enforce your rights and a remedy to a repair, refund or replacement.
The CPA in Part B also deals will the purpose, policy and application of the Act and sets out in some detail the whole purpose and policy of the Act and the rationale for it having been brought into existence in the first place. The purpose of this Act it goes on to say in section 3 is “to promote and advance the social and economic welfare of consumers in South Africa by…” and then it sets out the framework and purpose in more detail. So its primary purpose is just that: to protect us as consumers from bad business practices which are sometimes provided to us by service providers.
The Legal Advice Office Team.