The Consumer Protection Act, No 68 of 2008; (CPA); which, as mentioned in our last blog, came into effect at midnight on the 31st March 2011 has changed consumer law in the RSA irrevocably.
There are a number of innovative consumer protection mechanisms in the CPA which are revolutionary in nature.
One of the most important is that contained in section 55 of the CPA.
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. It is important to note this exclusion as we often get queries regarding goods bought on auction. The CPA does not apply to such sales; only the common law processes.
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 statutory warranty set out in section 56 of the CPA. This subsection of section 55 is therefore very important and wide-ranging.
We will deal with section 56 in another 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.”
An example will help to clarify this subsection and how it works.
If you buy a pair of expensive hiking boots; and you say to the salesman at the supplier’s place of business that you intend to hike in these boots through water and snow on a specific route you intend to take with your friends and you actually ask whether they are suitable for use in water and he says they are; or even simply implies that that would not be a problem; and the boots thereafter fall apart as a result of the water damage; 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 boots in those circumstances. Essentially you relied on and have the right to rely on the supplier’s expert advice and have an additional warranty as a result.
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.
Sections 55 (3) 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 goods 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 CP Act; although they may still be protected by the CPA if they bought the goods from a service provider and may also have the protection of the common law I 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 at the above email addresses 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.