The Consumer Protection Act No 68 of 2008 (CPA) came into operation at midnight on the 31st March 2011; and has been the law since that date.
It changed Consumer Law irrevocably and the entire intention of the Act is to protect Consumers against unfair business practices which had become rife.
We still get a lot of enquiries from clients and consumers who feel that they have been ripped off after having bought a motor vehicle.
A recent example was of a client who had bought a second hand car from a dealer in Pretoria and it turned out to be a real lemon! The dealer refused point blank to accept their responsibilities in terms of the CPA and we had to intervene for the client to get a full refund.
What are our rights and how exactly does the CPA protect a buyer of both a new and a second hand car?
The CPA has some far reaching consequences both for the buyer and the service provider, or dealer, in the used and second hand vehicle market; as also for new vehicle sales.
For most of us a motor car is our second most expensive item after our homes and buying a car can be an emotional and stressful experience irrespective of your budget.
The CPA was specifically brought into being to protect consumers.
Buying a second hand car has long been associated with less than honest dealings in the past and the second hand car dealer has been the butt of many a joke dealing with dishonest practices and with the “voetstoots” or “as is” clause used as a fail- safe to protect an unscrupulous sales person or seller from any potential comeback.
Now things have changed as the CPA states that an official car dealer may not now sell a vehicle voetstoots, irrespective of whether they disclose what’s wrong with it or not. A vehicle can be sold voetstoots or “as is” only in a private sale; but that still does not mean that the buyer is left high and dry. In order for a car to be validly sold voetstoots; a full list of all known defects has to be provided to the buyer by the seller. You as the buyer would then in the sale agreement have to sign and acknowledge the presence of those defects. Any defect outside that list is not covered by the voetstoots clause. If any defects are discovered with six (6) months of the sale you have the right to insist on repair, replacement or a refund. This is your choice as the buyer.
This clearly does not mean that you can return the vehicle because it doesn’t smell like a new car or some other silly/immaterial excuse/ reason. There are clear rules on when you can return a vehicle, the most critical being when there a “material defect, failure or hazard that is not due to any alterations you have made to the vehicle after buying it.
The best defence you have against purchasing a potential rotten apple is to arm yourself with the correct information. If you are in the market for a used vehicle; make sure that you know your CPA rights and then to enforce those rights.
This information is equally applicable to the new car market; but we experience less complaints with new vehicle purchase for obvious reasons and also because they are often sold with warranties and consumers rely on these warranties when defects or damage occurs. They do not however have to do so as the CPA is the law and a lot stronger than a contractual warranty.
This is particularly true of the implied warranty and the provisions of section 55 and 56 of the CPA.
A word of warning when buying a car. There are any number of identical vehicles to choose from on the market at any one time; and, if a deal looks too good to be true, it probably is! So choose carefully and use well known dealers and brands.
We specialise in consumer law, consumer protection and the enforcement of consumers rights in terms of the CPA; and these rights must be enforced properly, legally and professionally to be effective.
Should you 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.