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defective motor vehicle

Your right to a repair, a refund or a replacement of a faulty vehicle and where that right comes from

What are your remedies in law and in particular in terms of the Consumer Protection Act No 68 of 2008 (CPA) and also the common law; if you have bought a vehicle which now has material defects?

At The Legal Advice Office we still get numerous queries from members of the public regarding defects in vehicles which they have recently purchased from a dealership or even from a private individual and where there are clearly material defects in the vehicle or where they have been misled as to the condition of the vehicle or were not told about previous accident damage or other material issues.

In these circumstances, the consumer has the protection of both the common law of contract and also the CPA.

During our series of blogs in December 2018, we intend to look in more detail at this aspect of the law and to try and explain why you have the right to a repair, a refund or a replacement vehicle at the expense of the dealer or seller and where that right comes from.

Firstly in terms of common law, a seller cannot sell you a defective merx (vehicle),

In terms of the CPA; we will have to look at the wording of section 55 and 56 of the CPA in order to do explain your rights in terms of that law.

This will then explain why you have the protection in the CPA and of the three Rs: Repair, Replacement or Refund.

Section 55 of the Consumer Protection Act of 2008 guarantees the Consumer’s rights to safe and good quality goods.

We need to read the actual wording of the section.

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 applies to all motor vehicles as well. You would however still have the protection of the common law.

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 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 obviously applies to all motor vehicles which are bought and sold by a service provider or dealer.

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. If you buy an off road bike; and you say to the salesman at the supplier’s place of business that you intend to use the bike on mountain trails and on the surf line on beaches and you actually ask whether they are suitable for use in these areas and he says that it is; or even simply implies that they are and that this would not be a problem; and the off road bike thereafter falls apart or breaks down as a result of such use; 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 (repair, replace or refund) when you used the off road bike in those circumstances and it was not suitable for that purpose. 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 and in particular to the purchase of your vehicle.

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. In a vehicle, a patent defect would be eg clear accident damage; whereas a latent defect would be accident damage to the motor which cannot simply be seen by external examination.

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 that are sold “voetstoots” or “as is”; as they thereby waive their rights to a very large extent; and may not have the protection of the provisions of Section 55 and 56 of the CPA; although they may still be protected by the common law. This also applies to all vehicle sales.

By the way, a service provider or a dealer cannot sell a vehicle to you voetstoots or “as is”. Although a private person can be provided they honestly disclose ALL known defects at the time of the sale.

In my next blog, I will look at some of the provisions and the first subsections of section 56 (remedies) of the CPA and relate them to motor vehicles.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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