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Car Warranty

Besides your common law rights; you may well also have a civil claim against the producer, importer or distributor of that defective motor vehicle.

The Consumer Protection Act No 68 of 2008 (CPA):

Section 56(1):

In our last blog, we had a look at section 55 of the CPA as it relates to the purchase of defective or damaged motor vehicles which have been bought by a consumer from a service provider.

Today; we turn our attention to section 56 of the CPA and we will be looking at this important section over our next three blogs.

Section 56 deals with the implied warranty of quality for all goods.

We start off with section 56 (1) which reads as follows:

 Section 56 is headed: Implied warranty of quality:

 Section 56 (1) states; “In any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated in section 55, except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.”

 One needs to read the section very carefully and understand exactly what it means.

Note that it gives an implied statutory warranty to all consumers in the form of an implied provision that covers the maker, the importer and the retailer of that item. In the case of a motor vehicle, his includes the producer of the model of motor vehicle, the importer of the vehicle and the dealer that sold you the vehicle.

In effect Section 56(1) creates an implied provision that section 55 of the CPA has been fully complied with:

There are some important points to be made here:

Section 56 provides for an “implied provision” (an implied statutory term and condition) in terms of which the producer or importer, the distributor and the retailer each warrant that the goods sold comply with the requirements and standards contemplated in section 55. A breach of the implied provision entitles the consumer to return the goods (within six months from the date of delivery) and demand that the goods be repaired, or replaced or that the price paid to be refunded.

  1. This implied warranty liability extends beyond the boundaries of contractual privity as producers or importers, distributors and retailers all warrant that goods meet the standards contemplated in Section 55. This means:
  2. A. Therefore, that the remedies which are available to a consumer in the event of a failure to comply with section 55 may also be used against parties with whom the consumer has not contracted directly. 
  3. B. Unlike section 61 (liability for damages caused by goods), section 56 does not provide expressly that the liability will be joint and several if more than one member of the supply chain is liable. 
  4. Nothing precludes suppliers from allocating this risk contractually between them through the inclusion of the appropriate indemnities and warranties.
  5. Suppliers would, as a result, be well advised to do so and contract as stated in C above.
  1. The terms “producer”, “importer”, “distributor” and “retailer” are all defined in section 1 of the CPA. “Producer” is defined as a person who “(a) grows, nurtures, harvests, mines, generates, refines, creates, manufactures or otherwise produces the goods within the Republic, or causes any of those things to be done, with the intention of making them available for supply in the ordinary course of business;  or (b) by applying a personal or business name, trademark, trade description or other visual representation on or in relation to the goods, has created or established a reasonable expectation that the person is a person contemplated in paragraph (a)”. This definition therefore not only covers a producer who actually manufactures the goods but also one who makes use of a sub-contractor to manufacture the goods on its behalf. An “importer” is a person “who brings those goods, or causes them to be brought from outside the Republic into the Republic, with the intention of making them available for supply in the ordinary course of business”. A “distributor” is a person who “(a) is supplied with those goods by a producer, importer or other distributors; and (b) in turn, supplies those goods to either another distributor or a retailer in the ordinary course of business.” A distributor is what would be referred to as a middleman. A retailer is a person who “supplies those goods to a consumer”. The retailer is the last link in the supply chain and often the most vulnerable to consumer claims while having the least control over the quality of the goods.

It is clear from this that consumers have a great deal of protection in respect of the quality of their purchased goods and against a number of significant entitle in the product chain.

  1. Section 56(1) is however subject to a significant proviso. The consumer will not be able to rely on the implied warranty “to the extent that” the goods were “altered contrary to the suppliers' specific instructions, or after leaving the control, of the producer or importer, a distributor or retailer, as the case may be” (my emphasis).

This gives rise to two potential defences against a claim brought under s 56(1).

Firstly, the supplier will not be held liable where the goods were altered by the consumer contrary to instructions given by the supplier. This is another application of the defence that the consumer used the goods in an unusual or unreasonable manner.

The second defence is where the consumer or another supplier in the supply chain alters the goods after the goods left the control of the supplier. Given the use of the adjunct “or” instead of “and” this is interpreted as a second defence and not simply as a second requirement for the first defence discussed here.

This means that the supplier could escape liability even where the alteration was not “contrary to instructions”, as long as it took place after the goods left the supplier’s control. The supplier’s liability is only excluded “to the extent that” the alterations were done. This means that the supplier’s liability is only excluded insofar as the breach of the implied warranty is attributable to the alterations. If the breach is still attributable to an unaltered characteristic or a defect unrelated to the alterations a supplier may not escape liability.

It can be seen from the above comments that it is always best to get proper, professional legal advice when trying to interpret or enforce your consumer rights to quality goods and particularly motor vehicles as that is our focus here.

In summary; if you have bought a defective or damaged motor vehicle; besides your common law rights; you may well also have a civil claim against the producer, importer or distributor of that defective motor vehicle.

In my next blog, I will look at Section 56(2) and it's remedied and also relate them again 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 practising attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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www.legaladviceoffice.co.za

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