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car dealership problem

Consumers must be very careful about agreeing to buy goods that are sold “voetstoots” or “as is” as they thereby waive their rights to a very large extent.

Yesterday; we had an inquiry from a lady who had bought a second hand 2014 BMW from a second-hand dealer in Gezina, Pretoria.

She bought the car for R 110500.00 in a cash deal on the 26th January 2018 and took delivery on that same day after it had been roadworthied and transferred into her name by the dealer.

For the next two months there were no major issues with the car but on the 27th March 2018 the car broke down on the M3 in Johannesburg and had to be towed into a BMW dealership in Johannesburg for repairs. The quote for repairs to the engine was for R 34500.00 and the diagnostic test showed major wear and tear and also damage to the cylinder head and pistons which had clearly been there for at least the last 6 months.

What were her legal rights?

She would have a claim in terms of the common law if she could show that the dealership was aware of these defects at the time of the sale or should have known about them with due diligence at that time in January 2018,

But she has a far stronger legal right.

The Consumer Protection Act: No 68 of 2008 (CPA): Section 55: Consumer’s rights to safe, good quality goods:

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

It is this section which gives the necessary protection to purchasers and consumers who buy new or second-hand motor vehicles and then find them to be defective in one or other aspect or manner or to be damaged. The consumer’s legal remedy then lies in section 55 and 56 of the CPA.

This relief and remedy allows apply to all other goods that are purchased from a supplier and is not confined just too motor vehicles but applies to all items bought from a supplier.

The heading to this section (ie section 55) 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 at 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.

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.

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 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 contractor where the goods are sold “as is.” Consumers must, therefore, be very careful about agreeing to buy goods 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.

Even if you do not have a remedy in terms of sections 55 and 56 of the CPA; you may well have relief in terms of the common law as suggested above.

Please visit our website at or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

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)

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