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 The case may be the condition stipulated by the producer or importer, distributor or retailer

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

What are your rights in terms of the Common Law read together with the CPA? Section 56(4).

We have been looking at section 56 of the CPA and in our last blog dealt with section 56(3) and repairs and your rights after a repair.

We now turn our attention to section 56 (4) which deals with your residual common law rights.

Section 56 (4) of the Consumer Protection Act, No 68 of 2008, reads as follows:

“(4) The implied warranty imposed by subsection (1), and the right to return goods set out in subsection (2), are each in addition to:

                (a) Any other implied warranty or condition imposed by the common law, this Act or any other public regulation; and

                (b) Any express warranty or condition stipulated by the producer or importer, distributor or retailer, as the case may be.”

 Section 56 (4) therefore deals with residual common law claims:

 Section 56(4) (a) provides that the remedies given to the consumer in terms of section 56(2) are in addition to “any other implied warranty or condition imposed by the common law, this Act or any other public regulation”.

Section 2(10) of the CPA also contains a general “savings clause” which provides that no provision of the Act may be interpreted to the exclusion of any rights which the consumer may have under the common law, making this subsection superfluous to some extent; although it could be argued that it simply strengthens section 2 (10) of the CPA. To be clear, this means that the CPA did not change the common law; and both remedial schemes can apply to the same set of facts. The overlap between the CPA and the common law is sometimes very uncomfortable when it comes to sections 55 and 56 and there are instances where the consumer’s common-law rights will be easier to exercise and vice versa.

The principal remedies which are preserved under these two sections are the consumer’s rights in terms of the aedilitian actions:

  • First to rescind the contract in terms of the actio redhibitoria 
  • Second, the right to demand a reduction of the purchase price under the actio quanti minoris. 

While section 56(2) (b) bears some resemblance to the actio redhibitoria, the actio quanti minoris has however not been incorporated in the CPA. A consumer may therefore make use of this remedy in addition to the remedies contained in section 56(2) and this is what I tend to do when I am dealing with these issues in both Interventions and mediations for my clients. The consumer may also want to rely on both of the aedilitian actions once the six-month period in section 56(2) has lapsed; and this again is a tactic I utilise a lot in those cases where the six month period has lapsed and I want to broaden the base of my clients claims against the service provider.

These actions are however subject to additional requirements which will limit their application in many instances. To rely on these remedies, the consumer must prove that the defect is significant and material, that the defect is latent, that the consumer was not aware of it; and that the defect existed at the time at which the contract was concluded. 

The consumer will not always be able to rescind the contract as the actio redhibitoria will only be available if the defect is so serious that the buyer and a reasonable person in the position of the buyer would not have bought the goods had he been aware of it. If this is the case the buyer can choose between the two actions or use them in the alternative in legal processes. Where the defect is not sufficiently serious, the buyer can only ask for a price reduction. 

Section 56(4) (a) also enables the consumer to bring a residual claim for consequential loss.

The point of departure under the common law is that a supplier who does not know of the defect in the goods is not liable for consequential loss in the absence of an express warranty unless the supplier is the manufacturer or is a trader who “publicly professes to have attributes of skill and expert knowledge in relation to the specific type of goods”. Whether a supplier falls within one of these two categories will be a factual enquiry. The type of factors which are taken into account are the experience (measured in relation to the time spent trading in a particular industry or product) of the seller and whether the seller provides expert advice in relation to the product sold. 

It is conceivable that a supplier who may escape liability under section 61(4) (c) will still be liable under the common law. Section 61(4) (c) provides that a retailer or distributor will not be liable if it could not reasonably have discovered the defect “having regard to that person’s role in marketing the goods to the consumer”.

Case Study

An example will best illustrate this point eg: A retailer of seeds sells sealed packets of seeds to a farmer. The retailer’s sales representatives give advice on which seeds to buy and the quantities which would be needed. The farmer’s crop fails as a result of a latent defect in the seeds. In terms of section 61(4) (c) the retailer can argue that it was simply a retailer and could not have discovered the defect as the seeds are already packaged when they pass through the retailer’s hands.

Under the common law the retailer would be worse off as it “publicly professes to have attributes of skill and expert knowledge in relation to the specific type of goods”. Thus it will be liable for damages. The inclusion of section 61(4) (c) in the CPA has the odd effect that a consumer’s claim under the CPA is more limited than it would be under the common law. It is presumably for this reason that subsection 56(4) and section 2(10) were included, making it possible for consumers to rely on the common law in cases where they would not be able to claim successfully under section 61.

Section 56(4) (b) provides that section 56(1) and the right to return goods is also in addition to

“any express warranty or condition stipulated by the producer or importer, distributor or retailer”.

This means that the supplier is free to extend a more generous warranty to the consumer. Any warranty which limits the consumer’s rights in terms of section 56 will be void. It is however curious that the paragraph only refers to “express” warranties and not also to tacit or implied warranties. This omission has a limited impact given that there is no reason why an implied or tacit warranty will not apply in any event.

The interrelationships between a consumers rights in terms of the CPA and those in terms of the common law are complex and you should not try to deal with these matters on your own. You need an expert in your corner to assist you in deciding on your remedy depending on all the facts of your case.

This finalises my discussion on section 56 of the CPA.

Next time I intend to look at section 14 of the CPA due to a number of requests in this regard..

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About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 44 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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