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defective vehicle lemon

What do you do when the service provider insists on a repair, but then cannot fix it?

So you bought a lemon (a defective motor vehicle) and gave the service provider an opportunity to repair the defects in the vehicle, or they insisted on a repair, but they could not fix it.

 What do you do?

 Very often consumers, when they have an issue with a vehicle that they have bought, take it back to the dealership from whom they bought the vehicle to have them analyse the vehicle for the faults or defects and have it attended to in a repair.

But what does one do if they cannot fix it to your satisfaction?

 Here is an email enquiry from last week:

 “Hugh, I have read both of your recent blogs about “lemons” and “more about lemons”; but I have a slightly different issue. I bought a Toyota Corolla second hand from a dealership in Knysna on the 4th March 2019. Within a month; I started having problems with the vehicle related to its cooling system and electronics. I took it back to the same dealership who examined it and then “fixed” the problems over 3 days in May 2019 and charged me half the cost involved. But the problem now is, that they never fixed the problems; as I am still experiencing the same issues. What can I do? Please advise, as they just tell me that that have fulfilled their legal obligation in terms of the CPA to repair the vehicle”.

This is a common issue and is fundamentally and legally wrong.

Firstly; the choice of a repair, replacement or refund is your choice; not the dealers.

Secondly, they had no right to charge for the repairs, as they were obliged to repair the vehicle at their cost if that was your choice. You are entitled to reclaim that money from the dealer.

Then the further question is what does one do if the repair fails?

This situation is covered by Section 56(3) of the Consumer Protection Act No 68 of 2008 (CPA):

 Failed repairs:

If the consumer elected to have the goods repaired, as opposed to a choice of a replacement or a refund; and the “failure, defect or unsafe feature” has not been repaired properly after a further period of three months or a further failure is discovered, the supplier must either replace the goods or refund the consumer.

The supplier will have the same obligations where a further failure, defect or unsafe feature is discovered within three months from the first repair. It is not clear whether it is the consumer or the supplier who must choose whether to replace or to refund. It has been argued that the election must be made by the consumer, as this is the case in respect of section 56(2), when the first choice of a repair, replacement or refund occurs.

Section 56 (3) places a further time limitation on a supplier’s attempt to repair a defect in goods. In other words, if a consumer demands that a supplier repairs goods in terms of section 56(2) (a) and after three months the repairs either have not been made or have not been made effectively, the consumer is entitled to exercise another remedy and the supplier will not be able to allege that repairs are still being made in an attempt to stop the consumer from rescinding. This will prevent situations where the consumer is trapped in a cycle of repairs.

The ‘further failure’ referred to in this section is presumably a recurrence of the initial failure which was being repaired. If it is another failure altogether the consumer will be able to exercise his or her rights in terms of section 56(2) in any event, and section 56(3) would not be necessary. It is also not a “warranty” on the repairs as this is dealt with separately in section 57. 

A shortcoming here is that the three-month period is entirely arbitrary and may work against consumers in certain instances. There may be instances where a shorter period may be reasonable depending on the nature of the goods, where the goods are essential making repairs urgent or where it will become apparent much sooner that the supplier is unable to make the necessary repairs. The legislature should rather have adopted the formulation used in article 3(3) of the Consumer Sales Directive, which provides that “any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer required the goods.”

This would allow for a more flexible approach than imposing a standard time period. 

The Consumer Tribunal has, on at least one known occasion, assisted the consumer who was out of time by granting a partial refund in terms of section 54 (substandard service delivery) instead. 

This answers the query from our above client.

However one must also always remember that one has rights in terms of the common law, and we always approach these issue both from the point of view of the common law and the CPA. There is a good reason for this as we explain below. The common law relief that you have is underlined by the provisions of Section 56(4) of the CPA; which 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 of section 56 superfluous.

To be clear, this means that the CPA did not change the common law; both remedial schemes can apply to the same set of facts. The overlap between the CPA and the common law is very uncomfortable when it comes to sections 55 and 56 however, and there are instances where the consumer’s common-law rights will be easier to exercise and vice versa.

As we have stated above; we always use both the common law and the CPA for this reason.

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

First, to rescind and set aside the contract in terms of the actio redhibitoria or 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 not been incorporated into the CPA. A consumer may therefore make use of this remedy in addition to the remedies contained in section 56(2). The consumer may also want to rely on both of the aedilitian actions once the six-month period in section 56(2) has lapsed.

There are therefore a number of remedies available to consumers and buyers.

These common law actions, however, are subject to additional requirements which will limit their application in many instances. To rely on these remedies in terms of the common law, the consumer must prove that the defect is significant or “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. 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”. 

By way of example which we have used before: A retailer of seeds sells sealed packets of seeds to a farmer. The retailer’s sales representatives gives 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 Act has the odd effect that a consumer’s claim under the Act is more limited than it would be under the common law. It is presumably for this reason that sections 56(4) and 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 curious that the paragraph only refers to “express” warranties and not also to tacit warranties. This omission has a limited impact however given that there is no reason why a tacit warranty will not apply in any event.

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. 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)

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

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