THE CHOICES OF A REPAIR, REPLACEMENT OR A REFUND
The Consumer Protection Act No 68 of 2008 (CPA).
One of the matters that we, at The Legal Advice Office, specialise in is the topic of defective motor vehicles.
We get many queries at The Legal Advice Office each week from people you want our help regarding the purchase of defective or damaged motor vehicles.
This last week we got a rather cryptic inquiry:
“I have read in one of your blogs of some time back that if I were to buy a defective motor vehicle, or “a lemon” as you referred to it as; that I have the choice of a repair, a replacement, or a refund at the dealer’s expense. Is this true; and if it is; when and how do I go about doing so; as I have definitely bought “a lemon” from a dealership in Boksburg?”
We have previously dealt with this type of query and these issues; and have also looked at the choices a consumer has if he/she purchases a defective of damaged item; especially when related to motor vehicles.
We call this consumer choice “the three R’s” ie the choice is repair, replacement, or a refund.
When it comes to motor vehicles which are damaged or defective; which should you choose?
The first point to make is that it is your choice, as the consumer, and it is NOT up to the dealer to decide what he would like to do. Clearly it would be in his interest to choose to repair the vehicle as that is the most cost effective from his point of view.
We are all aware, by now, of the implied statutory warranty on the quality of goods guaranteed by the Consumer Protection Act No 68 of 2008 (CPA) and more particularly sections 55 & 56 of that Act.
There is still however a lot of confusion about the Consumer’s rights to choose a repair, replacement, or refund in respect of damaged or defective goods as guaranteed by these sections of the Act. This applies particularly to defective motor vehicles.
Damaged or defective goods includes all goods bought and does include all motor vehicles; whether new or second hand; and whether they are cars, bikes, trucks, trailers, farm or industrial vehicles etc.
Section 55 of the CPA deals with the consumer’s rights to quality goods.
This section is backed up by the provisions of section 56 and especially section 56 (2) of the CPA which reads as follows:
“Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty, and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55 (Consumers rights to safe, good quality goods) and the supplier must, at the direction of the consumer, either:
- Repair or replace the failed, unsafe, or defective goods, or
- Refund to the consumer the price paid by the consumer for the goods.”
That seems pretty straight forward; and to a very large extent self-explanatory.
Why then do so many suppliers duck and dive; and attempt to avoid their legal obligations to the consumer and their customers.
The answer to this question is that it is a nuisance to a supplier, and they need to take time out; and incur cost; in repairing, replacing or refunding a consumer for an item that they have already sold to them.
Things were far too comfortable for suppliers before the advent of the CPA as they, in the past, would simply tell us as consumers that it was not their problem once we had taken delivery of an item and paid for it.
One has to remember that the provisions of this Act and these sections do not cover private individuals as sellers; as they are not suppliers or service providers conducting their sale in the ordinary course of business unless, of course, they do so on a part time basis; as sometimes happens. Many suppliers actually try to camouflage their sales as private sales in order to try to avoid the CPA provisions. In short; the act does not cover completely genuine private sales. Your remedies in the case of private sales lie in the common law and more particularly the common law of contract.
One has to look at the definition of “a consumer” and “a supplier”; in order to get confirmation that private sales are not covered by these provisions of the Consumer Protection Act.”
Section 1 is the definition section of the CPA.
In section 1;
“a consumer’ is defined in great detail. It will suffice for our purposes here to simply quote from part of the full definition: “
A consumer means a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business.” The section then goes on to give a more comprehensive detailed definition which it is not necessary to dissect here but the definition of a consumer is very wide and includes just about anyone buying an item from someone else who is conducting a business enterprise in selling amongst other things that particular item/items.
One also has to look at the definition of “a supplier” for clarity here.
Section 1 also defines “a supplier” which means:
“A person who markets any goods or services.”
This is also a very wide definition.
As a consequence, the CPA covers both goods and services provided by a supplier to a consumer.
It does not apply to private sales as although all buyers are consumers as defined in the Act; the sellers however are not suppliers; as they do not sell their items in the ordinary course of a business enterprise; but only occasionally on a once off basis; if they are genuine private sellers. Clearly there may be exceptions to this rule; eg someone who is not a dealer but runs a business selling second hand cars in his spare time. He may well then be a supplier as defined in the Act although not a registered car dealer.
The CPA applies to all unsafe, damaged, and defective goods; provided they are bought from a supplier acting in the ordinary course of his business.
As a consumer of both goods and services our section 56(2) choice, as consumers, of “repair, refund or replace” in respect of damaged or defective goods is in addition to; and over and above the manufacturer’s warranty; and also in addition to, and over and above, any common law remedies that we may have; for example; where latent defects were deliberately not disclosed to us by a supplier.
You, as a consumer could very well then have three separate potential claims available to you in a dispute with a supplier.
These claims could be in terms of the CPA, a common law remedy and/or in terms of a manufacturer’s warranty; provided that that dispute relates to unsafe, damaged, or defective goods or services.
It is entirely up to you as a consumer to decide whether you want a repair, a replacement or a refund and your choice will be guided by many personal factors.
It is however important to note that the defect in the vehicle must be a “material defect” and cannot be something small, insignificant, or irrelevant.
It is part of our job to decide on whether or not a defect or defects are material defects.
Please visit our website at www.legaladviceoffice.co.za or send us an email to [email protected] and we will respond to your legal queries within 48 hours.
About our author:
Hugh Pollard (Legal Consultant) has a BA LLB and 43 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 21 years as a Legal Consultant.
082-0932304 (Hugh’s Cell Number)
