It has been part of our statutory law since that date.

In our last blog we looked specifically at section 56(3) of the CPA.

pAll of these blogs of ours apply to the sale of all goods; but we are concentrating on these sections of the CPA as they specifically apply to the purchase and sale of motor vehicles as that appears to be the main source of enquiries that we receive at The Legal Advice Office in relation to the CPA.

Finally; we have section 56(4) on the implied warranty which is self-explanatory and states:

“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.”

This means that the implied warranty created by section 56(1) is over and above any other statutory warranty or manufactures guarantee and is in addition to any such secondary warranty.

In our view the statutory warranty in section 56(1) trumps all other warranties either based in common law or in contract entered into between the service provider and the consumer.

This section states that the implied warranty (section 56(1)) AND the consumers right to return damaged or defective goods (section 56(2)) are BOTH IN ADDITION TO any other IMPLIED warranty or condition EITHER based in COMMON law or in CONTRACT entered into between the service provider and the consumer. (Our emphasis.)

This is important because it creates two tiers of warranty in respect of the sale of goods to a consumer by a service provider.

The first tier of your guarantee is the written warranty which you as a consumer may have entered into with the dealership when you purchased the vehicle, or other item; which is your written contractual warranty. To this must be added your common law warranty to be sold a vehicle which is not damages or defective and ; if it is in any way compromised, the common law duty on the seller to fully disclose that damage or defect to you as the purchaser.

And the second tier of your guarantee is the very much stronger, in our view, statutory warranty created by section 56 of the CPA as stated in subsection (1) to (4) of section 56 read together with section 55 of the CPA.

What this means in practice is that if you buy a vehicle from a service provider you have the protection of your written contractual warranty; if you entered into such a contract with the dealership; you can also rely on the common law contractual implied warranty referred to above AND you also have the implied statutory warranty which is your guarantee in terms of the STATUTORY LAW.

This puts the consumer in a very strong position in the event of your buying a damaged or defective vehicle from a service provider or dealership.

Again it is always advisable to get proper and professional advice before  exercising your choice, as a consumer to a repair or a replacement or a refund for as we have stated before there may well be a number of variables which will play a role in making the best decision on the facts in your particular circumstances.

This concludes our blogs on section 56 of the CPA.

On a separate note on specifically motor vehicle sales; please feel free to contact us for any consumer issues you may have either with service providers of financiers in terms of the CPA or private sellers in terms of the common law.

If you have a query in this regard it is advisable to get proper professional legal assistance.

Please visit our website at www.legaladviceoffice.co.za for additional information.

Our email addresses are: info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Thank you.

The Legal Advice Office Team.

In our last blog we looked specifically at section 56(2) of the CPA. 

pAll of these blogs apply to the sale of all and any goods; but we are concentrating on these sections of the CPA; as they apply specifically to the purchase and sale of motor vehicles in particular. We are doing this as a result of all of your queries.

We now turn to the next subsection of section 56 ie section 56(3):

Section 56 (3) of the Consumer Protection Act, No 68 of 2008 reads as follows:

“If a supplier repairs any particular goods or any component of any such goods, and within three months after the repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must: – (a) replace the goods; or (b) refund to the consumer the price paid by the consumer for the goods.”

This subsection is again very wide; and again gives you an implied warranty on the repaired goods for a further 3 months; after the repair of an item or a component of an item; not only in respect of the repair for that particular item or component itself; but the subsection also extends it further to include any other defect that may arise or come to your notice within that same 3 month period. In other words in the case of a repair by a supplier; the implied statutory warranty is extended for a further 3 months from the date of the repair.

It is important to note that this extension of the implied warranty on goods only applies in the event of a repair and does not apply should your first choice has been a refund ( for obvious reasons) or for the replacement of an item. The CPA is silent on whether the replacement item is also subject to the implied warranty created by Section 55 and 56 of the Consumer Protection Act. We would argue that it is; because of the very wide terminology used by the legislature in section 56(2) of the Act.

It is important to note the actual meaning of every phrase and word in the CPA and to apply the ordinary literal meaning to those words and phrases.

In particular note the following:

“If a supplier repairs…..goods of any component….. and within 3 months after the repair….the failure, defect or unsafe feature has not been remedied….. or a further failure, defect or unsafe feature is discovered….. the supplier must (a) replace the goods… or (b) refund to the customer the price paid…..”

Again it is always advisable to get proper and professional legal advice and assistance before exercising your choice of remedy as a number of factual variables may play a role in your making the best decision on the facts for your particular matter and in your personal situation.

If you have a query in this regard; as we have repeatedly stated; it is advisable to get proper professional legal advice and assistance.

As is apparent from the above; the CPA and the common law are complex and enforcing your rights should be attended to promptly, properly and professionally.

Next time; we will deal with section 56 (4) of the CPA.

On a different note on motor vehicle sales; please feel free to contact us for any consumer issues you may have either with service providers of financiers in terms of the CPA or private sellers in terms of the common law.

Please visit our website which is at www.legaladviceoffice.co.za and our email addresses are: info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail; and we will respond.

Thank you.

The Legal Advice Office Team.

In our last blog we looked specifically at section 56(1) of the CPA.

pAll of these blogs apply to the sale of all goods; but we are concentrating on these sections of the CPA as they apply to the purchase and sale of motor vehicles in particular.

We now turn our attention to Section 56 (2) of the Consumer Protection Act, No 68 of 2008 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:

1. Repair or replace the failed, unsafe or defective goods, or
2. Refund to the consumer the price paid by the consumer for the goods.”

This subsection must clearly be read; firstly in the context of section 55 of the CPA to which it specifically refers in its text and which deals with the consumers rights to sale, good quality goods. Secondly; it must also be read in the context of section 56 (1) which creates the statutory implied warranty and which we dealt with in our last blog.

In the light of both these above contexts; section 56 (2) therefore creates the legal remedy for the consumer when neither section 55, nor section 56 (1), have been complied with.

It states that the consumer may in the event of both of these events then “within six months after the delivery of any goods…..” choose a repair, replacement of a refund.

This is easier said than done and you will need proper professional legal assistance to enforce this right.

The subsection also states that you may do so “without penalty, and at the supplier’s risk and expense…” In other words there should be no penalty applied to the consumer and the choice of a repair, replacement or a refund should be entirely at the instance of the consumer and at the expense and risk of the supplier. In the context of motor vehicles this means the dealer (supplier); but it could, depending on the facts, also include a manufacturer, importer, distributor or retailer.

Once again you will need proper, professional legal advice on who you are to hold liable depending on the facts of your particular matter. The reason for this is that you need a lawyer to advise you both on the validity of your claim and against whom it lies and also to assist you to follow the correct legal process in enforcing your legal rights. Should you attempt to do so on your own you are quite likely to negatively affect your claim and perhaps even negate your full consumer rights.

The above is also true in respect of the necessary advice to establish factually and legally whether the goods or vehicle that you have bought “fail to satisfy the requirements and standards contemplated in section 55 (Consumers rights to safe, good quality goods). You need proper and professional legal advice to establish this as a fact and claim accordingly.

The subsection then goes on to state “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.”

It is the consumer choice in respect of the remedy he/she seeks ie repair, replace or refund.

You need to choose either a repair at the supplier or dealer’s expense; or a replacement or a refund of the full purchase price.

Again it is advisable to get proper and professional advice before e exercising that choice as a number of variable may play a role in making the best decision on the facts of your particular matter and personal situation.

In our next blog we will look at section 56 (3)

If you have a query in this regard it is advisable to get proper professional legal assistance.

As is apparent from the above; the CPA and the common law are complex and enforcing your rights should be attended to properly and professionally.

Next time; we will deal with section 56(2) of the CPA.

On a different note on motor vehicle sales; please feel free to contact us for any consumer issues you may have either with service providers of financiers in terms of the CPA or private sellers in terms of the common law.

Our website is at www.legaladviceoffice.co.za and our email addresses are: info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Should you have any queries please contact our offices in that regard.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail; and we will respond.

Thank you.

The Legal Advice Office Team.

As promised we now look at Motor Vehicles and section 56 of the CPA and how this section of the CPA effects the purchase and sale of all motor vehicles that are bought by consumers from motor car dealerships.

Again we emphasise that the CPA has a number of innovative consumer protection mechanisms; which are revolutionary in nature; and which effect the purchase and sale of motor vehicles by consumers; which are everyday transactions and involve, consumers, service providers (dealers) and very often also banks or financial institutions as they are often consumer financiers.

Again we reiterate that the CPA covers both the supply of goods and the provision of services.

One of the most important provisions of the CPA is that contained in section 56 of the CPA.

How does this affect the sale of motor vehicles in particular?

Section 56 of the Consumer Protection Act of 2008 guarantees the Consumer’s rights to a statutory implied legislative warranty.

The heading to this section is “Implied warranty of quality” and it has four subsections.

We intend to look at each of these subsections.

Section 56(1) states that: “ 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 having left the control of the producer or importer, a distributor or the retailer, as the case may be.”

This is the subsection of the CPA which creates the consumers statutory implied warranty.

The wording of the subsection is important.

It states quite clearly that the implied warranty applies “to any transaction or agreement pertaining to the supply of goods……”

The warranty applies in favour of the consumer against “the producer or importer, the distributor and the retailer……”

It also states that each of the above “warrant that the goods comply with the requirements and standards contemplated by section 55……:

But there is a proviso:

They are all subject to the warranty; “except to the extent that those goods have been altered contrary to the instructions…” of any of these entities. So if a consumer acts contrary to instructions from an importer of goods or a distributor or retailer of such goods the warranty in terms of this subsection will fall away.

It will also fall away after leaving “the control of the producer or importer, a distributor or the retailer…..” The implied warranty therefore cease to apply to that entity once it leaves “their control.”

This situation would then be the subject of both a legal and a factual interpretation as to whether or not the article in question (and in this blog we are specifically dealing with motor vehicles) has in fact “left their control; and this enquiry will be subject to the facts of each individual case.

It is for this latter reason that the facts of each individual case are important as to whether the statutory implied warranty applies or not.

If you have a query in this regard it is advisable to get proper professional legal assistance.

As is apparent from the above; the CPA and the common law are complex and enforcing your rights should be attended to properly and professionally.

Next time; we will deal with section 56(2) of the CPA.

On a different note on motor vehicle sales; please feel free to contact us for any consumer issues you may have either with service providers of financiers in terms of the CPA or private sellers in terms of the common law.

Our website is at www.legaladviceoffice.co.za and our email addresses are: info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Should you have any queries please contact our offices in that regard.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail; and we will respond.

Thank you.

The Legal Advice Office Team.

We concentrate on this piece of legislation in our various blogs on this website; and in particular on how the CPA impacts on our everyday life.

One of the issues that comes up on a regular basis is the question of how the CPA impacts on the purchase and sale of motor vehicles.

There are a number of innovative consumer protection mechanisms in the CPA; which are revolutionary in nature; and which effect the purchase and sale of motor vehicles by consumers; which are transactions which take place each and every day of the week throughout the country; and involve, consumers, service providers (dealers) and very often also banks or financial institutions as they are often consumer financiers.

The CPA covers both the supply of goods and the provision of services.

One of the most important provisions of the CPA is that contained in section 55 of the CPA.

How does this affect the sale of motor vehicles in particular?

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

The heading to this section 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 on 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.

This clearly would apply to all cars and vehicles bought either at an auction or at a sale in execution which usually is in the form of an auction anyway. In other words; if you bought a vehicle at an auction or a sale in execution you do NOT have the protection of section 55 of the CPA; although you may still have a common law remedy depending on the facts.

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 subsection 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 and applies to the purchase of all motor vehicles; whether bought brand new or second hand.

We will deal with section 56 and motor vehicles in our next blog.

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.”

This clearly would also apply to all vehicles which are bought either brand new or again second hand.

An example will help to clarify this.

If you buy a second hand car; and you say to the salesman at the supplier’s place of business that you intend to use this car off road and you actually ask whether it will  be suitable for off road purposes and he says it will and can be used off road; or even simply implies that that would not be a problem; and the car thereafter exhibits defects as a result of its use off road; 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 vehicle in those circumstances. This is perhaps an extreme example but you essentially you relied on and have the right to rely on the supplier’s expert advice; and have an additional warranty as a result in terms of this subsection of section 55.

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; and in particular to the purchase of your vehicle.

Sections 55 (5) 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 contract or where the goods are sold “as is.”

Consumers must therefore be very careful about agreeing to buy vehicles privately that are sold “voetstoots” or “as is”; as they thereby waive their rights to a very large extent; and may also not have the protection of the provisions of Section 55 and 56 of the CPA; although they may still be protected by the CPA if they bought the vehicle from a dealer and may also have the protection of the common law in any event.

As is apparent from the above; the CPA and the common law are complex and enforcing your rights should be attended to properly and professionally.

Please feel free to contact us for any consumer issues you may have either with service providers in terms of the CPA or private sellers in terms of the common law.

Our website is at www.legaladviceoffice.co.za and our email addresses are: info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Should you have any queries please contact our offices in that regard.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail; and we will respond.

Thank you.

The Legal Advice Office Team.

It has changed consumer law in the RSA in many important respects.

It is also an extraordinary piece of legislation protecting consumers from all sorts of previously bad business practices.

We, at The Legal Advice Office, get a lot of enquiries from clients and consumers who feel that they have been taken for a ride by dealerships especially when it comes to the poor quality of motor vehicles that they have purchased from those dealerships.

This Act of Parliament (CPA) is the law and applies to both new and second hand vehicles.

A recent example of such a situation was of a client who had bought a second hand car from a dealer in Pretoria and it turned out to be a real problem vehicle.

What are your rights and how exactly does the CPA protect a buyer of both a new and a second hand car?

The CPA which came into operation, as stated above, at the beginning of April 2011 has some far reaching implications for the buyers of both new and second hand vehicles.

For most of us; a motor car is our second most expensive item after our homes and buying a car can be an emotional and stressful experience irrespective of your budget.

The CPA was specifically brought into being to protect consumers.

Buying a second hand car has long been associated with less than honest dealings, with the “voetstoots” or “as is” clause used as a fail- safe to previously protect an unscrupulous sales person, dealership or seller from any potential comeback.

Now things have changed as the CPA states that an official car dealer may not now sell a vehicle, new or second hand, “ voetstoots” or “as is”, irrespective of whether they disclose what’s wrong with it or not.

Nonetheless we often see these clauses in dealership sales documentation.

A vehicle can be sold voetstoots only in a private sale; but that still does not mean that the buyer is left high and dry.

In order for a car to be validly sold “voetstoots’ by a private seller; a full list of all known defects has to be provided to the buyer by the seller.

You as the buyer would then in the sale agreement have to sign and acknowledge the presence of those defects. Any defect outside that list is not covered by the “voetstoots” clause.

If, when buying a vehicle from a dealership, any defects are discovered within six (6) months of the sale you have the right to insist on repair, replacement or a refund.

This is your choice as the buyer. The dealer has no choice in the matter.

This clearly does not mean that you can return the vehicle because it doesn’t smell like a new car or some other silly/immaterial excuse/ reason.

There are clear rules on when you can return a vehicle, the most critical being when there a “material defect, failure or hazard that is not due to any alterations you have made to the vehicle after buying it.

The best defence you have against purchasing a potential lemon is to arm yourself with the correct information. If you are in the market for a used vehicle; make sure that you know your CPA rights and then to enforce those rights.

A word of warning when buying a car. There are any number of identical vehicles to choose from on the market at any one time; and, if a deal looks too good to be true, it probably is!

The process of exercising your rights to a repair, replacement or refund is a formal legal process and should be dealt with properly and professionally.

The same intervention procedures apply to the purchase of all major consumer items in addition to motor vehicles.

You would be strongly advised to contact The Legal Advice Office to attend to this intervention process for you and not to attempt to do so on your own and you do not normally have the experience or expert knowledge to do so.

If you have experienced difficulties with buying a new or used car in the last six months; contact The Legal Advice Office at www.legaladviceoffice.co.za or at one of our email addresses; either info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Should you wish to comment on this or any other legal topic; just send us an e-mail; and we will respond.

Thank you.

The Legal Advice Office Team.

The voetstoots clause is a clause in an agreement that expressly states that the buyer of a vehicle or in fact any item sold; is sold voetstoots or “as is”.

In other words that you buy the vehicle or item as you see it without any guarantee or warranty; and the risk in the vehicle or item is at the entire risk of the purchaser from the date of sale.

There is another misconception and that is that the voetstoots clause is no longer valid and no longer has any affect in SA Law. This is not the case.

A voetstoots clause is binding between a seller and a purchaser in normal circumstances; if that is a condition of their agreement of sale.

The seller must however disclose fully to the buyer all the defects and damage to the vehicle which he is aware of at the time of the sale.

It is advisable to include a clause in the sales document in which those defects are expressly set out so that here is little doubt as to exactly what defects and damage was discussed and disclosed at the time of the sale of the vehicle.

Generally speaking; a voetstoots clause in a private sale of a motor vehicle is binding on the parties to the transaction; provided there has been full disclosure by the seller.

If the seller withholds known defects or damage from the purchaser and these later come to light; the seller cannot rely on the protection of the voetstoots clause to avoid liability for damages to the purchaser or perhaps even a legal right in favour of the purchaser to cancel the entire sale and to claim both the purchase price and his actual damages back from the seller.

When it comes to the purchase and sale of a vehicle from a dealer however the voetstoots clause which is a common law protection is subject to the limitation of the Act and the provisions of the CPA.

As we have previously discussed; the CPA protects the consumer and this protection includes a statutory implied warranty for a period of 6 months after the date of sale which can be extended by a further period of up to a further 3 months, if the dealership carries out a repair on the car at your request. This is an extended implied statutory warranty.

These warranties are in terms of the Act itself and override all other written and common law warranties.

Should you have experienced a problem with a vehicle that you might have bought recently; whether privately or from a dealership; and you are experiencing problems with the vehicle; you are invited to send us an email with your queries.

Please also look at our website www.legaladviceoffice.co.za for further information.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail to info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za and we will respond as soon as we can.

Thank you.

The Legal Advice Office Team.

Obviously; you first take the issue up with the dealership from whom you bought the car.

The CPA protects you and this includes a statutory implied warranty for a period of 6 months after the date of sale which can be extended by a further period of up to a further 3 months, if the dealership carries out a repair on the car at your request. This is an extended implied statutory warranty.

These warranties are in terms of the Act itself and override all other written warranties.

But what do you do if the dealership refuses to cooperate or tells you that you bought the car “voetstoots” or “as is”; and they are not prepared to assist you in any way at all; or sometimes ask you to pay for a proportion of the repair costs?

The first rule is that you must at least make an attempt to mediate a solution with the dealership that you bought the car from. You should exhaust all internal processes at first instance.

You must remember that you only have a claim against that dealership; although you may also have a claim against the manufacturer or distributor in terms of the CPA. These latter claims are however claims that may well be limited by that Act.

If the defect or damage to the vehicle is material; and not due to your fault; and manifests itself within the first 6 months of the date of purchase; the consumer has the choice of either a repair or a replacement or a refund, at the dealers expense.

This is a statutory legal claim you will make against the dealer in terms of the CPA and must be dealt with properly, professionally and in terms of the CPA to be of any force and effect.

Having initially attempted to resolve the issue with the dealership direct in terms of the first rule stated above; and then having no joy; or failing to get proper consideration from the dealership; the next step and rule is to seek proper, professional advice and assistance from someone proficient in resolving this specific type of consumer issue.

You may choose to approach us for an opinion, advice or legal assistance.

We will ask you for a detailed email regarding the background and all the detail we need together with certain important documentation relative to yourself, the car and the dealership; and will then quote you for an opinion on your rights at a reasonable cost; or provide you with the necessary legal support and advice once again with a fair and reasonable quote to proceed with legal action against the dealership so as to enforce you consumer rights in terms of the CPA.

Please look at our website www.legaladviceoffice.co.za for further information.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail to info@legaladviceoffice.co.za and we will respond as soon as we can.

Thank you.

The Legal Advice Office Team.

As we stated in that blog:

Section 56 (1) of the CPA reads as follows:

“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 the 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.”

This is the statutory implied warranty which protects all consumers and entitles them to quality goods fit for their intended purpose. The warranty applies to the producer or imported of the goods; as also to the distributor, retailer and the supplier of the goods to the consumer. The warranty applies until it leaves their control. It is for this reason that the consumer normally looks to the supplier or retailer for enforcement of their rights as consumers.

Section 56 (2) of the CPA 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:

1. Repair or replace the failed, unsafe or defective goods, or
2. Refund to the consumer the price paid by the consumer for the goods.”

The six months period is normally strictly interpreted; but there are exceptions to that time frame.

It is the consumers choice of remedy ie repair, replace or refund; but to enforce our rights this legal process must be dealt with properly and professionally and it is a mistake to simply try and deal with it yourself as a consumer. Get professional help is our advice to all consumers and especially our clients.

It is also important to remember that these remedies do not normally apply to private sales; but there are also exceptions to this rule. Once again get professional help in relation to private sales.

The CPA; as we have stated previously covers both goods and services provided by a supplier to a consumer.

It generally, as also previously pointed out, 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. 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 also applies, as we have seen, 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, as we stated in our previous blog; could very well then have three separate potential claims available to you in a dispute with a supplier of damaged or defective goods. These claims could be 1; in terms of the CPA, 2; a common law remedy and/or 3: in terms of a manufacturer’s warranty; provided that that dispute relates to unsafe, damaged or defective goods or services.

In our next blog we will look at the implied warranty on repaired items as contained in section 56(3) of the Consumer Protection Act.

Please look at our website www.legaladviceoffice.co.za for further information.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail to info@legaladviceoffice.co.za and we will respond as soon as we can.

Thank you.

The Legal Advice Office Team.

These two sections of the CPA are extremely valuable to the consumer.

There is still a lot of confusion about the Consumer’s Right to choose a Repair, Replacement or Refund in respect of Damaged or Defective Goods as guaranteed by these sections of the Act.

As we all know by now the Consumer Protection Act (CP Act) came into operation at midnight on the 31^st March 2011.

Section 56 (1) of the CPA reads as follows:

“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 the 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.”

This is the statutory implied warranty and applies to all the above intermediaries until it leaves their control. We will explain this in our next blog.

Section 56 (2) of the CPA 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:

1. Repair or replace the failed, unsafe or defective goods, or
2. 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 Consumer Protection Act as they, in the past, would simply tell us 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. In short the act does not cover private sales. Your remedies in the case of private sales lie in 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 Consumer Protection Act No 68 of 2008.

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 Act 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. 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 Consumer Protection Act 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 CP Act, 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.

In our next blog we will explain these section in a little more detail and thereafter look at the implied warranty on repaired items as contained in section 56(3) of the Consumer Protection Act.

Please look at our website www.legaladviceoffice.co.za for further information.

Should you otherwise wish to comment on this or any other legal topic; just send us an e-mail to info@legaladviceoffice.co.za and we will respond as soon as we can.

Thank you.

The Legal Advice Office Team.