The statutory implied warranty as contained in the Consumer Protection Act No 68 of 2008 (CPA) is, from our point of view, one of the most important aspects granted to us by the CPA and the provisions of section 55 and 56 of that Act protect us from various previously rampant unfair business practices.

These sections are very important from a practical point of view and this is especially true of big budget items and in particular the sale of both new and second hand motor vehicles; in particular the latter categorically.

We have had numerous queries weekly at The Legal Advice Office from consumers who have bought cars from second hand car dealers; and who are, a short while later, discovering various serious defects in those vehicles.

This clearly is a major problem and the dealers, by and large, do not abide by the law or otherwise they seek to interpret the law in a manner which is beneficial to them and not the customer.

We wish to emphasise the fact that all of us, as consumers and customers, should be aware of this fact; that the Consumer Protection Act, Act No 68 of 2008; which became law at midnight on the 31^st March 2011 has radically shifted the balance of power from the supplier to the customer; when it comes to the question of returns of defective, unsuitable for their specific purpose, and damaged goods.

Let us also make another fact very clear as well. Motor vehicles are, as far as we are concerned, covered by sections 55 and 56 of the CP Act; despite the argument by both dealers and the Ombudsman that the vehicle consists of components and that they need only replace/repair a component; if it is defective. That is true. That is however not the case if the vehicle itself, and not just one or two components, are or were defective on the date of the sale.

Since the Act came into effect; consumers have had the choice of remedy if the item they purchase breaks/malfunctions, is defective or stops working as it was intended to; but this choice and your action must take place within six (6) months of the date of purchase.

You no longer have to accept the supplier’s first choice of a repair to the item; and the supplier or service provider cannot dictate to you what you should choose. It is your choice and you decide whether you want a refund, a replacement item or a repair of the defective or damaged item. Do not let the supplier decide for you. It is your choice in terms of the Consumer Protection Act. This also applies to big purchase items like motor cars, electrical appliances and expensive flat screen TVs and also all other expensive electrical and other goods.

This current state of affairs is a massive advantage now for consumers; and retailers are understandably reeling from the consequences of the requirements of the Act and the duty now placed on them by the implied warranty; and they try to avoid liability for replacing or refunding a customer; as that is a lot more expensive for them than simply repairing the item in question.

It stands to reason therefore that as one of the industries with the most to lose is this regard; the motor industry and motor trade generally, given the high price of its products; has even argued that the sections of the Consumer Protection Act which cover defective goods (mainly sections 55 and 56) don’t really apply to them; and do their best in any given set of circumstances to duck and dive their way out of responsibility to their customers and almost invariable try and get the customer to agree to a repair without ever explaining to the consumer their legal rights in terms of the CP Act. We literally deal with these situations on a daily basis. Their argument is entirely wrong. There is nothing in the Act that excludes motor vehicles from the provisions of section 55 and 56 of the Act.

We have also had to deal with motor vehicle dealers who tell us flat out that the CP Act does not apply to them at all; and even their attorneys have contacted us and written e-mails/letters to us advising us that the provisions of the CP Act do not apply to their clients; as they motor car dealers. That is nonsense! The Act does apply to all motor vehicle manufacturers and dealers and there is no question about that. It is a fact.

We trust that the above clarifies the situation for all our clients and that you are all better aware of your consumer rights as they pertain especially to high priced items which always seem to attract attention because of the potential consequences of our exercising our rights in terms of the CP Act.

Please visit our website at www.legaladviceoffice.co.za or simply send us your legal query to either info@legaladviceoffice.co.za or info@thlegaladviceoffice.co.za and we will respond within 24 hours if we can.

Should you otherwise wish to comment on this or any other legal topic; please also just send us an email and we will reply within 24 hours to your query.

Thank you.

The Legal Advice Office Team.

Sometimes these relate to motor vehicles that were bought some time ago where the owner finds out now, for the first time, that the vehicle he or she bought was previously involved in an accident and this was never disclosed to him or her at the time of the sale from the dealership or the individual private seller.

Sometimes the queries relate to a sale from a dealership and sometimes they relate to a private sale from a private individual who sells vehicles part time and on other occasions it is a sale from a private individual who just sold his own private car.

This shows some of the scenarios which can play a role in the solution to the problem any particular client may have. The solution depends on the individual facts of each case and which legal principles are then applicable to these facts.

All these different scenarios have a different legal solution.

In almost every case we deal with there is a solution. The trick is to know how to solve the problem or resolve any impasse with the seller. Sometimes the solution is to be found in the common law and more particularly the common law of contract; other times; the solution is to be found in legislation and in particular the Consumer Protection Act No 68 of 2008 (CPA).

In almost all of these various scenarios you will need to obtain proper, professional legal advice and legal services to resolve the issue or impasse.

Many people try to deal with these issues on their own based on what they have read on the internet in particular and their efforts result in a stalemate or sometimes even in compromising a previously strong legal position.

One needs to understand the law and to be able to interpret both the common law and legislation to understand your legal rights and also then to apply them legally to resolve the issue. You are not going to achieve either of those goals by reading an article of a blog on the internet. You need to be legally qualified and experienced to achieve those two goals.

It is for these reasons that you need to give all the facts to a legal professional and request both their advice and their legal assistance to achieve your goals. Yes; it will cost you money but it will be money well spent at the end of the day.

If you are experiencing a problem with a dealer or a faulty car or even with a private motor vehicle seller do not hesitate to contact us to enable us to find a solution to the problem for you.

Please read our website at www.legaladvceoffice.co.za or simply send us an email with your legal query to one of our email addresses at either info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za and we will revert to you within 24 hours with a reply.

Should you also wish to comment on this or any other legal topic; please just also send us an e-mail; and we will respond to your query as soon as possible.

Thank you.

The Legal Advice Office Team.

Sometimes our clients are a business and want to know how they can go about recovering a debt and sometimes they are simply private individuals that have loaned money to a family member, friend or acquaintance and are now struggling to get that money repaid to them.

The starting point of all of these matters is a formal letter of demand.

The legal basis of a letter of demand is to place the debtor in “mora; which is the Latin word for “delay.” The debtor is placed on notice and given a time frame within which to comply with the formal demand of the creditor.

Almost every single business will have customers who either fail, neglect or refuse to pay a debt at some time or other and a letter of demand then sets out the facts that gave rise to the debt, advises the debtor of any legal rights they may have; and then demands that they pay the debt by a certain date or within a certain period of time.

There are certain debts where legalisation requires that a letter of demand include certain statements and set out certain facts and if you fail to include these in the demand; you will not be entitled to sue the customer for the debt until you have complied with those requirements.

A few examples will suffice:

1. Where you have a credit agreement; section 129 of th National Credit Act requires that you advise the debtor of certain rights before you are legally entitled to issue a summons or institute legal proceedings; and if you do not comply with this requirement of what is commonly referred to as a section 129 demand you will give the debtor a defence to your action and the court itself may dismiss your claim.
2. Another instance is where you have a loan agreement and no date for repayment was agreed upon ie it was open ended; then you must first make demand on the borrower to repay the loaned amount in a letter of demand. As stated above; by doing so; you are legally putting the debtor “in mora” and that then makes the debt due and payable in terms of the demand. You must, in the letter of demand, state that the debt must be paid by a certain date or within a specific period of time and advise them that in the event that they fail to do so that you will then sue them.
3. There are also other instances where you simply wish to advise a debtor that you are serious. You may for example have requested payment several times and these request have simply been ignored. When this happens it is usually a good idea to get a legal firm to formally make the demand for you; as this invariably has the effect that the debtor now realises that you are in earnest in your pursuit of repayment of the debt.

It may be that you first want to send a formal demand yourself; but even in these circumstances; it would be best to get a lawyer to at least assist you with the wording as you would want to make sure that the letter of demand will have the correct legal effect.

In short; a letter of demand is the first step towards litigation and normally a very important legal document as it sets out both the background to the debt and formalises the legal issues of “mora” and demands payment by a certain date or within a stated period of time. It can also assist very often in settling a dispute before you have to approach a court for the necessary legal assistance.

Please visit our website at www.legaladviceoffice.co.za or simply send us an email with your legal query to info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za and we will respond with 24 hours.

Thank you.

The Legal Advice Office Team.

Sometimes our clients are a business and want to know how they can go about recovering a debt and sometimes they are simply private individuals that have loaned money to a family member, friend or acquaintance and are now struggling to get that money repaid to them.

The starting point of all of these matters is a formal letter of demand.

The legal basis of a letter of demand is to place the debtor in “mora; which is the Latin word for “delay.” The debtor is placed on notice and given a time frame within which to comply with the formal demand of the creditor.

Almost every single business will have customers who either fail, neglect or refuse to pay a debt at some time or other and a letter of demand then sets out the facts that gave rise to the debt, advises the debtor of any legal rights they may have; and then demands that they pay the debt by a certain date or within a certain period of time.

There are certain debts where legalisation requires that a letter of demand include certain statements and set out certain facts and if you fail to include these in the demand; you will not be entitled to sue the customer for the debt until you have complied with those requirements.

A few examples will suffice:

1. Where you have a credit agreement; section 129 of th National Credit Act requires that you advise the debtor of certain rights before you are legally entitled to issue a summons or institute legal proceedings; and if you do not comply with this requirement of what is commonly referred to as a section 129 demand you will give the debtor a defence to your action and the court itself may dismiss your claim.
2. Another instance is where you have a loan agreement and no date for repayment was agreed upon ie it was open ended; then you must first make demand on the borrower to repay the loaned amount in a letter of demand. As stated above; by doing so; you are legally putting the debtor “in mora” and that then makes the debt due and payable in terms of the demand. You must, in the letter of demand, state that the debt must be paid by a certain date or within a specific period of time and advise them that in the event that they fail to do so that you will then sue them.
3. There are also other instances where you simply wish to advise a debtor that you are serious. You may for example have requested payment several times and these request have simply been ignored. When this happens it is usually a good idea to get a legal firm to formally make the demand for you; as this invariably has the effect that the debtor now realises that you are in earnest in your pursuit of repayment of the debt.

It may be that you first want to send a formal demand yourself; but even in these circumstances; it would be best to get a lawyer to at least assist you with the wording as you would want to make sure that the letter of demand will have the correct legal effect.

In short; a letter of demand is the first step towards litigation and normally a very important legal document as it sets out both the background to the debt and formalises the legal issues of “mora” and demands payment by a certain date or within a stated period of time. It can also assist very often in settling a dispute before you have to approach a court for the necessary legal assistance.

Please visit our website at www.legaladviceoffice.co.za or simply send us an email with your legal query to info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za and we will respond with 24 hours.

Thank you.

The Legal Advice Office Team.

But even with the most stringent checks and tenant approval processes, it is still possible to end up with bad tenants; who then need to be evicted.

This eviction process is time consuming and needs to be carried out strictly according to the letter of the law; if you do not want to face some sort of legal backlash in the future.

Essentially there are three instances in which an eviction becomes necessary and legal. These are: 1 when tenants damage the property, or 2 default in payment of the rent, or lastly 3 use the property for anything other than what was agreed to with the landlord in the lease agreement.

It may well be tempting to change the locks or take the law into one’s own hands; but this type of action will be seen as an unlawful eviction as landlords are not simply legally allowed to evict tenants themselves without following due process. A formal legal procedure must be followed. If it is not; the court may well order that the tenant may return to occupy the property.

The reason for the eviction must also be a valid one in terms of the Unlawful Occupation of Land Act of 1998 which has the objective of legally preventing unlawful and arbitrary evictions. This Act is often referred to as “The PIE Act”.

“The PIE Act” sets out the guidelines on the eviction process, which must be strictly adhered to. It is thus advisable to get formal proper and professional legal advice whenever you are contemplating an eviction of a tenant.

It is also trite that the more detailed and comprehensive the lease agreement; the easier it is to follow through properly with the formal eviction process.

In a normal simple eviction; the following guideline steps must be adhered to.

The first step is the cancel the lease with the tenant; explaining at the same time why the contract is being terminated. It is also important to note that the Consumer Protection Act No 68 of 2008 stipulates that landlords must give tenants a minimum of 20 business day’s notice to rectify their breach of contract before they can validly and legally terminate the lease agreement between themselves and the tenant.

The second step is; once the lease has been terminated on proper notice to the tenant; that the landlord can then proceed with the formal eviction process and approach the appropriate court to obtain an ejectment order on an eviction application. The court will require proof that the termination of the lease is legally valid and has been properly and legally dealt with.

If the application for eviction is not opposed; it could still take as long as eight to ten weeks before to court finalises the eviction process.

In the third step of the process; the tenants will have to be properly notified of the provisional eviction order and will be allowed to make their case as to why they should not be made final and them evicted from the property.

It is entirely possible that the tenants will dispute the reasons for the cancellation of the lease, in which case, the court may well hear evidence in this regard before giving its final ruling.

It is also important to serve a copy of the provisional eviction order on the local authority or municipality timeously; because the PIE Act states that the municipality must receive it no less than 14 days before the date on which the application for eviction is to be heard in court.

In most cases; it is standard practice to give tenants with at least one month’s notice and advising them to find alternative accommodation before the sheriff of the court will be lawfully entitled to evict them in terms of the final eviction order.

It is therefore critical in all these eviction matters to provide a sound, legally binding rental contract and to make provision in it for breach or contract and eviction when that happens; as well as clearly stating and documenting the evidence and reasons for the cancellation of the lease.

The eviction process is lengthy and costly and a lack of due diligence may well result in a situation which drags on and result in an unpleasant final result or even a result which leads to the dismissal of an application for eviction or indeed a protracted and expensive court case.

Our advice is therefore to get proper, professional legal advice right from the beginning.

You would be strongly advised to contact The Legal Advice Office to attend to the drafting of your lease agreements and for advice on how to proceed with an eviction application.

Please visit our website at www.legaladviceoffice.co.za or send us an email to either info@legaladviceoffice.co.za or info@thelegaladviceoffice.co.za

Thank you.

The Legal Advice Office Team.

We have just recently been looking at section 55 and section 56 of the Consumer Protection Act No 68 of 2008 (CPA); and in particular these two sections which deal with The Consumers Rights to Safe Quality Goods and The Implied Warranty of Quality as they are applicable in particular to the purchase of both new and second hand Motor Vehicles.

As stated previously, at The Legal Advice Office we get numerous enquiries from clients seeking our help in resolving issues with dealers when they have recently bought a new or used vehicle and shortly after buying the vehicle discover various defects or damage to the vehicle; not caused through any fault of their own.

Well the question is.

What DO you do in these circumstances when it happens to you?

Here are some guidelines: 10 clear steps.

1. Go back to the dealer from whom you bought the car and advise them immediately of the problem and allow them to inspect the vehicle and report back to you on their findings.
2. At the same time, request them to do a thorough inspection of the entire vehicle from bumper to bumper to check for any other possible problems or defects.
3. If you feel it is necessary get another full diagnostic check done of the vehicle from an independent service provider; and get that report in writing.
4. Discuss the findings of the above inspections with the dealership from whom you bought the vehicle; and ask them what they intend doing about the various issues you have now discovered.
5. Do NOT simply agree to or allow them to repair the vehicle.
6. Remember that it is your choice as a consumer to choose the remedy namely; either a repair; or a replacement vehicle in the event that the defect/s are material; or a refund also only in the event again of the defect/ being material.
7. Get proper professional legal advice as to what you should do in the circumstances before giving any instruction to the dealership.
8. Always remember that you as the consumer have the protection of Consumer Protection Act No 68 of 2008.
9. The above should be followed as soon as you are aware of the problem and not weeks or months later or you may have lost your legal remedy.
10. Be practical and astute in making your decision as to either a repair, replacement or refund.

The above 10 guidelines should apply in most circumstances although the facts of each particular matter will be different; and these steps, as outlined above, may well have to be adjusted accordingly.

The same intervention processes and procedures apply to the purchase of all major consumer items in addition to; and not only to motor vehicles.

You would be strongly advised to contact The Legal Advice Office to attend to this or any intervention process for you; and not to attempt to do so on your own as you do not normally have the necessary legal or practical 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 as soon as we can.

Thank you.

The Legal Advice Office Team.

As we know; we, as consumers, have the choice of repair, refund or replace in the event of goods bought by us being defective or damaged at the time of the sale.

This choice has to be formally communicated to the seller, your rights fully explained and the reasons given for your advices to the effect that the goods in question are either damaged or defective as per the relevant provisions of the CPA.

If a formal proper legal process is not followed the supplier will quite rightly simply ignore your protests.

It is for this reason that it is always important to get proper, professional legal advice in this regard; before attempting to exercise you legal rights.

One of the questions that arises from this choice by the consumer of repair, replace or refund however this is: “What happens if I choose to have the item repaired; and the supplier does so; and that does not solve the problem to my satisfaction? “

“Can I then again choose a refund or a replacement?”

The answer is usually: “No.”

It is clear that you cannot simply keep on making a choice or choices until you are entirely satisfied. That is not the intention of the implied warranty. As the saying goes: “You only have one bite at the apple!” The supplier/service provider will be very quick to point this out to you; and will insist; that he has now complied with his obligations in terms of section 56(2) of the Consumer Protection Act and has no further legal obligation to you.

However; if you formally choose a repair; then section 56(3) comes into play after the repair is affected.

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; not only in respect of the repair for that particular repair but also extends it further to any other defect that may arise or come to your notice within that same 3 month period.

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 have been a refund ( for obvious reasons) or a replacement item. The act 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.

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 is over and above any other statutory warranty or manufactures guarantee and is in addition to any such warranty.

Suppliers have tried to argue that if they give you a written guarantee that this guarantee replaces the warranty created and contained in the Act.

This subsection makes it clear that that argument does not hold any water; and is both factually and legally incorrect.

Until next time

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 email and we will respond.

Thank you.

The Legal Advice Office Team.

This confusion centres on when one, as a consumer, is entitled to a refund or a replacement when exercising one’s choice of a repair, replacement or refund in respect of damaged or defective goods as guaranteed by these sections of the Act.

To recap: Section 56 (2) of the Consumer Protection Act, No 68 of 2008 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.”

It is a simple issue if the consumer chooses a repair to the item at the service providers cost.

The confusion arises as to when and in what circumstances one is entitled to a replacement item or a full refund.

Depending on the facts this may not then be as simple and a formal legal process must be followed; especially if one encounters resistance from the supplier.

If the item is a single entity for example a car tyre; it still remains a relatively straight forward issue.

The complication and confusion surfaces when the item in question in itself contains many entities and or parts; and the best example of this and the one that arises the most in our experience; is the new or more often the second hand motor vehicle.

The question then is: When is the vehicle in question so defective or damaged, in whole or in part, to such an extent that one is entitled to a replacement vehicle or a full refund?

The answer is not a simple one.

In our view; if the vehicle has only one problem or defect; and that item can be easily repaired or replaced without affecting the integrity of the entire vehicle; then clearly only that item need be repaired or replaced; and one cannot insist on a replacement vehicle or a refund. For example if the clutch plate is defective and the clutch mechanism can be easily replaced by the dealer then that is what should and will happen; and one cannot insist on the right to a replacement vehicle or a refund of the full purchase price.

Common sense must prevail.

However; if the vehicle has numerous and varied problems and the sum of those problems allow for an objective finding that the vehicle is indeed materially defective or damaged; then clearly the vehicle itself is defective and one can then legally insist on a replacement or a refund in full. This also applies, in our view, to vehicles that have previously been involved in a serious accidents and this fact was not disclosed to the purchaser at the time of the sale; although this right to cancel would then not necessarily devolve to the consumer as a result of the CPA alone; but would also have a strong basis in our common law.

To sum up therefore; and particularly when we are dealing with big budget items; that have many and varied parts; although the CPA gives the consumer the choice of repair, replace or refund; common sense must prevail; and one cannot, because of a minor problem with one part only, that can easily be repaired or replaced, insist on a replacement or a cancellation of the entire deal and a refund.

Each case will however have to be judged on its own merits. Clearly also the type of damaged or defective part involved, or its integral role to the integrity of the entire item; will play a major role in the decision decided on the basis of common sense and an interpretation of the law.

The CPA also 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.

A consumer could in certain circumstances have three separate potential claims available to him/her in a dispute with a service provider. Those claims could be 1; in terms of the CPA, 2; in terms of the common law and/or; 3; in terms of a manufacturer’s warranty; provided that that dispute relates to unsafe, damaged or defective goods or services.

It is ALAWYS advisable to get proper, professional legal advice and services in resolving these issues between consumer and supplier.

Please visit our website at www.legaladviceoffice.co.za or send us an email query to info@legaladviceoffice.co.za

Thank you.

The Legal Advice Office Team.

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 applies 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 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.

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 CP Act. 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 contract or 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.

Please visit our website at www.legaladviceoffice.co.za or send us an email to info@legaladviceoffice.co.za or info@thelegaladviceoffcie.co.za and we will revert within 24/48 hours.

Thank you.

The Legal Advice Office Team.

Prior to the commencement of the Consumer Protection Act, on the 1^st of  April 2011, the law of contract and the common law covered the issue of when and how a tenant went about cancelling a lease agreement. That has all now changed since the commencement date of the CPA; and tenants and landlords need to be aware of the statutory provisions of the Act; which now cover the early termination and cancellation of lease agreements.

Prior to April 2011; both parties were pretty much bound by the terms of the lease agreement and this was very weighted in favour of landlords and to a great degree disadvantaged tenants, especially as most lease agreements are drawn up for the benefit of the landlord and not the tenant.

It happens that incorrect terminology is sometimes used when leases are cancelled early. Landlords and their agents often refer to an early cancellation of a lease agreement by the tenant as “a breach of contract.” This is not the case.

In terms of the Consumer Protection Act, tenants have the RIGHT to cancel their leases, as long as they do so while fulfilling ALL the cancellation criteria or requirements. Tenants who do this must do so in writing and must give at least 20 days’ written notice. This MUST be done properly and correctly so as to fully comply with the CPA.

The rental for those 20 days is payable by the tenant; and they must pay same; pro rata, if applicable, to the landlord for that period. This action DOES NOT amount to a breach of contract.

Once the landlord or his agent have received the written notice of cancellation, they should make a note of the date on which the lease is now due to end; and should start advertising immediately for a new tenant for the property. This responsibility lies squarely on the shoulders of the landlord or his agent to find a new and suitable tenant. The costs of so advertising however should also be noted, as these costs can be charged to the tenant, as part and parcel of the “reasonable penalty” that the landlord is entitled to hold the tenant responsible for; as a result of the early cancellation of their lease agreement.

Although the landlord is entitled, in terms of the Act, to hold the tenant liable for a “reasonable penalty” fee for early cancellation of the lease; this does not and is not meant to be used to penalise tenants; but rather is intended to allow the landlord to recoup any losses he may have suffered as a result of the early cancellation of the lease agreement; and the tenant vacating before the lease has run its course.

The costs that may be included in such a penalty would for example include the credit check costs for a prospective new tenant; and any other reasonable incidental costs relating to the new tenant and which have been reasonably incurred by the landlord in finding that replacement tenant; such as advertising costs and would also sometimes include the rental lost by the landlord if and during the period that the property was to stand vacant. It is not however a carte blanche penalty which the landlord can simply impose as he sees fit; eg 3 months’ rent. That will not fly. It must be based on his actual financial damages. It has justifiably been described as “a penalty which cannot be charged upfront. They can only be calculated once a new tenant has been found and the landlord cannot gain financially or benefit from the tenants cancellation penalty costs. He is simply reimbursed.”

On this basis; penalty clauses in lease agreements which purport to agree a cancellation penalty in advance will simply not hold up in court.

The inconvenience for a landlord caused by an early cancellation will no doubt be both annoying and time consuming; but it is clear that a tenant has the RIGHT to cancel a lease. The landlord is only then entitled to recover his actual loses in an early cancellation penalty clause.

The CPA is however vague in that it does not define a “reasonable penalty;” and only states that a reasonable penalty may be charged for early cancellation. In practice however and in SA Law; a person who suffers damages as a result of another person’s actions is only ever entitled to recover those damages which he has actually sustained; and can prove. In practice also; it normally does not take more than a month to find another tenant.

Once again; both landlords and tenants must be aware of their rights in this regard.

Please visit our website at www.legaladviceoffice.co.za or send us an email to info@legaladviceoffice.co.za and we will respond within 48 hours

Thank you.

The Legal Advice Office Team.