In our last blog we looked at the early termination of lease agreements,

In this blog we intend to renew our acquaintance with some of the provisions of the Consumer Protection Act No 68 of 2008 (CPA) dealing with leases and some of their terms and conditions in general in the CPA.

We intend therefore to refer to and discuss some of the provisions of the CPA relating to landlords, their leases and the question of whether or not certain terms and conditions in a lease are unfair, unjust or unreasonable.

The CPA also requires that landlords bring to the attention of all their tenants or prospective tenants certain provisions in their lease agreements.

Today, we only intend to deal with some of the sections of the Act which govern lease agreements and in particular some sections that deal with the terms and conditions in a lease agreement and also punitive clauses in particular.

Let us now look at some of these sections of the Act.

Sections 48 to 52 inclusive of the CPA deal with unfair, unreasonable and unjust contract terms.

Sections 48 & 49 prohibit suppliers (read landlords) from entering into any agreements on terms that are “unfair, unreasonable or unjust”, including any terms that require tenants to waive any rights or assume any obligations; waive any liability of the landlord or which impose as a condition of entering into a transaction, terms that are unfair, unreasonable or unjust and also prohibits ant agreement that favour the landlord excessively and to the detriment of the tenant.

This is a radical departure from the common law of contract as stated in our earlier blogs.

These sections of the Act also require a landlord, at the time of entering into a lease agreement, to notify the tenant of any term of the lease agreement that purports to limit the risk of liability of the landlord or any other person; or purports to constitute an assumption of risk or liability by the tenant; or purports to impose an obligation on the tenant to indemnify the landlord or any person for any cause; or purports to be an acknowledgement of any other fact by the tenant; and concerns any activity or facility that is subject to specific risks. This is long-winded; but essentially; the landlord cannot include clauses in a lease agreement which he fails to point out to a tenant and which restrict that tenants ordinary legal rights and protects the landlord to the exclusion of the tenant.

It is difficult to give examples of clauses that would be regarded as unfair, unreasonable or unjust; but in the past most lease agreements drawn up by landlords or their agents were so one sided and absolutely in favour of the landlord; and tenants had little say; but had to accept those terms or else look elsewhere for a lease. It was a question of take it or leave it.

That is now no longer the case and tenants can and do object to certain clauses and are successful in having them deleted from the lease.

In one example referred to us about a month ago; one of our clients, who approached us before signing a lease, had an objection to a clause in the lease which stipulated that there would be an agreed penalty of three months rental due to the landlord as a penalty in the event of the tenant giving notice to the landlord to terminate the lease agreement within the initial period of the lease. After we addressed an appropriate letter to the landlord’s agent, on behalf of our client the tenant; the landlord agreed to remove the clause in full from the lease agreement, prior to its being signed by the parties. This is just a simple example.

In general penalty clauses or indemnity clauses in favour of landlords in lease agreements will be regarded as falling within the ambit of a clause that is unfair, unreasonable and unjust and therefore unenforceable UNLESS it has specifically been pointed out by the landlord or their agent to the tenant; and the tenant has then agreed to those terms specifically despite their content. In other words you must object if they are pointed out to you. Other clauses that may well fall within the ambit of these sections are clauses where the tenant is forced to agree in advance to the state of repair of the property at the time of signature; without inspection or where there is a clause in the contract which stipulates that he must paint the property or clean the carpets at the end of the lease period. In our view such a clause may well be unduly favourable to the landlord to the exclusion of the tenant’s rights; depending on the facts of the case.

We trust that this explains to you some of your rights as a landlord or as a tenant.

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

Should you have any queries please send us an email to info@legaladviceoffice.co.za and we will revert with a reply within 48 hours.

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

Thank you.

The Legal Advice Office Team.

Prior to the Consumer Protection Act, No 68 0f 2008 (CPA) which came into effect at midnight on the 31^st March 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 much weighted in favour of landlords as opposed to their tenants.

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 a true interpretation of the CPA.

In terms of the CPA, tenants have the RIGHT to cancel their leases, as long as they do so while fulfilling ALL the cancellation criteria or requirements.

Tenants are advised to use a legal professional to attend to this on their behalf and not to try and simply do it themselves. That could lead to complications and the landlord or agent denying that there was full compliance with the CPA. This action does not amount to “a breach of contract.” It is best described as “an early termination of lease.”

The provisions of the CPA in respect of the early termination of lease agreements applies mainly to natural persons; namely ordinary consumers; and does not normally apply to juristic persons, trusts, body corporates, companies and close corporations.

This is in line with the goal of the Consumer Protection Act as a protection for consumers and not business entities. There are however some exceptions to this general rule.

A formal legal process must be followed to make an early termination legal and effective as regards the lease agreement and more particularly so as to comply fully with the Act. It is best to get professional legal advice and assistance in giving proper notice to the landlord and/or the managing agent.

Once the landlord or his agent has 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 what is referred to as 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 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. We hope this explanation on penalty clauses will help you to know your legal rights.

Please have a look at our website at www.legaladviceoffice.co.za for further information or send us an email to info@legaladviceoffice.co.za; and we will respond within 48 hours.

Thank you.

The Legal Advice Office Team.

Because of the number of queries we receive on literally a daily basis from our clients we are once again going to look at what to do in the situation where you have bought a “lemon” from a motor vehicle dealer.

One of the most important decisions a consumer makes during their lifetime from time to time in his or her life is the purchase of a motor vehicle.

The main reason for this is that it is a high value item and also at the same time a depreciating asset.

You will only buy a car a couple of times in your lifetime.

So we will take the example that you decide to buy a brand new motor car or a good quality “used” vehicle and within a short period of time you realise that the vehicle you bought is defective, damaged or not fit for the purpose for which you bought it for; or worse still you discover that it was previously involved in a collision and this fact was not disclosed to you at the time of the sale.

At The Legal Advice Office we get numerous queries from consumers with exactly this type of scenario.

Well the question is then.

What exactly DO you do in these circumstances or perhaps in similar circumstances?

Here are some guidelines: 10 clear steps and tips as to what you should do in these circumstances.

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. If for whatever reason you do not have the protection of the CPA; you may well have the protection of the common law depending on the facts of your particular matter and the remedy may well be similar.
10. 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.
11. Be practical and astute in making your decision as to either a repair, replacement or refund in terms of the CPA or a refund or quanti minoris in terms of the common law.

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 in any of the above circumstances to contact us at 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 within 48 hours.

Thank you.

The Legal Advice Office Team.

The purchase of defective or previously accident damaged motor vehicles seems to be a hot topic at the moment.

Why this would be the situation we are not sure; but in some ways is not surprising.

At The Legal Advice Office; we receive many complaints on a weekly basis from clients who have bought new and used motor vehicles which are giving them major problems with defects or are damaged in one way or another; or in some case the new owners discover after the sale that the motor vehicle they have bought was previously involved in a serious accident and this fact was never disclosed to them.

You do not have to accept this situation.

There are remedies available to you.

The first point that we would want to make; is that it does not matter whether it is a new car or a used car; the Common Law of contract and the Consumer Protection Act (CPA) still applies.

The Consumer Protection Act, No 68 of 2008 (CPA); which came into effect at midnight on the 31^st March 2011 has changed consumer law in the RSA irrevocably.

Secondly; if you find yourself in this position; we would strongly advise that you do not try and deal with the situation yourself.

It is essential that you get proper professional legal advice and assistance in resolving this issue. Here is a lot at stake.

As we have mentioned before; you have to follow a formal legal process to enforce you rights of a repair, a replacement or a refund in these circumstances.

Normally; you also only have six months from the date of sale to enforce those rights in terms of the CPA.

Subject to certain conditions; you have the protection of the common law for three years from the date of sale.

Although you can use the Ombudsman’s Office to try and resolve these matters; we find that they are not very reliable and only have a mediation function which goes nowhere if the dealer does not play ball.

We can assist; but need to advise you along the following lines:

Firstly; you only have a claim against the dealer that you bought the vehicle from.

Your claim is based on the Consumer Protection Act No 68 of 2008.

We prefer to use both the common law and the CPA if we can.

Secondly; your rights are briefly as follows:

If the dealer knew of the defect or should have known of its existence you automatically have the protection of the common law.

If the vehicle was defective/damaged at the time of purchase; you have the choice of repair, replace or refund at the dealers expense in terms of the CPA.

Whatever the basis of your protection might be one must remember that this is a formal legal process and must be attended to properly, efficiently and professionally.

As far as the process is concerned:

You would have to instruct us by email to do an intervention; which will take a week; and will also cost R 4000.00. This sum includes both the intervention and the costs of the letter of demand. This sum will also have to be paid to the credit of our bank account before we start the intervention process for you; but will be reclaimed from the dealer in terms of our formal letter of demand.

We would then need from you in one e-mail; the proof of payment for this sum; plus all the details and contact details of the buyer (yourself or the actual buyer); and your/their address and occupation.

We will also need all the details of the dealer including their address, postal address, telephone and fax numbers, e-mail addresses etc.

In addition; we will need the full description of the vehicle and its VIN and registration numbers; the account number of the financial institution or credit provider, if it was bought on credit; and lastly a complete list of all the defects in the vehicle.

As stated above we will claim back the R 4000.00 from the dealer in terms of the letter of demand and will threaten them with a summons should they fail to comply with the formal demand.

We will also need your clear instruction by email for either a repair, a replacement or a refund; as referred to above.

Please visit our website at www.legaladviceoffice.co.za for more detail on our services and how we operate.

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 to info@legaladviceoffice.co.za and we will respond within 48 hours.

Thank you.

The Legal Advice Office Team.

At The Legal Advice Office we often get asked about refunds due to consumers in terms of either the common law or in terms of the CPA.

As a result of yet another two enquiries today regarding firstly, the recent purchase of motor vehicle which was previously involved in a collision (which fact was not disclosed to our client) and secondly, with regard to a vehicle that was bought last month and which quite clearly has numerous material defects which have now become apparent to the purchaser since the date of sale; we thought that we need to explain this issue of when you are entitled to a refund one again today.

Two other clients of ours have raised queries yesterday about warranties for goods purchased and the effects of both the common law and the Consumer Protection Act which piece of legislation has been around now for more than 6 years as it came into force at midnight on the 31^st March 2011 and yet confusion still abounds both with consumers and suppliers.

The Common law allows a consumer to cancel a contract of purchase and sale if the supplier is in substantial breach of the contract.

The Consumer Protection Act (CPA) also has specific provisions dealing with warranties from retailers for purchased items. Sections 55 and 56 of the CPA are the most important in this regard.

1. The date of the warranty runs from the date of the original purchase. It does not run from the replacement date; if you chose to replace a defective item.
2. There is an automatic CPA statutory warranty on all items purchased and this consumer warranty entitles a consumer, as the purchaser, to choose a repair, a replacement or a refund in the instance of a damaged or defective item. It is the consumer’s choice not the suppliers.
3. If the consumer chooses a repair and the item breaks within three months after that repair, the consumer is again entitled to a replacement or a refund.
4. The CPA therefore can provide a warranty for a maximum effective period of nine months after/from the date of the original purchase.
5. If a defective item is brought in after six months, the CPA does not protect you and does not apply. In this case only the balance of the Store warranty, if any, applies or the consumer may have the protection of the common law up to 3 years after the date of sale.
6. In the case of the Store warranty only applying; it is likely that the terms of that warranty would cover only further repairs necessary for the defined period of the warranty itself and only during that period.

We believe it is important to know your consumer rights as laid down in the CPA or the common law; if you are going to be able to enforce those rights vis a vis the supplier.

It is also important to note that suppliers are not obliged to have a returns policy and they cannot be forced to accept a return even if you do have the original proof of payment and purchase and can provide the original packaging.

As a service to consumers most of the larger retail stores (and even some of the smaller ones) do however have a formal returns policy and if they do; you can insist that they abide by it or you may take the matter up with their Head Offices and lodge a formal complaint.

Your best protection is however in terms of the CPA; so our advice is to act immediately you are aware of a problem with the item and; as it is a formal legal process; you will need our help in all likelihood should you wish to enforce your consumer rights or else the service provider is entitled to simply ignore you.

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

The Legal Advice Office Team.

We often get enquiries about whether it is necessary to register your business, if you are starting one; and what does this cost?

The short answer is that you do not need to register your business with the National Government, Provincial Government or even with the Municipality.

You do not need a business licence any longer.

However; certain registration may be necessary depending on the type of business that you are running.

There are also other types of restrictive trading licences; mainly set at local government level; which restrict certain practices eg trading in residential areas or not trading in certain public places.

Also Liquor licences have to be obtained if you are intending in any way to trade in liquor. Entertainment licenses are necessary if you intend entertaining the public eg having a live band, a disco or indeed all types of different types of entertainment. Clearly also if your business entity is a company, close corporation or trust; these legal entities will have to be properly registered.

You also need to register with SARS for tax purposes and also for VAT; if your predicted gross income will exceed R 1 million in the next financial year.

We trust that this assists you in making some of your business management decisions.

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

Thank you.

The Legal Advice Office Team.

Although not really a part of our core business; we often get inquiries about either buying or selling a business; and often give legal and financial advice on this aspect of Commercial Law.

As a result; we thought that we could share with you a number of ground rules.

Firstly; unless you have some appropriate qualification or at least some experience in the field; do not try buying or selling a business entirely on your own. There are many pitfalls; and you also need to protect yourself properly. Get professional help and/or advice, at least.

Secondly, one needs to value your business if you are selling; and also to arrive at a fair market related purchase price if you want to buy one. There are a host of questions you need to ask yourself.

What is its market related price? How much would a willing and able buyer be prepared to pay you for your business? How much can I afford to spend and what is the business actually worth to me? The answer to these and other questions depend of a number of factors. What type of business is it? Where is it situated? How long has it been running? What do its financials say about its profitability and short, medium and long terms prospects? What competition does it have? What is the possibility of further increased competition in the short, medium and long term?

One can see straight away that this can be a vexed and complicated decision; namely; to arrive at what exactly is the business worth? You need expert; qualified and professional advice; and it need not cost you an arm and a leg. A business broker, lawyer and/or even an accountant could assist you in arriving at the correct purchase price. They need only be briefed at this stage to give you advice on the correct purchase price for the business. Nothing more.

Thirdly; and only once you have the correct purchase price; you need to decide how you intend to market the sale of the business if you are selling. Try and avoid giving a broker or agent a sole mandate; as this then forces both you and potential buyers and /or sellers to deal with that agent; and only that agent; and invariably involves you, as the seller, in having to pay that agent a substantial commission, which can vary from 5% to 10% of the purchase price; for selling the business for you.

As a buyer try; and deal with the owner direct. Bear in mind that the seller would in all probability have instructed the agent to build his commission into the purchase price.

Some businesses can be advertised and sold by their owners. Find a buyer for the business yourself. This can be done by adverting in magazines, newspapers or on the internet. Sometimes it can even be done by word of mouth. We recently assisted a lady selling her business in the local Mall; where she had simply put a sign up: “Business for sale: Apply within” in her window frontage.

Fourthly; and very importantly; the next Golden Rule is ALWAYS to have the agreement of Sale reduced to writing; and signed by both seller and purchaser. Here again; it is best to get professional assistance to draft the agreement of sale properly and formally; so that you have no repercussions. A voetstoots clause may be important but is not always what it seems because of the Consumer Protection Act.

Again; having a professional draft the Deed of Sale need not cost you an arm and a leg. Negotiate with the agent, broker or lawyer drafting the agreement; and also try to split the cost of this exercise with the seller and/or buyer; depending on which one you are in the circumstances.

We trust your find these tips useful.

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

Thank you.

The Legal Advice Office Team.

The Consumer Protection Act No 68 of 2008 (CPA) came into operation at midnight on the 31^st March 2011; and has been the law since that date.

It changed Consumer Law irrevocably and the entire intention of the Act is to protect Consumers against unfair business practices which had become rife.

We still get a lot of enquiries from clients and consumers who feel that they have been ripped off after having bought a motor vehicle.

A recent example was of a client who had bought a second hand car from a dealer in Pretoria and it turned out to be a real lemon! The dealer refused point blank to accept their responsibilities in terms of the CPA and we had to intervene for the client to get a full refund.

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

The CPA has some far reaching consequences both for the buyer and the service provider, or dealer, in the used and second hand vehicle market; as also for new vehicle sales.

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 in the past and the second hand car dealer has been the butt of many a joke dealing with dishonest practices and with the “voetstoots” or “as is” clause used as a fail- safe to protect an unscrupulous sales person 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 voetstoots, irrespective of whether they disclose what’s wrong with it or not. A vehicle can be sold voetstoots or “as is” 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; 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 any defects are discovered with 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.

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 rotten apple 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.

This information is equally applicable to the new car market; but we experience less complaints with new vehicle purchase for obvious reasons and also because they are often sold with warranties and consumers rely on these warranties when defects or damage occurs. They do not however have to do so as the CPA is the law and a lot stronger than a contractual warranty.

This is particularly true of the implied warranty and the provisions of section 55 and 56 of the CPA.

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! So choose carefully and use well known dealers and brands.

If you have experienced difficulties with buying a new or used car in the last six months; contact The Legal Advice Office at info@legaladviceoffice.co.za or look at www.legaladviceoffice.co.za

We specialise in consumer law, consumer protection and the enforcement of consumers rights in terms of the CPA; and these rights must be enforced properly, legally and professionally to be effective.

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 Consumer Protection Act, No 68 of 2008; (CPA); which, as mentioned in our last blog, came into effect at midnight on the 31^st March 2011 has changed consumer law in the RSA irrevocably.

There are a number of innovative consumer protection mechanisms in the CPA which are revolutionary in nature.

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

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. It is important to note this exclusion as we often get queries regarding goods bought on auction. The CPA does not apply to such sales; only the common law processes.

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 statutory warranty set out in section 56 of the CPA. This subsection of section 55 is therefore very important and wide-ranging.

We will deal with section 56 in another 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.”

An example will help to clarify this subsection and how it works.

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 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 CP Act; although they may still be protected by the CPA if they bought the goods from a service provider and may also have the protection of the common law I 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.

Please visit our website 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 at the above email addresses 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.

The Consumer Protection Act (CPA), No 68 of 2008, came into operation at midnight on the 31^st March 2011.

It is 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 ripped off especially when it comes to the poor quality of motor vehicles that they have purchased.

Our advice in this regard is valid for motor vehicles and all other purchased items.

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

A recent example of such a situation, where a buyer was dissatisfied with his purchase, was of a client who had bought a second hand car from a dealer in Durban and it turned out to be a real problem vehicle.

What are our rights and how exactly does the CPA protect a buyer of both a new and a second hand car? Remember that the same rules and advice apply to all articles bought from any supplier.

The CPA which, as we know, came into operation at the beginning of April 2011 has some far reaching implications for the buyer in both the new and the used vehicle market.

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 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.

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 any defects are discovered with 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 rotten apple 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 by an expert.

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 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 on 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 within 48 hours.

Thank you.

The Legal Advice Office Team.