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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14867
Experience:  L.LB (UOVS)
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Hi, is it possible for me to cancel a car deal after 4 months

Resolved Question:

Hi, is it possible for me to cancel a car deal after 4 months of purchase. The reason for this is that the car I bought is now cutting and loosing power. Which defeats the purpose of having a vehicle to take you from point a to b. before I purchased the vehicle. It went for asses,net from Audi. Where a list of problems was reported which I then opted to buy the car at a reduced price and committed to fix the problems on the list. Cutting and loss of power was not one of them. I have contacted financial legal from the bank that financed me and they say I am within rights to cancel the deal. However the dealer is reluctant and says I knew what I was getting myself into. (The deal was a private sale facilitated by the dealer who also did tests on the car) as I've said after only four months of owning the car I fear parking my car and it not starting. I will not trade it in because its obvious I gt a raw a deal. This is why I prefer to cancel the deal entirely. Cut my losses and buy a new car. The vehicle is a 2010 model, under warranty and has only 60 000 km

Please Help!!!!!!!!!!!
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.
Good day.

The Consumer Protection Act makes provision for an implied warranty on all goods purchased by a consumer from a supplier where the transaction has been concluded in the normal course of the business of the supplier. In other words, if it is a once off transaction for the person selling, the Consumer Protection Act is not applicable.

Section 55 of the Act reads as follows and gives the consumer the right to safe, good quality goods:

55. Consumer’s rights to safe, good quality goods.—(1) This section does not apply to goods bought at an auction, as contemplated in section 45.
(2) 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 usable 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 set under the Standards Act, 1993 (Act No. 29 of 1993), or any other public regulation.
(3) In addition to the right set out in subsection (2) (a), if a consumer has specifically informed the 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.
(4) In determining whether any particular goods satisfied the requirements of subsection (2) or (3), all of the circumstances of the supply of those goods must be considered, including but not limited to—
(a) the manner in which, and the purposes 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.
(5) 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.
(6) 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.

Section 56 state that you have a six month guarantee that the item will comply with the basic standard that is required by section 55. It reads as follows:

56. Implied warranty of quality.—(1) 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 leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.
(2) 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, and the supplier must, at the direction of the consumer, either—
(a) repair or replace the failed, unsafe or defective goods; or
(b) refund to the consumer the price paid by the consumer, for the goods.
(3) If a supplier repairs any particular goods or any component of any such goods, and within three months after that 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.
(4) 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.

So, if the item brakes within the first six month of the purchase, you have a choice: Replace, repair or refund. If you choose the refund option, the act states that it must be without penalty.

If the supplier does not want to honor your wish, you can refer the matter to the Motor Industry Ombud (www.miosa.co.za) or a civil court

Your first challenge, however, is the fact that some faults have been shown out to you when you bought. We have no case law at the moment which we can refer to, but this is going to affect the validity of your claim. If this is an issue totally unrelated to the issues that was pointed out to you, then I think you will be fine. But if this issue is something that can develop as a result of the other issues, then I think they will be able successfully defend this on the basis that they told you of the problems.

Your second challenge is that this is a private sale, facilitated by a dealership. The CPA is not applicable for transactions where the transaction was not enacted in the normal course of business of the seller. So, if it was the dealer that sold you the vehicle, there would be no question. The CPA would be applicable. Now that it is a dealership facilitated sale, it is a little bit of a gray area, similar to what we have with estate agents. Until there is case law, we can only speculate whether the Consumer Protection Act is applicable or not.

If it is not and the vehicle was sold 'voetstoots', you are not going to have any success in reversing the transaction. If no 'voetstoots' clause applies, you will not necessarily be able to reverse the sale, but you could possibly hold the seller liable for the latent defect.

I hope this helps you a little bit, but if you have any further questions, feel free to ask them before you rate. It will not cost you anything extra. If you are satisfied with the answer, kindly click on one of the five faces on the ratings page. I don't get anything for this answer unless you do.
Customer: replied 1 year ago.

Hi,


 


thank you so much for your feedback.


 


The car was sold to me under warranty from the dealership. Audi.


 


what agreed to is to accept the car with the faults listed from the assessment report returned to me. Which listed no engine related fault.


 


Also the defect of the car not starting is in no way what so ever related to the this. I am no technician but things such as light globes etc. no engine defaults were reported, I still have this documentation and proof of all the things I have fixed on the car.


 


which again defeat the purpose of having a vehicle if it cannot get me from point a to b. which is the purpose of the car. That I have paid 200 000.00


 


The people I purchased the car from are in the business of selling cars but operate as pvt salesmen. If that helps in anyway.


 


i am willing to accept my loss n the four months of use. I just don't think it fair or legal to be sold a car that has failed to transport me after 4 months. With no such related problem made aware to me.


 


Standard Bank, Financial legal has said to me if I want to cancel the deal I can, and cannot be denied. And that as much as the dealer facilitated the deal.. That is why there is a procedure in having the car tested, roadworthy etc to protect myself as a consumer because they were additional costs involved in getting the dealer to facilitate the deal.


 


Thank you for your help again.


what would you advise I do as the next step?


how do I legally and officially cancel this deal?


what is the likely outcome of this.


 


 

Expert:  WCLawyer replied 1 year ago.
If that is how they make some or all of their money, that is, if they sell cars for profit, then the CPA will be applicable. This does seem to be the case.

It seems as if the two possible problems that was highlighted would not be a problem in going ahead with this matter then.

Just know that the dealership is not obligated to return anything until they agree to that obligation or until a court forces them to abide by that obligation. By that I mean that, they might force you to take legal action in order to enforce your rights.
Customer: replied 1 year ago.

thank you.


 


so may I go ahead and cancel the deal? And if so how do I go about this? Who should I log this.


 


i understand the dealer is not liable

Expert:  WCLawyer replied 1 year ago.
You should notify the seller of your intention to cancel and tender delivery of the vehicle. Do that in writing and either hand deliver it, or send it via registered mail. Place him under terms. Say that if he does not contact you within 14 days, you will refer the matter to the Ombud.

If he refuses, you would have no other option than to refer it to the ombud, unfortunately, who will the make a ruling. Details on how to refer it, can be found on their website.

If the Ombud does not give you a favorable ruling, you would have to sue him for your money back and in your particulars of claim, tender delivery of the vehicle.
Customer: replied 1 year ago.

Thank you.

Expert:  WCLawyer replied 1 year ago.
My pleasure. Please do not forget to rate my service.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14867
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you

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