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.
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