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defective vehicle

Within six months after the delivery of goods, a consumer may return the goods to the supplier without penalty and at the supplier’s risk and expense

We did a blog last week on the difference in approach now under the CPA and the previous situation where a consumer could only rely on the common law for a remedy if they bought a defective car and in response, we received the following query:

“Please explain to me how the implied warranty in terms of the Consumer Protection Act works as I also recently bought a defective motor vehicle which has now cost me R 37500.00 to repair and is still not 100%. What are my rights in this instance?”

The Consumer Protection Act No 68 of 2008 (CPA):

Section 56 (2) Implied Warranty:

As one can see there still seems to be a certain amount of confusion on the issue of the implied statutory warranty set out in Section 56 (2) of the Consumer Protection Act, No 68 of 2008 (CPA).

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 usually a simple issue if the consumer chooses a repair to the item at the service providers cost. Although one can see from the above question that repairs are not always successful.

The real confusion arises however 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 ALWAYS 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 to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practising attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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