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In our previous two blogs we looked at the choices a consumer has if he purchases a defective of a damaged item; especially related to motor vehicles.

What we call the three R’s ie the choice is repair, replacement or a refund.

When it comes to motor vehicles which are damaged or defective which should you choose.

The first point to make is that it is your choice as the consumer and not up to the dealer to decide what he would like to do. Clearly it wold be in his interest to choose to repair the vehicle as that is the most cost-effective from his point of view.

We are all aware, by now, of the implied statutory warranty on the quality of goods guaranteed by the Consumer Protection Act No 68 of 2008 (CPA) and more particularly sections 55 & 56 of that Act.

There is still however a lot of confusion about the Consumer’s rights to choose a Repair, Replacement or Refund in respect of Damaged or Defective Goods as guaranteed by these sections of the Act. This applies particularly to defective motor vehicles.

Damaged or defective goods includes all goods bought and does include all motor vehicles; whether new or second hand; and whether they are cars, bikes, trucks, trailers, farm or industrial vehilces etc.

Section 55 of the CPA deals with the consumer’s rights to quality goods.

This section is backed up by the provisions of section 56 and especially section 56 (2) of the CPA which 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.”

That seems pretty straight forward; and to a very large extent self-explanatory.

Why then do so many suppliers duck and dive; and attempt to avoid their legal obligations to the consumer and their customers.

The answer to this question is that it is a nuisance to a supplier and they need to take time out; and incur cost; in repairing, replacing or refunding a consumer for an item that they have already sold to them.

Things were far too comfortable for suppliers before the advent of the CPA as they, in the past, would simply tell us as consumers that it was not their problem once we had taken delivery of an item and paid for it.

One has to remember that the provisions of this Act and these sections do not cover private individuals as sellers; as they are not suppliers or service providers conducting their sale in the ordinary course of business unless, of course, they do so on a part time basis; as sometimes happens. In short the act does not cover completely private sales. Your remedies in the case of private sales lie in the common law and more particularly the common law of contract.

One has to look at the definition of “a consumer” and “a supplier; in order to get confirmation that private sales are not covered by these provisions of the Consumer Protection Act.”

Section 1 is the definition section of the CPA.

In section 1; “a consumer’ is defined in great detail. It will suffice for our purposes here to simply quote from part of the full definition: “A consumer means a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business.” The section then goes on to give a more comprehensive detailed definition which it is not necessary to dissect here but the definition of a consumer is very wide and includes just about anyone buying an item from someone else who is conducting a business enterprise in selling amongst other things that particular item/items.

One also has to look at the definition of “a supplier” for clarity here.

Section 1 also defines “a supplier” which means: “A person who markets any goods or services.”

This is also a very wide definition.

As a consequence, the CPA covers both goods and services provided by a supplier to a consumer.

It does not apply to private sales as although all buyers are consumers as defined in the Act; the sellers however are not suppliers; as they do not sell their items in the ordinary course of a business enterprise; but only occasionally on a once off basis; if they are genuine private sellers. Clearly there may be exceptions to this rule; eg someone who is not a dealer but runs a business selling second hand cars in his spare time. He may well then be a supplier as defined in the Act although not a registered car dealer.

The CPA 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.

You, as a consumer could very well then have three separate potential claims available to you in a dispute with a supplier. These claims could be in terms of the CPA, a common law remedy and/or in terms of a manufacturer’s warranty; provided that that dispute relates to unsafe, damaged or defective goods or services.

Please visit our website at 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 and queries and we will reply within 48 hours.

Please note that we do charge for both our legal advice and service functions; but will always quote you first based on the complexity of your query or the services we are requested to perform for youl.

Thank you.

The Legal Advice Office Team.

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Legal Advice Office

South Africa

Kandelaar Street, Vermont, Hermanus
Phone: +27 (028) 316 2832

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