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We, as consumers, have the choice of repair, refund or replace in the event of goods bought by us being defective or damaged at the time of the sale.

One of the branches of the Law that we specialise in is Consumer Law and often regarding defective motor vehicles. The inquiry was sent to us yesterday.

“Can I sue a dealer who has sold me a defective motor vehicle? My attorney told me to sue them for damages and wanted a  R 15000.00 deposit. What are my options? I bought the vehicle on the 20th January 2018 and it now has a seized engine as a result of a defective water connection pipe and I have been quoted R 66400.00 for repairs. Please advise me in this regard.

Remedies under the Common Law and remedies now available under The Consumer Protection Act No 68 of 2008 differ greatly.

As a result of some recent confusion and also in response to the above inquiry; we will today explain the difference between one's remedies as a consumer prior to the coming into existence of the Consumer Protection Act (CPA) and the position of consumers in the above circumstances at the present time and in fact since 2011.

Prior to the effective date of the CPA; which came into effect at midnight on the 31st March 2011; the consumer could only rely on the common law.

At common law; if the vehicle was defective; the consumer would have to prove that the dealer knew about the defect at the time of the sale. This was a difficult task and a heavy onus. If he could prove this prior knowledge; the consumer would then have common law remedies and could sue for damages or for a cancellation of the sale based on a material non-disclosure.

Since 2011, we, as consumers, have the choice of repair, refund or replace in the event of goods bought by us being defective or damaged at the time of the sale. This is now an implied statutory warranty for all goods sold by a service provider and is guaranteed by sections 55 and 56 of the CPA. It is a statutory guarantee.

But how do you activate it?

You must be able to show that the vehicle is materially defective.

Your choice of remedy as set out above has to be formally communicated to the seller dealer, your rights fully explained and the reasons given for your advices to the effect that the goods in question are either damaged or defective as per the relevant provisions of the Consumer Protection Act (CPA). This is a formal legal process. If a formal legal process is not followed properly the service provider will quite rightly simply ignore your protests and is entitled to do so.

One of the questions that arises from this choice of repair, replace or refund, by the consumer, however is this:

“What happens if I choose to have the item repaired; and the supplier does so; and that does not solve the problem to my satisfaction? “

“Can I then again choose a refund or a replacement?”

The answer is usually: “No.”

It is clear that you cannot simply keep on making a choice or choices until you are entirely satisfied. That is not the intention of the implied warranty. As the saying goes: “You only have one bite at the apple!” The service provider will be very quick to point this out to you; and will insist; that he has now complied with his obligations in terms of section 56(2) of the Consumer Protection Act and has no further legal obligation to you.

However; if you formally choose a repair; then section 56(3) comes into play after the repair is affected.

Section 56 (3) of the Consumer Protection Act, No 68 of 2008 reads as follows:

“If a supplier repairs any particular goods or any component of any such goods, and within three months after the 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.”

This subsection is again very wide; and again gives you an implied warranty on the repaired goods for a further 3 months; not only in respect of the repair for that particular repair but also extends it further to any other defect that may arise or come to your notice within that same 3 month period.

It is important to note that this extension of the implied warranty on goods only applies in the event of a repair and does not apply should your first choice have been a refund ( for obvious reasons) or a replacement item. The act is silent on whether the replacement item is also subject to the implied warranty created by Section 55 and 56 of the Consumer Protection Act. We would argue that it is; because of the very wide terminology used by the legislature in section 56(2) of the Act.

Once again we emphasise that if you have a problem deal with it via the formal legal process and do not attempt to do so yourself.

Finally we have section 56(4) on the implied warranty which is self-explanatory and states:

“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.”

This means that the implied warranty is over and above any other statutory warranty or manufactures guarantee and is in addition to any such warranty.

Suppliers have tried to argue that if they give you a written guarantee that this guarantee replaces the warranty created as contained in the Act.

This subsection makes it clear that that argument does not hold any water; and is both factually and legally incorrect.

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 practicing 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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