he Consumer Protection Act (CPA) has had a vast impact on suppliers having to deal with difficult consumer’s not understanding the intention of Section 56 of the CPA. Section 56 imposes an implied warranty that all goods sold comply with the requirements listed in Section 55, and the supplier must, at the direction of the consumer, either:
- Repair or replace the failed, unsafe or defective goods, or
- refund to the consumer the price paid by the consumer for the goods.
The supplier therefore needs to incur the cost of repairing, replacing or refunding a consumer for goods which they have already sold to the consumer and which the consumer would have in most instances, already had use of. The biggest issue is determining when and under what circumstances one is entitled to a replacement or a full refund. This gets even more complicated when the goods contain many parts for example a motor vehicle.
It is therefore uncertain when one is entitled to a replacement vehicle or a full refund. In the opinion of many legal professionals specialising in the field of consumer protection, if one part of a vehicle has a defect; and that part can be easily repaired or replaced without affecting the entire vehicle then surely the consumer cannot insist on a full refund or replacement of the vehicle?
National Consumer Tribunal Decisions
In Bandera Trading and Projects CC v Kia Motors South Africa (Pty) Ltd t/a The Glen (NCT/17829/2014/75(1)(b))  ZANCT 50 where Bandera Trading and Projects CC (the applicant) purchased a motor vehicle from Kia Motors South Africa (t/a The Glen (the respondent) and the vehicle’s engine seized, the respondent claimed that the defect arose because the rpplicant had failed to have the vehicle serviced. The respondent alleged that the applicant had driven the vehicle without servicing it at the correct mileages and therefore quoted the applicant for the repairs to the vehicle. The applicant refused to have the vehicle repaired at their expense and instead referred the complaint to MIOSA. MIOSA concluded that the engine of the vehicle had seized because the applicant had failed to service the vehicle and so it found in favour of the respondent. The applicant then referred the matter directly to the National Consumer Tribunal (the Tribunal), with the leave of the Tribunal.
The Tribunal stated that the “…applicant had a right to return the goods (vehicle) to the respondent within 6 months in the advent that it failed to satisfy the requirements and standards as contemplated in section 55 of the CPA – per section 56 of that Act. The right to return goods in this light are not absolute as it excludes situations where goods were used in a manner contrary to the manufacturer’s specifications.”
The Tribunal further reflected on the fact it remained indefinite as to whether the nature of the repairs rendered the vehicle defective, even though the vehicle was returned to the respondent within the implied warranty period. The example used by the Tribunal was that a missing or damaged mudflap which was in issue at one of the repairs, would not result in the vehicle being defective. The Tribunal was unable to find that there is any reasonable prospect of the applicant’s claim succeeding.
In light of the above it is clear that while the consumer has the right to elect to have a refund, replacement or repair in light of Section 56 of the CPA, this is not an absolute right afforded to the consumer. The Tribunal confirmed in Bandera Trading and Projects CC v Kia Motors South Africa (Pty) Ltd t/a The Glen, that the fact that there was a missing or damaged mudflap did not render the vehicle defective. This was clearly due to the fact that the part of the vehicle (mudflap) can be easily repaired or replaced without affecting the entire vehicle. Therefore every case will inevitably have to be determined on its own merit.
ABOUT THE AUTHOR
Remolla Naidoo obtained her B.Soc.Sci (Law), LLB and LLM (Business Law) degrees from the University of the Kwa-Zulu Natal. She is a SEESA Consumer Protection & POPI Legal Advisor and has more than 5 years of hands-on experience in Consumer Protection and POPI.