The introduction of the Consumer Protection Act 68 of 2008 (CPA) has brought about a lot of confusion in the second-hand goods industry, in particular, second-hand vehicles. In this article, we will look at how the court assessed the impact of the CPA on second-hand vehicle sales in the case of Ncc Vs Western Car Sales Cc T/A Western Car Sales (2017).
Ms Van Lil purchased a second hand vehicle with high mileage, which started exhibiting problems a week after purchase. Western Car Sales CC t/a Western Car Sales refused to refund her despite a ruling being issued by MIOSA. The court looked at Section 55(6) of the CPA which states that the conditions under which the consumer would be entitled to receive goods, would not apply to a transaction if the consumer has been expressly informed that particular goods were offered in a specific condition and has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.
The court stated that general vague contract terms which do not apply to a specific vehicle and specific defects would not be a convincing factor in finding that Section 55(6) of the CPA is applicable. If the specific defects are not specified, one would be left with the strong impression that any warnings in the contract are inserted purely in an attempt to escape liability in terms of the CPA. The court further stated that even if Section 55(6) of the CPA were applicable, the consumer would still have a right to goods which were usable and durable for a reasonable period of time, having regard to the use which they would normally be put and to all surrounding circumstances of their supply, and comply with any applicable standards under the Standards Act or any other public regulation. The concept of a “voetstoots” sale, whereby the supplier is able to sell goods without any form of liability for any defects, whether patent or latent, whatsoever is therefore not applicable to any transaction falling under the CPA.
The Tribunal found that Ms Van Lill was entitled to a refund of the purchase price paid for the vehicle in terms of Section 56 of the CPA and ordered that the vehicle be returned to Western Car Sales. Western Car Sales was interdicted from contravening the provisions of the CPA any further and was ordered to pay an administrative penalty of R100 000.00 under the circumstances.
In light of the above ruling, it is clear that suppliers are required to provide crucial information to consumers when purchasing second hand vehicles. Suppliers are cautioned against stating that vehicles are sold “voetstoots” or ‘as is’, but to rather inform the consumer about all defects because the consumer has to specifically agree to accept the vehicle in a particular condition. This will enable the consumer to make an informed decision when purchasing a second hand vehicle. Suppliers should further ensure that any terms and conditions on the purchase and sale are expressly brought to the consumer’s attention and cannot expect consumers to contract out of their rights afforded under the CPA. It is evident that a consumer who has purchased a second hand vehicle which exhibits defects within six months of date of purchase, has a right to return the vehicle to the supplier for repair, replacement or a refund and that the consumer cannot be forced into accepting a repair if they elect a refund or replacement.
ABOUT THE AUTHOR
Remolla Naidoo obtained her B.Soc.Sci (Law), LLB and LLM (Business Law) degrees from the University of KwaZulu Natal. She is a SEESA Consumer Protection and POPI Legal Advisor and has more than 7 years of hands-on experience in Consumer Protection and POPI.