The CPA imposes a built-in or automatic warranty (commonly known as a guaranty) that all
goods sold comply with the requirements listed in Section 55.
If the goods are not suitable for the purposes for which they are intended or otherwise fail
to comply with the requirements listed in Section 55, the consumer is entitled to return
them, at the supplier’s risk and expense and without penalty, and:
(a) Have the item(s) repaired; or
(a) Have the item(s) replaced; or
(b) Get a full refund of the price paid.
Section 56 would refer to a defect present at the date of sale or commonly present after purchasing same, but first, a Consumer/Supplier must be made aware of the definition of a defect as per the Act-
‘‘defect’’ means—
- any material imperfection in the manufacture of the goods or components, or in performance of the services, that renders the goods or results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or (ii) any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances.
Not every defect entitles a consumer to return goods for a refund or a replacement: The defect must be a “material imperfection”. Another word for the material is significant. The defect may also be an imperfection or a characteristic that renders the goods less useful. It is permissible under the CPA to look to foreign law for guidance.
With reference to most dealers selling motor vehicles this defect and disclosures of a similar kind usually plays a vital role in the adjudication of a complaint. In most cases, the dealer will support a sale with the supplying of a discount, but they will hardly ever specify the contents of the discount.
Section 56(6) confirms that full disclosure must be given and that the consumer agrees to these terms of acceptance.
The above rules regarding refunds do not apply if:
(a) The consumer was specifically told that the particular goods were offered in a
specific condition (e.g. that they were in some way defective) (section 55 (6)); or
(b) The goods were altered contrary to the instructions, or after leaving the control, of
the supplier (tampered with by the consumer) (section56 (1).
The onus will be on the dealer to prove that the condition of the vehicle was agreed upon between the parties and therefore it would always be advisable to rather note down the reason for the discount. And that it forms part of the condition received, the dealer would then be able to rely on Section 56(6)
Section 56 also confirms that a consumer may return goods within 6 months after purchasing the same and became aware of a defect. This section doesn’t specify what happens after the 6 months’ even if it’s one day over the 6 months. Numerous debates were done about this argument and still no amicable outcome could have been supplied.
Conclusion
The legal position is that the remedies provided for in Section 56(2) will only be available for the first six months after delivery of the goods. After the expiry of this period, the consumer will be able to rely on the residual common-law remedies and, should harm have arisen from the “defect “in the goods, a claim for damages under either the common law or under Section 61 of the CPA. However, the National Consumer Tribunal or court may make use of its powers in terms of Section 4(2) (b) (ii) to extend the application of Section 56(2) beyond the period of six months by making an innovative order “to that effect.
However, please bear in mind that up until now, the courts have not shown the willingness to protect consumers beyond the six-months period.
In the matter of MFC v Botha the court held in an obiter dictum that a vehicle could not be returned because the six-months period had lapsed.
Any innovative order made under Section 56(2) must be made within the constraints of the legislation and cannot afford consumers more rights than those specifically provided for in the Act.
ABOUT THE AUTHOR
Frank Maritz obtained his LLB degree from the University of South Africa. He is a Senior Legal Advisor for SEESA Consumer Protection & POPI at the Bloemfontein office and has almost 7 years of hands-on experience in Consumer Protection Legislation.