In recent times, auctions have become a popular means of buying and selling goods. Online auction platforms have been streamlined and become more trustworthy, and as a result, contributed to the popularity of this type of trade. The reality for the consumer is that it is not always possible to inspect the goods beforehand.
Many consumers shop for bargains listed on auction platforms, and when delivered to their doorstep, the defect becomes apparent when used.
Can the seller (auction house) rely on a voetstoots clause and be immune against Section 55 of the Consumer Protection Act (CPA)?
The question is discussed in the assertion that the auction house has complied with all the rules and regulations set out by the CPA and ECTA and the conditions of sale applicable to the auction contain a voetstoots-clause.
Section 55 (2) of the CPA states that every consumer has the right to receive goods that: are reasonably suitable for the purpose for which they were generally intended, are of good quality, in good working order and free of any defects. It also states that the goods will be usable and durable for a reasonable period, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply.
Section 56 of the CPA states that implied warranty of quality that the goods comply with the requirements of section 55, and 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.
However, there is an exclusion to the abovementioned protection the CPA affords consumers, and that is the following;
Section 55 (1) of the CPA does not apply to goods bought at an auction, as contemplated in Section 45.
Therefore, as a result of this exclusion – goods sold at an auction may be sold on a voetstoots basis, and the consumer does not have any warranty against defects.
In terms of Section 61 of the CPA, the seller (auctions house) will, however, lose its immunity if the seller makes any fraudulent or deliberate misrepresentations and therefore can then be held liable for damages caused by defective goods.
Section 41 of the CPA, read together with regulation 24 (m), which prohibits an auctioneer from knowingly misrepresenting the value, composition, structure, character, quality or manufacturer of the goods on auction.
It is important to remember that the consumer still has the right to inspect the goods beforehand. CPA Regulation 28(5) says that the auctioneer must afford consumers a reasonable time and opportunity to inspect the goods on offer prior to the commencement of an auction.
Therefore, the purchaser should always familiarise themselves with the rules, terms and conditions of an auction and gather as much as possible information on the goods on offer before entering into an auction sale agreement. The seller should refrain from any false, misleading or deceptive representation regarding the goods advertised for auction.
Contact your nearest SEESA office for Consumer Protection and POPI assistance. Alternatively, leave your contact details on our website for a legal advisor to contact you.
About the Author:
Douw Krüger started his career at SEESA in 2015 and is currently a Consumer Protection- and POPI legal advisor at SEESA’s Kimberly branch. He obtained his LLB degree in Law and Advance Certificate in Labour Law at the University of the Free State. Douw also has in depth practical experience in BEE- and Labour legislation.
References:
- Consumer Protection Protection Act No.68 of 2008;
- Consumer Protection Act, 2008 Regulations;
- Electronic Communications and Transactions Act 25 of 2002;
CGSO – Consumer Goods & Services OMBUD Advisory Note 16: Auctions.