Oct 25, 2022

Does The Consumer Protection Act Afford Protection To Second Hand Purchases

The main purpose of the Consumer Protection Act No. 68 of 2008 is to protect the rights of consumers in South Africa. Although many consumers are aware of the very existence of the CPA, not many are aware of their actual rights relating to the return of defective or unsafe goods.

The Consumer Protection Act protects consumers. For this reason, it deserves to be mentioned that a consumer is a person to whom goods are sold in the ordinary course of the supplier’s business. If a person is a consumer in terms of the Act, such person will be protected by Section 55 and 56 of the Act.

Section 55 stipulates that goods have to be reasonably suitable for the purposes for which they are generally intended, of good quality, in good working order and free of any defects and should be useable and durable for a reasonable period.

Section 56(2) of the Act states that if a consumer purchases goods that do not comply with the requirements set out in Section 55, a consumer may, within six months of the purchase, return the goods to the seller at the seller’s risk and expense. The seller must, at the direction of the consumer, either repair or replace the defective goods or refund the consumer fully for the goods purchased.

A consumer who purchases second-hand or used goods will also enjoy protection from the Act except when:

  • The sale of second-hand goods by the supplier to the consumer does not fall within the supplier’s ordinary course of business. The CPA only applies when the seller is selling “in the ordinary course of business”, so “private sales” will fall outside its ambit. In other words, if you buy a movable object like a sleeper couch from a Business trader or dealer, the CPA applies and overrides the voetstoots clause. But if you buy from a private seller who sells it “Voetstoots”, the voetstoots clause applies, and you have no CPA protection. It is therefore important to diligently inspect second-hand goods bought from the average man in the street – who sold it “As is”/’Voetstoots’ – as the consumer will only have the normal civil law remedies for latent defects. Where second-hand goods are bought “Voetstoots”, it is advised to have the goods checked out by an independent expert (like an accredited motor vehicle mechanical workshop when buying a vehicle voetstoots from an individual person). Be warned that depriving a private seller (Note: Not a Business) of the protection of a voetstoots clause will never be easy, particularly since the purchaser will need to prove that the seller intended to defraud them by concealing a defect. The sale agreement must, however, clearly specify the item is sold “Voetstoots” – having this clause drafted by a legal practitioner/advisor is strongly advised;
  • The consumers purchase the goods through an auction;
  • Over six months have passed since the purchase;
  • Has been expressly informed that particular goods were offered in a specific condition;
  • Has expressly agreed to accept the goods in that condition or knowingly acted in a manner consistent with accepting the goods in that condition.

In conclusion, provided that neither of the abovementioned exceptions applies, a second-hand purchaser is afforded protection in terms of the Consumer Protection Act. To exclude second-hand goods from the protection afforded by Sections 55 and 56 of the Act would undermine the very purpose for which the Act was implemented, namely, to promote and advance the social and economic welfare of consumers in South Africa.

Want to know more about second-hand purchases? Kindly contact your nearest SEESA Consumer Protection and POPI Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.

About The Author:

Chenee Adams is a B-BBEE, Consumer Protection & Personal Information Legal Advisor at the SEESA East London branch. Chenee obtained her LLB 2017.

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