“I bought a second-hand car from a dealership about three months ago. The last week I’ve noticed that the engine sounds terrible. I asked a mechanic to have a look at it and according to him the engine is shot and needs a complete overhaul, which will be very expensive, the dealer said nothing about the engine being in such bad shape. But it is a second-hand car, so I’m not sure if I can return it or have the dealer fit it properly?”

Consumers have rights and these rights are governed by statutory provisions found in the Consumer Protection Act of 2008 (“CPA”). The Act clearly spells out the rights of consumers and the responsibilities of suppliers of goods or services.

The Act focuses on consumer protection by aiming to “promote a fair, accessible and sustainable marketplace for consumer products and services and, for that purpose, to establish national norms and standards relating to consumer protection“. It is the result of the Department of Trade and Industry’s (DTI) intention to “create and promote an economic environment that supports and strengthens a culture of consumer rights and responsibilities“.

The purpose of the Act is “to promote and advance the social and economic welfare of consumers in South Africa.(Section 3(1)).

The Act aims to achieve this objective through, inter alia, establishing a legal framework for maintaining a fair, accessible and efficient marketplace for consumers; reducing the disadvantages experienced in accessing goods or services by vulnerable consumers; protecting consumers from unfair trade practices; encouraging responsible consumer behaviour; promoting consumer empowerment and providing an efficient system of redress for consumers.

The CPA will apply to a transaction were, as in this case, a second-hand vehicle was purchased from a dealer for an agreed price. Importantly, a second-hand car falls within the definition of “goods” in the CPA and is thus also subject to the CPA protection against defective goods, because excluding second-hand goods from the ambit of the CPA would exclude protection for consumers who need it most.

Consumer rights

Chapter 2 of the Act introduces a formal set of consumer rights into law by referring to eight specific consumer rights, namely the right to:

  • Equality in the consumer market
  • Privacy
  • Choose
  • Disclosure and information
  • Fair and responsible marketing
  • Fair and honest dealing
  • Fair, just and reasonable terms and conditions
  • Fair value, good quality and safety.

Section 56 of the CPA provides an automatic warranty that all goods purchased comply with the requirements mentioned above in terms of the CPA.

Should the purchased goods fail to meet the requirements as set out above within six months after the purchase or delivery of such goods you have the right to return them, and insist on one of the following three remedies:

  • Have the goods repaired; or
  • Have the goods replaced; or
  • Obtain a full refund of the purchase

In general, if a consumer prefers to have the defective goods replaced or to have the purchase price thereof refunded, the supplier must comply and cannot force the consumer to have the goods repaired instead. The supplier is also liable for the costs of repairing, collecting and/or replacing the defective goods. It is important to remember that the defect of the goods must a material imperfection to qualify for one of the three remedies. The CPA will also apply regardless of the suppliers’ refund policy, unless the refund policy is more favourable towards the consumer.

In the case of second hand goods, there are exceptions to the rules regarding refunds in that they do not apply of the consumer was specifically informed of the specific defects of the particular item and the consumer still agreed to purchase the item in that condition or the goods were altered contrary to the instructions, or after leaving the control, of the dealership.

In this scenario, it is realistic to accept that the standard and condition of a new car will differ from that of a second hand car and that it is not always possible for a second-hand car dealer to point out the exact wear and tear of the car. That said, a second-hand dealer should be in a position, due to the nature of his business, to be able to point out known defects as well as bigger and obvious defects. Should any defects, other than those listed and accepted by the consumer, occur within six months after delivery of any such goods, you will have the right to insist on one of the three remedies listed above.

In this scenario, if the condition of the engine was not disclosed, it can be argued that the need for you to have to overhaul the entire engine is material and should afford you the protection and remedies provided by the CPA. The assistance of an Attorney at RANDLES INC can be helpful to assist you to motivate your claim under the CPA.

By: Narisha Rahim-Harry

Candidate Attorney