Repair, replace or refund

WILLIAM GEORGE explores how the Consumer Protection Act (CPA) protects buyers of used vehicles and what they should look out for when purchasing a “voetstoets” used vehicle.

The Consumer Protection Act (CPA) is aimed at regulating sales agreements and protecting consumers. The CPA further promotes fair business practices, in essence ensuring consumers are satisfied with the goods they purchase.

The CPA states: “Every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended; are of good quality, in good working order and free of any defects and will be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put, and to all the surrounding circumstances of their supply.”

With a shove of the foot

The “voetstoots” clause has been a prickly subject in the sales agreement, because it works in favour of the seller and not the buyer. This clause is still widely used, mostly by salesmen whose aim is to not be responsible for any defect that the buyer may notice at a later stage.

A vehicle sold “voetstoots” would imply that the buyer accepts the condition of the vehicle as is. Under these circumstances the buyer cannot claim repair costs, or request the seller to repair the vehicle at a later stage.

Ensuring fair business practice

Happily, since the inception of the CPA, things have been different. The CPA works in conjunction with the Constitution of South Africa to strengthen the law and to promote and protect the economic interests of consumers.

Shamon Gounden, legal advisor at SEESA, explains that the seller can no longer hide behind the term “voetstoots”.

“The CPA provides that every sale falling within its scope will have an ‘implied warranty of quality’. As a result, the goods will be sold with the expectation that they are of good quality, in good working order and free of any defect,” he says.

The introduction of Chapter 2: Fundamental Consumer Rights of CPA, in 2008, made it feasible for buyers to return any faulty vehicles to the seller within six months of the sale.

It is important to note that the CPA does not specifically mention or instruct how sales of used vehicles should be carried out, but covers the protection and rights of consumers in a general scope.

However, Section 55(6) allows sellers to get away without any liabilities over sold vehicles, but only in cases where the buyer has been expressly informed that particular goods were offered in a specific condition, or the buyer has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.

Buyers of vehicles with defects have responsibilities to prove their case, and would have to provide evidence that the vehicle is defective. The defect should be the reason for the vehicle not being able to operate for its intended purpose.

However, since the buyer would have already been using the vehicle, they will be charged for this usage, and for any other charges which may arise if damage was inflicted on the used vehicle since the date of purchase.

Since the CPA aims to ensure fairness in agreements, the seller can choose whether to repair or replace the vehicle, or refund the buyer.

Ronald Melville, national used sales manager at Scania South Africa, says while it is rare in the truck industry, it happens from time to time that a buyer returns a vehicle.

Melville explains: “We normally swop the truck out with another one. We carry our own warranty so normally the customer’s truck gets repaired as quickly as possible.

“We sell according to our customers’ requirements. We have upgraded our trade-in process and vehicles that are traded in must meet our return conditions. Vehicles that we do not believe to be good enough are sold off to the trade, thus reducing risk to Scania`s name and reputation.”

In order to ensure that customers are satisfied with their purchase of used vehicles, Melville advises them to undertake research on the type of vehicle they need to ensure that they purchase the right vehicle for their specific application.

He says: “In order to get a better idea of the basic condition of the vehicle, the purchaser should take it for a decent test drive to get it to a proper operating temperature and then, after the test drive, inspect for oil, fuel and water leaks.”

Melville concludes: “Buyers should also find out what kind of operation the vehicle came from and if there is a proper, up-to-date service history.”