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Defective Cars and Consumer Protection: What You Need to Know

Purchasing a new car is a significant investment, and consumers rightfully expect their vehicle to be safe, reliable, and free from defects. However, despite manufacturers’ best efforts, defects can still occur whether the car is new or used. This leads to frustration, inconvenience, and potential safety risks for consumers. In such situations, it is crucial for consumers to be aware of their rights and options.

Consumer Protection Act No. 68 of 2008, as amended, (the “CPA”) 

The main aim of the Consumer Protection Act No. 68 of 2008, as amended, (the “CPA”) is to protect the consumer’s rights in South Africa. Even though consumers are aware of the existence of the CPA, not many are familiar with the actual rights relating to the return of defective or unsafe goods and what they can claim from a supplier.

Section 56 of the CPA indicates that a consumer has an implied warranty of quality against any supplier in the supply chain regardless of the specific supplier from which he purchased the goods. Section 56(2) of the CPA indicates that a consumer has the right to return goods to a supplier at the supplier’s own risk and expense and without any penalty to the consumer if the goods do not satisfy the requirements and standards contemplated in Section 55.

In terms of section 55 of the CPA, goods have to be reasonably suitable for the purposes for which they are generally intended, in good working order, of good quality, free of any defects, and useable and durable for a reasonable time.

In the instance that a consumer receives any goods that do not adhere to the requirements set out in Section 55, the goods can be returned to the supplier within six months after the delivery.

The supplier must at the direction of the consumer repair or replace the failed, unsafe, or defective goods; or refund to the consumer the price paid by the consumer for the goods. If the consumer decides that the defective goods should be repaired and if the defective goods are not repaired within three months thereafter (the failure, defect, or unsafe feature had not been remedied, or a further failure, defect, or unsafe feature is discovered) the supplier is obliged to replace the goods; or refund the consumer the price paid by the consumer for the goods.

The supplier may not insist that the goods be repaired if the consumer has decided that the goods should be replaced or that he be refunded the purchase price of the goods. The supplier may also not force a consumer to purchase a more expensive model, version, or brand and must, as mentioned, cover all the costs of repairing, collecting, or replacing the defective goods. The consumer also has the right to insist on a cash refund instead of store credit or vouchers or on a replacement with something similar at no additional cost to him/her.

It should be borne in mind that the Section 56 implied warranty does not apply to ordinary wear and tear, having regard to the circumstances in which the goods are intended to ordinarily be used.

If a consumer decides to return the defective goods and request a refund of the purchase price, the supplier must refund to the consumer the price paid for the goods less any reasonable charge for the use of the goods during the time which they were in the consumer’s possession. The rights of a supplier to impose a charge if defective goods are returned to it can be found in Section 20 of the CPA and is as follows:

  • The supplier may not charge the consumer any amount if the goods are in the original unopened packaging;
  • If the goods are in their original condition and repackaged in the original packaging, the supplier may charge the consumer a reasonable amount for:-
    • using the goods during the time they were in the possession of the consumer, unless they are goods that are ordinarily consumed or depleted by use, and no such consumption or depletion has occurred; or
    • any consumption or depletion of the goods, unless that consumption or depletion is limited to a reasonable amount necessary to determine whether the goods were acceptable to the consumer.
  • In other cases, the supplier may charge the consumer a reasonable amount for necessary restoration costs to render the goods fit for restocking, unless it was necessary for the consumer to destroy the packaging in order to determine whether the goods conformed to the description or sample provided, in the case of goods that had not been examined by the consumer before delivery; or were fit for the intended purpose communicated by the consumer to the supplier.

It is important to mention that a consumer cannot return a second-hand item because it was defective or not suitable for the purpose if the consumer agreed to receive it in that condition, or was made aware of the specific defect/s.

What if the supplier does not cooperate?

The consumer can only proceed with legal action if all the avenues of recourse listed in Section 69 of the CPA have been exhausted.

Section 69 of the CPA includes:

  1. Referring the matter to the applicable industry ombud accredited in terms of Section 82(6, e.g. the Motor Vehicle Industry Ombudsman.
  2. Filing a complaint with the National Consumer Commission. The NCC may issue a notice of non-referral for frivolous complaints. The complaint may be referred to an alternative dispute resolution agent, a consumer court, or another regulatory authority. After investigation, the NCC may issue a notice of non-referral or refer the matter to the National Prosecuting Authority for alleged offenses.
  3. Referring the matter to the National Consumer Tribunal directly.
  4. Referring the matter to the consumer court within the jurisdiction.
  5. Once all these options have been exhausted, a consumer can approach a relevant court of law with jurisdiction over the matter.

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Buying a defective car can be a frustrating experience, but consumers have rights and legal protections to help them seek recourse. If you are dealing with a defective car it is advisable to seek legal guidance to ensure your rights are protected.

Please note that the information provided in this blog post is general in nature and should not be construed as legal advice. For specific legal guidance, we encourage you to reach out to our team of experienced attorneys.

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