Section 56 (2) of the Consumer Protection Act, No 68 of 2008 reads as follows:
“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 and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55 (Consumers rights to safe, good quality goods) and the supplier must, at the direction of the consumer, either:
- Repair or replace the failed, unsafe, or defective goods, or
- Refund to the consumer the price paid by the consumer for the goods.”
This protection is granted to the consumer over and above the common law or normal contractual claim in case of breach of agreement. A consumer could in certain circumstances have three separate potential claims available to him/her in a dispute with a service provider. Those claims could be 1; in terms of the CPA, 2; in terms of the common law and/or 3; in terms of a manufacturer’s warranty; provided that that dispute relates to unsafe, damaged, or defective goods or services. .
It is important to note the protection in terms of the Section 56 of the CPA is at the direction of the consumer. It is usually a simple issue if the consumer chooses a repair to have the item repaired at the cost of the service provider. The question then is: when is the vehicle defective or damaged, to such an extent that one is entitled to a replacement vehicle or a full refund?
The real confusion arises however as to when and in what circumstances one is entitled to a replacement item or a full refund.
The answer is not a simple one.
In our view; if the vehicle has only one problem or defect; and that item can be easily repaired or replaced without affecting the integrity of the entire vehicle; then clearly only that item need be repaired or replaced; and one cannot insist on a replacement vehicle or a refund. For example, if the clutch plate is defective and the clutch mechanism can be easily replaced by the dealer then that is what should and will happen; and one cannot insist on the right to a replacement vehicle or a refund of the full purchase price.
Common sense must prevail.
However, if the vehicle has numerous and varied problems and the sum of those problems allow for an objective finding that the vehicle is indeed materially defective or damaged; then clearly the vehicle itself is defective and one can then legally insist on a replacement or a refund in full. This also applies, in our view, to vehicles that have previously been involved in a serious accident and this fact was not disclosed to the purchaser at the time of the sale. This right to cancel would then not necessarily devolve to the consumer because of the CPA alone; but would also have a strong basis in our common law.
To sum up; therefore, and particularly when we are dealing with big budget items; that have many and varied parts; although the CPA gives the consumer the choice of repair, replace or refund; common sense must prevail. A consumer cannot because of a minor problem with one part only, that can easily be repaired or replaced, insist on a replacement or a cancellation of the entire deal and a refund.
Each case will however have to be judged on its own merits. Clearly also the type of damaged or defective part involved, or its integral role to the integrity of the entire item; will play a major role in the decision based on common sense and an interpretation of the law.
The CPA also applies to all unsafe, damaged, and defective goods; provided they are bought from a supplier acting in the ordinary course of his business.
The consumer’s choice in terms of section 56(2), of “repair, refund or replace” in respect of damaged or defective goods is in addition to; and over and above the manufacturer’s warranty; and also, in addition to, and over and above, any common law remedies that may have; for example, where latent defects were deliberately not disclosed to us by a supplier.
If a consumer has an unresolved complaint against a supplier, the consumer may first attempt to have it resolved by means of making use of the RMI’s consumer dispute resolution service and if the mediatory process fails, the dispute resolution process provided for by the Motor Industry Ombudsman of South Africa, in terms of the South African Automotive Industry Code (published under the Consumer Protection Act).
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Legalex (Pty) Ltd, registration number 2003/003715/07, is an authorized Financial Services Provider (FSP 5277) and underwritten by Guardrisk Insurance Company Limited (FSP 26/10/75)