RIGHTS OF A CONSUMER WHO BUYS A SECOND-HAND MOTOR VEHICLE
RIGHTS OF A CONSUMER WHO BUYS A SECOND-HAND MOTOR VEHICLE
Introduction
Some of the introductory remarks on the then Consumer Protection Bill state that: “the law has protected consumers for centuries: Roman law provided warranties against latent defects in the sale of goods and slaves and even the Magna Carta required uniformity of measures of wine, corn, and cloth”. The protection of consumer’s rights is a long-standing notion that is being advanced unceasingly to cater to the ever-changing circumstances of the trade.
The exhilaration accompanied by purchasing a motor vehicle (“car”) can surpass the fundamental necessity to scrutinize the car and secure warranties before taking ownership thereof. This oversight becomes even more costly in a case of a second-hand car which is more susceptible to having defects.
Consumer rights are found in different statutes crafted in various ways from different contexts, however, the Consumer Protection Act 68 of 2002 (“CPA”) is very deliberate about its purpose which is to remove the power from the big players in the consumer market which allowed them in the past to bully the poor consumers who could not afford, financially, to take on the big players by way of litigation no matter how strong their case was.
It is prevalent that when consumers report defects shortly after concluding the sale agreement, they are met with hostility when they seek assistance from the sellers. While a mechanical professional would advise consumers on what to look out for in a car, this article deals with some of the rights and responsibilities of consumers who purchase second-hand cars.
What is the required standard of Goods sold to Consumers?
Section 55 of the CPA deals with the consumer’s rights to safe and quality goods, but the section does not apply to goods bought at an auction, as contemplated in section 45. Unless the consumer has been expressly informed that the goods were offered in a specific condition and has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition, the CPA provides that a consumer has a right to purchase goods that are-:
- 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;
- 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; and
- comply with any applicable standards set under the Standards Act, 1993 (Act 29 of 1993), or any other public regulation.
Some of the second-hand cars were involved in accidents and the quality thereof diminished. In this instance, consumers are advised to ensure that the sale agreement contains the Additional Disclosures and Repair Clause. While the consumer may confirm that the car has defects the parties may agree that the seller would be responsible for the repairs and/or maintenance thereof.
It is trite to say that the consumer should do an extensive inspection before they take delivery of the motor vehicle which was involved in an accident to avoid future legal disputes that might arise from an incessant crumbling cake that digs deeper in the pocket. Consumers must ensure that a Certificate of Roadworthiness is issued accordingly before taking delivery.
Does the consumer limit their right to safe and quality goods when they accept a second-hand motor vehicle?
The straight answer is yes, however, the consumer can cover themselves by ensuring that the contract of sale makes provision that the seller will be responsible for the repairs and/or maintenance related to such defects. By doing so, the consumer is indirectly benefiting from the provisions of section 55 in terms of the required standard of quality of goods and safety. Furthermore, the issuing of a credible Roadworthiness Certificate would be an indicator that the defects thereof are not material and gives the motor vehicle the automatic warranty. The CPA defines “defect” as—
(i) any material imperfection in the manufacture of the goods or components, or performance of the services, that renders the goods or results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or
(ii) any characteristic of the goods or components that renders the goods or components less useful, practicable, or safe than persons generally would be reasonably entitled to expect in the circumstances.
The court in the case of Vousvoukis v Queen Ace CC t/a Ace Motors (3878/2013) [2015] ZAECGHC)
“A reasonable person in the plaintiff’s shoes, being aware that he was purchasing a second-hand motor vehicle, albeit an expensive one, for a price very considerably less than a new motor vehicle of that make would have been conscious of the fact that it might experience mechanical problems from time to time which was not to be expected in a brand new motor vehicle of that make.
Therefore, the CPA does not place liability on the supplier where the consumer knowingly accepts a product of a less standard/ quality and reconciles that it might not be safe for use but continues with the transaction, irrespective. The consumer’s confidence rests on ensuring that the motor vehicle is inspected and ensuring that the seller will be responsible for financial costs related to the repairs and or/ maintenance of the defects. Cars purchased from an auction are also not protected under section 55 of the CPA.
Conclusion
When a consumer buys a second-hand car, they are accepting a possibility of future mechanical problems that might occur buy they reconcile that thought. It is of paramount importance to do a proper inspection of the car, if possible, get an expert to assist with the inspection so that one can minimize the risk of buying a very defective car. The CPA recognizes the consumer’s willingness to take the risk either to save money or for whatever reason when buying a second-hand car, as a result, the rights to safe and quality goods are limited because of the high possibility of defects related thereto.
N Ngada
Founder and Managing Director - Ngada Attorneys