Purchasing a vehicle can be a daunting and overwhelming task at best, without having the additional concern of buying a defective vehicle and having no remedies to your disposal.

Many people then choose to approach a seemingly reputable second-hand car dealership, rather than a private seller.

When you become aware that the vehicle is defective, what are the steps that you can take?

Private Seller vs Car Dealership

When purchasing a vehicle from a private seller, the Consumer Protection Act (“CPA”) will not apply to the transaction and the CPA will not afford you protection. You will subsequently only be able to rely on the common law. When you purchase a vehicle from a car dealership who sells vehicles in the ordinary cause of their business, the CPA will apply to the transaction and will offer you a limited amount of protection.

If you, as a consumer purchase goods, there is an implied warranty that the thing sold to you, is free from any defects.

Consumers often approach us with a contract which they signed, which provides for the sale being “voetstoots”, meaning the goods are bought “as is” and the consumer cannot rely on the implied right to a defect free product, and therefore waives his rights to later on lodge a complaint that the product is defective.

For the purpose of this article we will assume that the consumer bought a second-hand vehicle from a car dealership who sells vehicles in the ordinary cause of business.

Provisions of the CPA

The CPA contains certain prohibitive provisions that prevents a car dealer, or the supplier, from entering into a sale agreement with a consumer that contains provisions that is in direct contradiction to the CPA, and directly or indirectly waives or deprives a consumer of a right that he has under the CPA. The supplier cannot avoid or set aside the effect of any provisions as contained in the CPA.

As stated above, the CPA does contain an implied warranty of quality on which consumers can rely. In this scenario, there is an implied provision that the distributor and the retailer each warrant that the vehicle is safe and of good quality.  It is very important to note that this warranty is valid for a period of 6 months.  The 6 months period is calculated from the date of delivery of the vehicle to the consumer. During this period the consumer may return the vehicle to the supplier without penalty and at the risk and the expense of the supplier, if the vehicle failed to satisfy the requirements and standards under the warranty.

In such an instance the supplier would, subject to the establishing that the vehicle is defective, be compelled to replace the vehicle, alternatively refund the consumer the price paid by the consumer for the vehicle.

Conclusion

A dealership cannot contract its way out of the obligations imposed on it under the CPA. The supplier remains liable to advise the consumer that the vehicle is offered in a certain condition and point out the obvious and not so obvious defects. If the consumer proceeds to purchase the vehicle after the condition was thoroughly pointed out, the sale would proceed “voetstoots”.

On this note, we would also advice a client to inspect the vehicle thoroughly and be wary of purchasing a vehicle before physically seeing and conducting an inspection together with the dealer.

The consumer must expressly agree to accept the goods in the condition that it currently holds. The implied warranty will only fall away, once the consumer knowingly acted in a manner consistent with accepting the vehicle in a less that ideal condition.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.