Msizi Mhlongo | SchoemanLaw Inc  

Category:  Litigation and Alternative Dispute Resolution 

Introduction: 

It is all too common for members of the public to purchase a vehicle from a dealer only to find out that there a lot of problems with the vehicle. A used vehicle is a double-edged sword that can either save you money or become an expensive nightmare. There are rights and remedies against unscrupulous dealers who sell defective vehicles to unsuspecting buyers, in terms of the Consumer Protection Act 68 of 2008 (”the CPA”).  

The Consumer Protection Act: 

Section 55(2) of the CPA states that except for goods purchased at an auction, 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, 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, comply with any applicable standards set under any public regulation. 

Section 56 of the CPA states that 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, 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. 

If a supplier repairs any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must replace the goods, or refund to the consumer the price paid by the consumer for the goods. 

If a consumer has exercised, asserted or sought to uphold any right set out in the CPA or in an agreement or transaction with a supplier, the supplier must not, in response discriminate directly or indirectly against that consumer, compared to the supplier’s treatment of any other consumer who has not exercised, asserted or sought to uphold such a right, or penalise the consumer, or alter, or propose to alter, the terms or conditions of a transaction or agreement with the consumer, to the detriment of the consumer, or take any action to accelerate, enforce, suspend or terminate an agreement with the consumer. 

Motor Vehicle Industry Ombudsman: 

If a consumer returns a defective vehicle and the supplier refuses to repair it or refund the purchase price, the consumer may refer the matter to the Motor Vehicle industry ombudsman for alternative dispute resolution. If the ombudsman concludes that there is no reasonable probability of the parties resolving their dispute through the process provided for, the agent may terminate the process by notice to the parties, whereafter the party who referred the matter to the agent may file a complaint with the National Consumer Commission (”the Commission”) in accordance with section 71 of the CPA. 

National Consumer Commission: 

When a complainant refers a matter to the Commission, according to Section 72 (1) of the CPA, it may issue a notice of non-referral if the complaint appears to be frivolous or vexatious, if it does not allege any facts which, if true, would constitute grounds for a remedy under this Act, or is prevented, in terms of section 116, from being referred to the Tribunal. 

The Commission may further refer the complaint to an alternative dispute resolution agent, a provincial consumer protection authority or a consumer court for the purposes of assisting the parties to attempt to resolve the dispute in, unless the parties have previously and unsuccessfully attempted to resolve the dispute in that manner, or, refer the complaint to another regulatory authority with jurisdiction over the matter for investigation, or, direct an inspector to investigate the complaint as quickly as practicable, in any other case. 

In terms of Section 73 of the CPA, after concluding an investigation into a complaint, the Commission may issue a notice of non-referral to the complainant in the prescribed form, or refer the matter to the National Prosecuting Authority, if the Commission alleges that a person has committed an offence in terms of the CPA.  

National Consumer Tribunal and Consumer Court: 

If the Commission refers a matter to a consumer court, any party to that referral may apply to the Tribunal, in the prescribed manner and form and within the prescribed time, for an order that the matter be referred to the Tribunal. If an application has been made to the Tribunal, the Tribunal may order that the matter be referred to it instead of the consumer court if the balance of convenience or interests of justice so require. 

A consumer court hearing a matter must conduct its proceedings in a manner consistent with the requirements applicable to hearings of the Tribunal, and, may make any order that the Tribunal could have made after hearing that matter. An order of a consumer court made after hearing a matter referred to in terms of this section has the same force and effect as if it had been made by the Tribunal 

Section 75(1)(b) of the CPA states that if the Commission issues a notice of non-referral in response to a complaint, other than on the grounds contemplated in section 116, the complainant concerned may refer the matter directly to the Consumer Court, if any, in the province within which the complainant resides, or in which the respondent has its principal place of business in the Republic, subject to the provincial legislation governing the operation of that consumer court, or, to the National Consumer Tribunal (”the Tribunal”), with leave of the Tribunal.  

Conclusion: 

Consumers must take note that, in accordance with the provisions of the CPA, when purchasing, inter alia, a preowned vehicle, they are provided with specific rights in relation to the vehicle being purchased. 

These rights include the right to receive a vehicle of good quality, in working order, free of any defects and to be clearly informed should the vehicle be rebuilt or reconditioned in any manner or form whatsoever. For further information and guidance on this matter, please contact Schoemanlaw Inc.  

Msizi Mhlongo | SchoemanLaw Inc 

Attorney  

https://schoemanlaw.co.za/our-services/civil-litigation-and-alternative-dispute-resolution/