Consumer Rights When Buying a Defective Car in South Africa: Dealer vs Private Sale

 

Introduction 

Purchasing a car is a significant investment and discovering that your new vehicle is defective can be frustrating. In South Africa, the Consumer Protection Act (CPA) offers protection for consumers facing such issues, but the level of protection differs depending on whether you bought from a dealer or a private seller. 

Buying from a Dealer 

When purchasing a vehicle from a car dealership that sells vehicles in the ordinary course of business, the CPA applies to the transaction and offers you protection. 

Rights Under the CPA 

• Implied Warranty of Quality: Section 56 of the CPA provides an implied warranty that the vehicle is of good quality, in working order, and free from defects.
• Six-Month Return Period: Within six months of delivery, you can return the vehicle to the dealer without penalty if it fails to meet quality standards.
• Choice of Remedy: You can choose to have the vehicle repaired, replaced, or refunded.
• Three-Month Repair Warranty: If a repair is done and the same defect occurs within three months, you're entitled to a replacement or refund.
• Right to Safe, Good Quality Goods: Section 55 guarantees your right to receive goods that are reasonably suitable for their intended purpose.
• Dealers can no longer sell cars "voetstoots" (as-is) under the CPA. They must disclose all known faults and cannot avoid liability for defects.

 Buying from a Private Seller 

When purchasing from a private seller, the CPA does not apply, and your rights are more limited. 

Common Law Protections

• Latent Defects: You may have recourse if the seller knowingly concealed defects.
• "Voetstoots" Clause: Private sellers can still use this clause, which means you buy the car "as-is".
• Fraud: If you can prove the seller deliberately misled you, you will have legal recourse. 

Recent South African Case Law 

1. Toyota Randburg v. Ndlovu (2021)

• Facts: Ndlovu's second-hand BMW engine seized four days after purchase.
• Outcome: Court found in favour of Ndlovu, stating it was unreasonable for a vehicle to fail so soon after purchase.
• Key Point: The onus was on Toyota to prove the failure wasn't due to a defect. 

2. Motus Corporation (Pty) Ltd v Wentzel (2021)

• Facts: Wentzel's new car had multiple issues, including warning lights and noise.
• Outcome: Court confirmed the issues amounted to a defect under the CPA.
• Key Point: Supplier must be given an opportunity to repair before a refund can be demanded. 

3. Lazarus Motor Company v Robert (2024)

• Facts: Robert found rust in his new Ford Everest.
• Outcome: Court ordered the dealership to remove the rust and repair the car.
• Key Point: A car can be considered defective even if it's still functional for transportation. 

Relevant Sections of the CPA 

·        Section 53: Definition of "Defect"

·        A defect is defined as any material imperfection that renders the goods less acceptable than a person would reasonably expect in the circumstances. 

·        Section 55: Consumer's Rights to Safe, Good Quality Goods

·        This section outlines the standards that goods must meet, including being reasonably suitable for their intended purpose and of good quality. 

·        Section 56: Implied Warranty of Quality

·        This provides a six-month warranty on all goods sold, allowing consumers to return defective goods for repair, replacement, or refund. 

·        Section 69: Dispute Resolution

·        This section outlines the steps consumers must take before approaching a court, including exhausting all other remedies provided in the CPA. 

Steps to Take If You've Bought a Defective Car 

• Document the Issues: Keep detailed records of all problems and communications with the seller.
• Notify the Seller: Inform the dealer or private seller of the defect immediately.
• Request Remedy: For dealer purchases, request repair, replacement, or refund as per the CPA.
• Follow Dispute Resolution Process: If dealing with a dealer, follow the CPA's dispute resolution process:

• Lodge a complaint with the Motor Industry Ombudsman of South Africa (MIOSA)
• If unresolved, approach the National Consumer Commission
• Consider the National Consumer Tribunal or Consumer Court

• Seek Legal Advice: If all else fails, consult with a lawyer specialising in consumer law. 

Conclusion

The CPA provides strong protections for consumers who purchase defective vehicles from dealers. However, these protections are limited when buying from private sellers. Recent case law has reinforced consumers' rights under the CPA, particularly regarding what constitutes a defect and the remedies available. Always thoroughly inspect a vehicle before purchase and be aware of your rights and the proper procedures for addressing issues that may arise.