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Used car dealers often try to use the excuse for selling you a car full of defects by saying they sold the car “voetstoots” or “as is” and that you knew you bought an “old” car and you should expect these cars to have defects.
They even try to use this as a defence at the National Consumer Tribunal, but the Consumer Protection Act (CPA) is clear about this: it is not allowed and the Tribunal declared this in many cases as “prohibited conduct”.
Buying a car voetstoots is not in line with the CPA, which means that used car dealers are not allowed to sell goods without any form of liability for any defects, while a voetstoots clause in an agreement is also prohibited.
A voetstoots clause was used before the CPA came into effect in 2011 to exempt a seller from liability when goods had latent defects, unless the buyer could prove that the seller knew about the latent defect and did not disclose it to defraud the buyer.
A latent defect is a fault in a car that you would not discover in a reasonably thorough inspection before buying it.
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According to the Ombudsman for Consumer Goods and Services, the thinking behind this approach was that it is a voluntary agreement between two competent parties with full understanding.
However, in practice and in most transactions the parties do not have equal bargaining power and the stronger party, usually the used car dealer, can exclude itself from certain legal obligations with disclaimers, indemnities and exemption clauses.
Initially there was debate about whether voetstoots clauses apply to consumer transactions that the CPA applies to but the Consumer Tribunal since ruled that a voetstoots sale does not apply to any transactions falling under the CPA and that this kind of sale is also not allowed in terms of Section 5 of the CPA.
The only exceptions are for cars sold on auction, when the car was altered after the sale and where the used car dealer expressly informed the consumer that a particular car is offered in a specific condition and the consumer expressly agreed to accept the car in that condition, or knowingly accepted the car in that condition after the used car dealer informed him of particular defects.
Apart from the exception of goods bought on auction, the only other exclusion is where the consumer is an entity with an annual turnover exceeding R2 million, as the CPA does not apply to small businesses with a higher turnover.
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According to section 55(2) of the CPA, you have the right to safe goods (and cars) of good quality that must be:
This means that you must be able to drive the car and not get stuck on the side of the road.
In addition, section 55(3) provides that you have the right to expect that the used car is reasonably suitable for the specific purpose you told the used car dealer about. If you told the used car dealer that you are buying the SUV to travel from South Africa to Cairo and it breaks down as you pass Pretoria, the dealer cannot say you were using the car too much.
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The ombudsman says that these rights are created as an implied term in any transaction or agreement regarding the supply of goods to a consumer that the producer or importer, distributor and retailer each warrant that the goods comply with all these requirements. This includes used car dealers.
If the used car breaks down within six months after you bought it, you have the right return it at the dealer’s risk and expense and demand a refund, replacement, or repair without any penalty. You choose if you want a refund or another car for the same value or if the used car dealer must repair the car.
Although section 55(6) of the CPA allows the dealer to escape liability for defects that were brought to your attention, this behaviour from the used car dealer must not be on terms that are unfair, unreasonable, or unjust.
The used car dealer must also keep in mind what a reasonable person would expect.
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According to section 51, a used car dealer is not allowed to include a clause in any transaction or agreement that aims to defeat the purposes and policy of the CPA, mislead or deceive the consumer or subject the consumer to fraudulent conduct.
That means that the used car dealer is not allowed to directly or indirectly waive or deprive you of your consumer rights in terms of the CPA or avoid his obligation or duty in terms of the CPA or set aside or override the effect of any provision of the CPA.
Section 2(10) also provides that no provision of the CPA may be interpreted as excluding a right that a consumer would have in terms of the common law, while section 56(4) also stipulates that the implied warranty of quality is in addition to any other warranty in terms of the common law.
Therefore, the used car dealer cannot say that he already guarantees the car for two years and that the terms and conditions of that guarantee apply.
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The ombudsman also says in the practice note that a used car dealer can sell a car in a particular condition in terms of section (55)(6), but this would require that he gives you a detailed account of the quality and defects of the car.
This means that if the used car dealer points out a defect before the sale and you still buy the car, you cannot hold the dealer liable for that specific defect.
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