No, there is no such thing as selling goods voetstoots or ‘as is’

Have you ever regretted buying something, but felt that you had no recourse after being told it was sold voetstoots or “as is”?

Well, it turns out, the idea of buying something voetstoots or “as is” isn’t really allowed, because these kinds of transactions are not in line with the Consumer Protection Act. Suppliers are not allowed to sell goods without any form of liability for any defects, while a voetstoots clause in an agreement is also prohibited.

The voetstoots (“as is”) clause was often used before the Consumer Protection Act (CPA) came into effect in 2011, and was used to exempt a seller from liability when goods had latent defects, unless the buyer shows that the seller knew about the latent defect and did not disclose it to the buyer in advance.

A latent defect is a fault in goods that you would not discover in a reasonably thorough inspection before buying it.

Consumers often complain that, especially car dealers, often refuse to honour the implied warranty of six months for second hand cars, saying the consumer bought it voetstoots.

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Why can goods not be sold voetstoots?

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, but in practice and in most transactions the parties do not have equal bargaining power and the stronger party, usually a business, can exclude itself from certain legal obligations with disclaimers, indemnities and exemption clauses.

Although there was an initial debate about whether voetstoots clauses apply to consumer transactions that the CPA applies to, the National Consumer Tribunal has 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.

The only exceptions are where the goods are sold by auction, when it was altered after the sale, and where the consumer was expressly informed that particular goods were offered in a specific condition and either expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition after the seller 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.

ALSO READ: Your rights when buying a car at an auction

The Consumer Protection Act

Consumers have the right to safe goods of good quality according to Section (55)(2) of the CPA.

This provides that goods must be:

• Reasonably suitable for the purpose they are generally intended or suitable for any specific purpose which was communicated to the supplier.
• Of a good quality, in good working order and free of defects.
• Useable and durable for a reasonable period of time.
• comply with any other legislation which regulates their quality.

Section 55(3) also provides that consumers have the right to expect that the goods are reasonably suitable for the specific purpose the consumer has informed the supplier of.

The ombudsman says in an advisory note 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.

Should the defect become evident within six months after delivery, the consumer can return them, at the supplier’s risk and expense and demand without penalty a refund, replacement, or repair. The choice is the consumer’s.

Although Section 55(6) of the CPA allows a supplier to escape liability for defects that were brought to the attention of the consumer, providing that this clause may not be on terms that are unfair, unreasonable, or unjust and must be interpreted against the seller taking into account what a reasonable person would expect, Sections 51 and 2 shows that there is no place for voetstoots in transactions falling under the CPA.

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Sellers not allowed to opt out of CPA

According to Section 51, a supplier is not allowed to enter into a transaction or agreement subject to any term or condition if its general purpose or effect is to defeat the purposes and policy of the CPA, mislead or deceive the consumer or subject the consumer to fraudulent conduct.

It is also not allowed if it directly or indirectly claims to waive or deprive a consumer of a right in terms of the CPA, avoid a supplier’s obligation or duty in terms of the CPA or set aside or override the effect of any provision of the CPA.

Section 2(10) further 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. Section 56(4) also provides that the implied warranty of quality is in addition to any other warranty in terms of the common law.

The ombudsman says in the practice note that a supplier can sell gods in a particular condition in terms of Section (55)(6), but this would require that the quality and defects of the goods must be described in detail to the consumer. If seller points out a defect before the sale and the consumer buys the goods, the consumer cannot hold the seller liable for that defect.

This is in line with one of the philosophies that underpins the CPA, that a consumer is bound by an agreement that was entered into after getting sufficient truthful and accurate information to enable him to make an informed choice.

However, if a contract contains exclusions, restrictions, limitations or deprivations, these clauses must still comply with certain provisions of the CPA. According to Section (4)(4)(b) of the CPA, a contract, standard form or document containing a restriction, limitation, exclusion or deprivation of a consumer’s rights must be interpreted to the benefit of the consumer.

Section 48(1)(c) further provides that a supplier is not allowed to require consumers to waive any of their rights, waive the liability of a supplier, or assume any obligations on terms that are unfair, unreasonable or unjust.

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