“The Consumer Protection Act 68 of 2008 (CPA) establishes a broad and comprehensive scope for consumer protection. Its purview includes developing and maintaining a consumer market in such a way as to ensure fairness, accessibility, effectiveness, sustainability and responsibility for the benefit of consumers” (Extract from judgment below)
You drive your brand-new car home, eager to take the family out for a first spin. Happiness! Until suddenly the car won’t start, or you notice a funny rattling noise, or you notice rust, or … it could be anything, because although “brand new” should in theory mean “free of defects”, that’s not always so in the real world.
You return to the dealership and demand a refund, or a replacement, or at least a courtesy car and a repair. “Nope, sorry” says the dealership, “there’s nothing wrong with it/the warranty doesn’t cover it/it’s not our problem/blah blah blah” – what can you do?
Step One: Exhaust the CPA’s dispute resolution processes
- A motorist’s brand-new VW Polo Vivo wouldn’t start after it was delivered to her. It was towed to the dealership which reported that it was in working order and not defective.
- A few days later it again wouldn’t start, instead making a “clack clack noise”. The problem was diagnosed as a loose fuse pin and fixed, but the buyer refused to take the car back and gave notice of cancellation of the sale.
- She then lodged a complaint with the Motor Industry Ombudsman of South Africa, which said it couldn’t support her expectation that the supplier must cancel the deal. Off to the High Court went the buyer.
- The Court refused her application for a new car or a refund on the basis that she hadn’t first exhausted all “internal remedies” before approaching a court. Specifically, she should have followed the comprehensive dispute resolution mechanisms set out in the Consumer Protection Act (CPA) – sure, she had approached the applicable industry Ombud, but she hadn’t lodged a complaint with the National Consumer Commission, nor had she approached a Consumer Court, the National Consumer Tribunal or an authorised alternative dispute agent.
- The lesson: Exhaust all other remedies as set out in the CPA before going to court!
Step Two: Heigh Ho Heigh Ho It’s Off to Court We Go
Finding extensive rust in his brand-new Ford Everest, the buyer demanded that the dealership repair it. The dealership refused, claiming that the buyer had spilt pool acid in the car. After unsuccessfully approaching the Motor Industry Ombud (unsuccessful because the dealership declined to cooperate with the Ombud’s investigation), the buyer ended up before the National Consumer Tribunal, which ordered the dealership to remove the rust.
In this case it was the dealership and not the buyer that went to court, with the dealership appealing the Tribunal’s order in the High Court.
The Court rejected the appeal and upheld the Tribunal’s rust removal order on the basis that –
- The CPA gives every consumer the right to receive goods that “are of good quality, in good working order and free of any defects”.
- The vehicle was defective at date of sale, and it was irrelevant that the vehicle was still functional and fulfilling its intended purpose of transporting the buyer “from Point A to Point B”– which it had successfully done for 3 years and 170,000 km before this case reached court. As the Court put it, “it is not meant to have a rusting or corrosion on any of its parts as a new vehicle … one can say that the vehicle is less acceptable and unsafe than people generally would reasonably be entitled to expect from the goods of that type, a brand-new car. This indicates a defect in the vehicle.”
- It is for you as buyer in such a case to prove that the defect existed at the time of the sale and that you were unaware of it. In this case, the rust was a latent defect (being hidden under a carpet) and as the buyer was no car expert, it was irrelevant that he had signed a pre-delivery inspection form confirming that there was no problem with the car.
- The Court accordingly found that the buyer had succeeded in proving what he needed to, and the dealership must “remove the rust and repair the Respondent’s car back to the standard it should have been if there was no rust”.
Insist that your brand-new car is free of defects and remember we can help you with specific advice and assistance if it isn’t.
Disclaimer: The information provided herein should not be used or relied on as 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 professional adviser for specific and detailed advice.
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