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So you bought a lemon? What do you do?

Two weeks ago we did a blog on the real-life situation where you buy a defective motor vehicle.

Over the weekend: we received an email which read as follows.

“Hugh, I did precisely that. I bought a lemon! On the 23rd January of this year; I bought a motor vehicle from a well-known dealership in Cape Town. I was very happy with my purchase during the first three months, but at the end of April, I started having transmission and gearbox problems. Having previously read some of your blogs on your website regarding defective motor vehicle; I took it back to the dealership where I bought the car for them to do a diagnostic test. They are now telling me that the cost of repairs is going to be almost R 54000.00 and I do not have that sort of money and their 3-month warranty had just expired when I took the vehicle into them so it is no longer under guarantee. What can I do? Please help!”

What do you do?

We will both advise and assist this new client, but thought we could use his query to explain some of the aspects of your legal rights in this type of situation.

  • Firstly; it is important to note that a buyer, in these circumstances, may have the protection of both the common law and the Consumer Protection Act (CPA), No 68 of 2008, which came into operation at midnight on the 31st March 2011.
  • Secondly; the common law protects you if you have bought a defective “merx” (item); whether from a dealer or from a private individual. This claim, at common law, if you have one, prescribes after three (3) years. The defect/s must be a “material defect”. Your remedy here is a civil damages claim, or a claim for a cancellation of the sale and a refund. In order to press your common law right; you will have to prove that the seller either knew about the defect at the time of the sale or should have known about it (the objective “reasonable man” test). To enforce your claim at common law; you may have to sue the seller after a formal demand. These common law remedies apply to all private sales.
  • Thirdly; please note that the CPA, on the other hand, creates an automatic implied statutory warranty. Once again, it must be a material defect/s. Your automatic remedy here is a “repair, replacement or refund, at the seller’s expense.” The seller does not have to have prior knowledge of the defect. The mere fact that it is materially defective or becomes defective within 6 months of the date of sale is sufficient. In certain circumstances, this 6 month period may be extended by a further 3 months (after a repair by the seller).

This Act of Parliament (CPA) is the law and applies to both new and second-hand vehicles.

 For most of us, a motor car is our second most expensive item, after our homes, and buying a car can be an emotional and stressful experience irrespective of your budget.

This is a disaster sometimes of you have bought a lemon!

The CPA was specifically brought into being to protect consumers.

Buying a second-hand car has long been associated with less than honest dealings, with the “voetstoots” or “as is” clause used as a fail- safe to previously protect an unscrupulous salesperson or seller from any potential blowback.

Now things have changed as the CPA states that a service provider (read car dealer) may not now sell a vehicle, new or second hand, “ voetstoots” or “as is”, irrespective of whether they disclose what’s wrong with it or not. The reason for this is the CPA. A private seller, on the other hand, may still do so and sell a car “voetstoots”; but if he/she knew about an undisclosed defect or should have known about it with the “reasonable man” test, then a “voetstoots” clause or sold “as is” will not protect them from your civil claim.

For a private seller to be able to rely on these clauses; a full list of all known defects has to be provided to the buyer by the seller. You, as the buyer, would then in the sale agreement have to sign and acknowledge the presence and knowledge of those defects. Any defect outside that list is not covered by the “voetstoots” or “as is” clause.

In terms of the CPA however if ANY material defects are discovered with six (6) months of the sale you have the right to insist on a “repair, replacement or a refund”. This is your choice, as the buyer. The dealer has no choice in the matter. They cannot insist on a repair; as they often presume to do.

This clearly does not mean that you can return the vehicle because it doesn’t smell like a new car or some other silly/immaterial excuse/ reason. We once had an inquiry from a client wanting to return a vehicle because the hooter did not work. That won’t cut it! There are clear rules on when you can return a vehicle, the most critical being when there a “material defect, failure or hazard that is not due to any alterations you have made to the vehicle after buying it.”

The best defence you have against purchasing a potential “lemon” is to arm yourself with the correct information.

If you are in the market for a new or used vehicle; make sure that you know your common law and CPA legal rights and then get professional legal assistance in order to enforce those rights.

A word of warning when buying a car. There are any number of identical vehicles to choose from on the market at any one time; and, if a deal looks too good to be true, it probably is!

The process of exercising your rights to either your common law rights or your CPA rights to “a repair, replacement or refund” is a formal legal process and should be dealt with properly and professionally.

The same intervention procedures mentioned above also apply to the purchase of all major consumer items in addition to motor vehicles.

You would be strongly advised to contact The Legal Advice Office to attend to this intervention and demand process for you; and not to attempt to do so on your own as you probably do not have the experience or expert legal knowledge to do so.

Reading about something on the internet does not make you an expert!

 

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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Legal Advice Office

South Africa

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Email: info@legaladviceoffice.co.za