by Carin Van Wyk
When a vehicle is sold by a second-hand car dealership (“dealer”) to a consumer the transaction is regulated by the Consumer Protection Act 68 of 2008 (“CPA”) In terms of section 1 of the CPA, a dealership is a Supplier who supplies vehicles in the ordinary course of business to consumers. A consumer is defined as a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business.
Rights of the consumer
The effect of the transaction being regulated by the CPA is that the consumer, in terms of section 55 and 56 of the CPA, has a right to a 6-month warranty of quality on goods bought, which the supplier is liable to provide. Within 6 months after the delivery of any goods to the consumer, the consumer may return the goods to the dealer, without a penalty and at the dealer’s risk and expense. The dealer must at the direction of the consumer comply with one of the 3 R’s; Return, Replace or Repair the vehicle. If the dealer elects to repair the vehicle, the repairs carry a further 3-month warranty. If the vehicle has a further failure or defect or if despite repair the goods remain defective the dealer must replace the vehicle or refund the Consumer.
Enforcement of rights of the consumer
In terms of section 69 of the CPA an aggrieved customer who wishes to give effect to his or her rights in terms of the CPA may resolve any dispute by referring the matter to the National Consumer Tribunal, or referring the matter to the applicable Motor Industry Ombudsman with jurisdiction or approach a court with jurisdiction over the matter if all other remedies available to that person in terms of national legislation have been exhausted.
Approaching a court
In terms of the case of Joroy 4440 CC t/a Ubuntu Procurement v Potgieter N.O. and Another (4161/2015) [2016] ZAFSHC 10; 2016 (3) SA 465 (FB) (28 January 2016) paragraph 8 and 9, the court held that the wording of the said section 69 is clear and unambiguous. It is specifically stated that the consumer may approach the court if all the avenues of redress have been exhausted. The dispute resolution mechanisms available to an aggrieved consumer in terms of the CPA include referring the matter to the National consumer Tribunal; filing a complaint with the Motor Industry Ombudsman and/or the National Consumer Commission.
Conclusion
Although the above mentioned case of Joroy 4440 CC t/a Ubuntu Procurement v Potgieter states that a consumer may only issue summons against a dealer to enforce his or her rights if all the avenues of redress listed in the CPA have been exhausted first, the Dealer should never simply ignore a summons issued against them. Always refer the summons to a legal representative as soon as it is received so that a defense can be entered. If the Summons is simply ignored, there is the risk that judgement can be taken by default against the Dealership.
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