The Consumer Protection Act No 68 of 2008 (CPA): The Consumers rights to safe, good quality goods. Continued: Section 55: Section 55(5) & (6).
In our last blog we looked at Sections 55 (4).
Today we will turn our attention to sections 55(5) & (6).
Section 55 (5) in its totality reads as follows:
“For greater certainty in applying subsection (4):- (a) it is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods; and (b) a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.”
What does this mean?
Well; as it specifically says; it creates greater certainty as to whether or not any particular purchased goods are of sufficiently good quality and safety. In testing that fact it is irrelevant whether the defect in the goods is a latent defect or a patent defect. A latent defect is one which cannot be ascertained by simply inspection and is a hidden defect eg a bent chassis in a vehicle; and a patent defect is one that any reasonable purchaser could or should be able to observe at first sight by looking at the item purchased eg a clear dent on the bonnet of a vehicle. It is also irrelevant for the dealer to argue that the consumer should have seen the defect before or at the time of delivery.
It is also irrelevant that you assume that the product is inferior of defective SIMPLY because there is a better product available which you might not have been aware of at the time of the sale. That fact does not amount to a “defect.”
Section 55 (6) goes on to say:
“Subsection (2) (a) and (b) do not apply to a transaction if the consumer:- (a) has been expressly informed that particular goods are offered in a specific condition; and (b) has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.”
Again; what does this mean?
If you buy something a fridge or a car for example and the supplier tells you that it has a dent on its bodywork and that it is sold to you in that condition and you go ahead and buy the fridge or the car; you cannot then subsequently turn around and say that the fridge is defective and not of sufficiently good quality; simply because there has been a full disclosure by the supplier in respect of that defect. This therefore places a legal onus on a supplier to fully disclose all known defects or damage to you as a consumer at the time of the sale of the item to you. The same principles would apply for example in the sale of a motor vehicle whether it be a new or second hand vehicle. This section although couched in the negative actually places an obligation of full disclosure on the supplier if they wish to escape the consequences of subsections (2) (a) and (b). In other words if they comply with subsection 55(6); subsection 55 (2) (a) and (b) will not apply.
As we now know; a consumer has the right to receive goods that are reasonably suitable for the purposes for which they are generally intended.
The CPA and section 55 have to be properly, professionally and correctly interpreted however.
As we have stated previously section 55 as a whole creates strong consumer RIGHTS for us all in the purchase of any item from a supplier.
However those rights must be properly interpreted on the facts of each individual case and not all case are the same or can be dealt with on the same basis. It is not a one size fits all scenario. We say again that despite the benefits of section 55 of the CPA; the factual and especially the legal interpretation of any situation between consumer and supplier must always be referred to legal and consumer experts for both advice and also to provide the necessary expert legal services that you require; especially when you are dealing with an item that costs a large sum of money.
You would therefore be strongly advised to contact us, to advise you on these queries or any intervention process you want to initiate; and not to simply attempt to do so on your own. Once again; we must stress that it is always advisable for you, as a consumer, to seek proper, professional legal advice and legal services when dealing with these complex factual and legal issues.
Again; If you have recently experienced difficulties with the purchasing of any goods from a supplier or wish to query their quality or compliance with the CPA; contact us at The Legal Advice Office at www.legaladviceoffice.co.za or write to one of our email addresses; either firstname.lastname@example.org or email@example.com
Should you wish to comment on this or any other legal topic; just send us an e-mail at one of the above email addresses; and we will respond as soon as we can.
The Legal Advice Office Team.