IMPLIED WARRANTY IN TERMS OF THE CONSUMER PROTECTION ACT
Often consumers find themselves in a situation where they have purchased goods only to find out that the goods which they have purchased are defective and not suitable for the purpose which it was intended to be used for. Upon returning to the supplier, one is faced with uncooperative staff members who refuse to accept the return of the defective goods as their company policy expressly states that they do not accept returns.
It is a common misconception under consumers that once you have concluded a verbal or written purchase agreement, in terms of which you have waived your rights to a warranty, that you will have no right of recourse against the supplier should the goods turn out to be defective. The Consumer Protection Act No. 68 of 2008, as amended, (the “CPA”) was enacted to protect and develop the social and economic welfare of consumers by promoting a fair, accessible and sustainable marketplace for consumer products and services and thus preventing situations as mentioned hereinabove.
IMPLIED WARRANTY – SECTION 56(2) OF THE CPA
In terms Section 56 of the Consumer Protection Act there exists an implied warranty in any transaction or agreement pertaining to the supply of goods to a consumer. This means that the supplier of such goods warrants that the goods are of a good quality, free of defects and reasonably suitable for the purposes for which they are generally intended to be used for.
It is however imperative to note that in a situation where a transaction for the sale of goods was concluded and the supplier duly informed the consumer that the goods are sold subject to certain defects and the consumer either expressly or tacitly accepts the goods, the consumer will not be able to rely on the implied warranty at a later stage.
WAIVING OF THE IMPLIED WARRANTY
Section 48 of the CPA deals with unfair, unreasonable or unjust contract terms and provides that a supplier may not offer to supply or enter into an agreement to supply any goods or services on terms that are unfair, unreasonable, unjust, or require a consumer to waive any rights or impose any such terms as a condition of entering into a transaction.
Section 51 goes on to state that a supplier may not conclude a transaction or agreement subject to any term or condition if its general purpose or effect is to defeat the purposes of the CPA or to waive or deprive a consumer of a right in terms of the CPA.
What does this mean for the consumer? Written or verbal contractual terms which have to the effect that the consumer’s rights in terms of the CPA are waived, are not enforceable. The supplier will therefore not be able to contract out of the implied warranty provided by the CPA. This does indeed bode well for the consumer, but consumers should be wary of abusing the CPA for their own personal benefit.
WHAT IS MY LEGAL RECOURSE?
In the event that you have been sold defective goods you can, within six months after the delivery of any goods, return the goods to the supplier without penalty at the supplier’s risk and expense. The consumer is rightfully entitled to request that the goods be repaired, replaced or that a refund be given.
In the event that the supplier takes return of the goods to repair same, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must replace the goods or refund the consumer the purchase price.
HOW DO I ENFORCE MY RIGHTS AGAINST AN UNCOOPERATIVE SUPPLIER?
In terms of Section 69 of the CPA, the consumer will have to exhaust all remedies provided for in the act before approaching the court for the relief they seek. The following routes are prescribed in the CPA:
- Refer the matter to the consumer tribunal;
- Refer the matter to the applicable Ombud;
- Apply to the consumer court of the province with jurisdiction over the matter,
- Refer the matter to an alternative dispute resolution agent;
- File a complaint with the consumer commission.
In summary, consumers are provided with a 6-month implied warranty when purchasing goods. The supplier will be acting unlawfully when requesting or imposing terms in a purchase agreement in terms of which the consumer waives their rights in terms of the CPA.
There are however exceptions to the general rule and it would be advisable that you first consult with your attorney before taking any legal steps against the supplier.
Article by Ruben Maritz (LLB), Associate
For more information, Ruben can be contacted at ruben@rgprok.com or 044 601 9900.
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Disclaimer
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.
