By Sarah Robinson / Candidate Attorney / Mooney Ford Attorneys

Purchasing a car is a significant investment, and discovering that your new vehicle is defective can be both frustrating and stressful. Fortunately, the Consumer Protection Act (CPA), particularly Section 53, offers protection for consumers facing such issues. This article delves into the specifics of Section 53 and highlights a recent case that underscores these consumer rights.

What Section 53 of the Consumer Protection Act Covers

Section 53 of the CPA provides crucial definitions for understanding your rights as a consumer:

• Defect: This refers to any material imperfection in the manufacture of goods or components, or in the performance of services, that renders the goods or results less acceptable than what is reasonably expected. It also includes any characteristic that makes the goods or components less useful, predictable, or safe than expected.
• Failure: This is the inability of goods to perform in the intended manner or to the intended effect.

In essence, a defect means any significant flaw that makes a product less acceptable, useful, or safe than what consumers are generally entitled to expect.

Section 61: Strict Liability

Section 61 of the CPA imposes strict liability on producers, importers, distributors, and retailers for any harm caused by defective or hazardous products. This means they can be held liable regardless of negligence, ensuring that the burden of proof does not fall entirely on the consumer. They are required to supply safe products and provide adequate instructions and warnings to consumers.

Case Study: Toyota Randburg v. Ndlovu

A recent case, Toyota Randburg (A division of Motus Group Ltd) v Ndlovu and Another, illustrates the application of Section 53 and how it can protect consumers. Here’s a detailed look at the case:

The Incident

Ndlovu purchased a second-hand BMW 320i from Toyota Randburg. The day after the purchase, he had to return the car for repairs due to issues with the brakes and a loose bonnet latch. Four days later, the engine seized while Ndlovu was driving on the N17, despite dry weather conditions and no evidence of negligent driving. Pinnacle Auto quoted R250,000 for a new engine, but Toyota refused to cover the cost, alleging that Ndlovu had driven the car into water.

The Legal Battle

In its appeal, Toyota submitted that Ndlovu failed to show that there was a defect in the engine as defined in section 53 of the CPA and his complaint should have been dismissed with costs.

There is undisputed evidence that the engine seized and that it was within four days from when Ndlovu took delivery of the vehicle. It was therefore for Toyota to show that it was not a defect but through the negligence of Ndlovu that the engine seized. According to Toyota’s expert, the car would not have moved from the place where the water ingress happened. Put differently, the motor vehicle should have been stuck in the pool of water and found there. There is no suggestion anywhere that it could have been moved to where it was found and the onus in that regard would have fallen on Toyota to discharge.

Ndlovu rebutted Toyota’s claims that he had driven the car into water and contended that the vehicle was not reasonably suitable for the purposes for which it was generally intended. It was not in good working order and free of any defect and was not usable and durable for a reasonable period having regard to the use for which it would normally be put.

The Court’s Decision

The court found in favor of Ndlovu, stating that it was unreasonable for a vehicle to fail so soon after purchase. The court emphasised that the onus was on Toyota to prove that the engine failure was not due to a defect but rather Ndlovu’s negligence. Toyota failed to do so, and on a balance of probabilities, the court held that the motor vehicle was defective as envisaged in section 53 of the CPA and it failed to perform in the intended manner. Consequently, Ndlovu was entitled to a refund of R262,172.78.

How the CPA Helps Consumers

The CPA provides several protections for consumers dealing with defective products:

1. Section 53 clearly defines what constitutes a defect or failure, helping consumers understand their rights.
2. Section 61 holds manufacturers and sellers strictly liable for defective products, meaning they can be held responsible without the need for the consumer to prove negligence.
3. The CPA ensures that products must meet reasonable expectations of safety, usability, and durability.
4. If a product is found to be defective, consumers are entitled to remedies such as repairs, replacements, or refunds.

What to Do If You Purchase a Defective Vehicle

If you find yourself in a similar situation, here are steps to take:

1. Document Everything: Keep detailed records of the vehicle’s issues, repairs, and any communication with the dealership.
2. Understand Your Rights: Familiarise yourself with your rights in terms of the CPA.
3. Seek Legal Advice: Consult with a lawyer if the dealership refuses to address the defect.
4. File a Complaint: If necessary, file a complaint with the Consumer Protection Tribunal.

Conclusion

Dealing with a defective vehicle can be daunting, but knowing your rights under the CPA can empower you to seek the correct remedy and enforce your rights. The case of Ndlovu highlights that consumers have strong protections against defective products, and furthermore that it is not unreasonable to expect a motor vehicle to be able to perform on the road for a period much longer than the four days that Ndlovu had his car.

Photo by CHUTTERSNAP on Unsplash