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The voetstoots clause and the Consumer Protection Act: how are you protected when buying a second-hand motor vehicle?

April 2018

#consumerprotectionact #motor #vehicle #2018

Philip Swanepoel (BA Law, LLB, LLM)

Buying a motor vehicle is a major financial expense for most people. Many people thus opt for a second-hand model which might be more affordable. However, there are significant risks involved when buying a second-hand motor vehicle as there might be latent defects which can cost you a lot of money to repair. You can thus easily end up having to foot the bill for both the purchase price and the repairs at the same time. The voetstoots clause which are almost always included in the deed of sale for a second-hand motor vehicle has traditionally excluded liability on the part of the seller for any such latent defects. However, the Consumer Protection Act 68 of 2008 now puts the buyer of second hand vehicles in a much better position as before.

A traditional voetstoots clause is also sometimes referred to as an "as is" clause which means that the item being sold, and in the context of this article a motor vehicle, is sold with all of its defects, whether latent or patent. It is thus sold as it stands. The inclusion of such a clause in a contract of sale will then exclude liability on the part of the seller for any defects and the buyer will have no recourse if it later appears that he or she has been cheated by the seller into buying junk. Such a clause is obviously to the advantage of the seller and can potentially leave the consumer in an unenviable position.

However, the above position has changed due to the Consumer Protection Act. Section 56 of this Act created an implied warranty of quality according to which the consumer is entitled to receive goods which are free from defects, which are of a good quality and which are in a working order. The traditional voetstoots clause is thus clearly not congruent with the Consumer Protection Act. Such a clause must now comply with section 56(6) of the Act on order to be valid and enforceable. This sub-section provides that goods does not have to be of a good quality, working order or free from defects if the consumer has been specifically informed of the condition of the goods being tendered for sale and if the consumer has then specifically agreed to accept the goods in such a condition. A valid voetstoots clause will thus have to expressly list the defects of the goods being sold.

It is important to note that this significant protection is only afforded to consumers who are entering a contract of sale with a supplier who are rendering goods or services in the ordinary course of his or her business. It will thus not apply to a person who just wants to sell his or her old motor vehicle privately and who are not regularly involved in the sale of second hand motor vehicles. This Act thus offers protection to anyone buying a vehicle from a second-hand car dealership. It is lastly important to note that one cannot contract out of the Consumer Protection Act. This means that the protection afforded by this Act cannot be circumvented - even if the parties agree that it should not apply to their specific transaction.




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