Have you ever found yourself inspecting a second-hand motor vehicle and end up kicking one of the tyres? Perhaps in the hope that something falls off or breaks, to allow some room for negotiation on the price and yet to your disappointment nothing happens.
There is some underlying explanation why consumers tend to do this. Explanation being that the transaction is governed by the Consumer Protection Act and include an implied guarantee against any latent defects. Parties to agreements, especially involving second-hand goods, have developed the need to explicitly exclude any implied guarantees against latent defects through the inclusion of the so called “voetstoots-clause”. An explicit exclusion of the latent defect guarantee by way of the voetstoots-clause is only beneficial to the seller as purchasers are then (and often unknowingly) burdened with the risks and consequences of latent defects. The legislator intervened through the creation of the Consumer Protection Act (herein after referred to as the “CPA”), to once again attempt to achieve equality within the consumer market.
The CPA makes provision for unique terms that are implied by statute, and if applicable, will void the presence of the voetstoots-clause in its totality. Therefore, should the consumer purchase a second-hand motor vehicle and the CPA is applicable, there would have been no need to kick either of the tyres as the consumer would be entitled to request the dealership (within six months from date of purchase) to be refunded, to repair or replace the motor vehicle, at no expense or risk to the consumer, should the vehicle prove to be defective.
Unfortunately this is not always the process followed by the involved parties. Naturally, parties attempt to resolve their disputes through making alternative arrangements, which to some extent is cost effective as it avoids initial legal expenses, but are nevertheless time consuming and often fruitless.
It is advised that a consumer compiles a chronological and organised record of the facts of the dispute, the reasons proffered by the involved parties and all documentation applicable thereto, including all correspondence with the motor dealership or its representatives. If the parties fail to resolve the dispute amongst themselves, it is advised to escalate the matter to the dealer principal and, if needs be, directly to the motor vehicle manufacturer thereafter.
Should the parties persist with their points of view and the dispute still remains unresolved, the consumer may lodge a complaint with the Motor Industry Ombudsman of South Africa (MIOSA) in writing through the completion of the prescribed Assistance Request Form which is available on MIOSA’s website at www.miosa.co.za. MIOSA will attempt to mediate the dispute by providing the so-called respondent with full particulars of the lodged complaint and copies of the complete set of documentation received from the complaining party. The respondent then has 14 (fourteen) days to respond to the MIOSA with regards to the said complaint. Should the need arise for a hearing to be held, parties shall consent thereto 21 (twenty one) days in advance. After the finalisation of any hearing proceedings, MIOSA will present its decision within 30 (thirty) days to the respective parties.
An appeal against the MIOSA’s decision is possible and must the appealing party lodge the appeal, including the appellant’s detailed argument and grounds for appeal against the final decision, within 10 (ten) days from the date on which the MIOSA’s final decision was handed down. In such instances the MIOSA will advise the appealing party to either lodge the appeal with the National Consumer Tribunal (NCT) or Provincial Consumer Court (PCC).
The available alternative dispute resolution methods within the motor industry of South Africa is clearly consumer orientated and has been simplified to the extent that a consumer can easily make use of it in his or her personal capacity. The problem, however, lies in the fact that this alternative dispute resolution method is not being utilised to its greatest potential. Consumer education is needed to enlighten consumers, not only of their rights under these circumstances, but also guide them in the most effective routes to follow.
The next time you kick that tyre do not only check that the motor vehicle is in good condition, but also rest assured that the CPA is applicable.