Have you ever regretted buying something, but felt that you had no recourse after being told it was sold voetstoots or “like”?
Well, it turns out, the idea of buying something voetstoots or “as is” is not really allowed, because this type of transaction is not in line with the Consumer Protection Act. Suppliers are not allowed to sell goods without a form of liability for defects, while the voetstoots clause in the agreement is also prohibited.
The voetstoots (“like”) clause was often used before the Consumer Protection Act (CPA) came into force in 2011, and was used to release the seller from liability when the goods have a latent defect, unless the buyer shows that the seller knew about the latent defect and did not disclose it to previous buyer.
A latent defect is a fault in the item that you would not have discovered in a thorough enough inspection prior to purchase.
Consumers often complain that, especially car dealers, often refuse to honor the six-month warranty provided for used cars, said consumers buy voetstoots.
READ ALSO: This ombudsman complaint highlights what to look out for when buying a used car
Can items not be sold voetstoots?
According to the Ombudsman for Consumer Goods and Services, the thinking behind this approach is a voluntary agreement between two competent parties with full understanding, but in practice and in most transactions, the parties do not have equal bargaining power and the stronger party. usually businesses, can exempt themselves from certain legal obligations with disclaimers, indemnities and exemption clauses.
Although there was an initial debate about whether the voetstoots clause applies to consumer transactions covered by the CPA, the National Consumer Court has ruled that voetstoots sales do not apply to any transaction covered by the CPA, and this kind of sale is also carried out. not permitted under section 5.
The only exception is where the goods are sold by auction, when they are modified after the sale, and where the consumer clearly informs that certain goods are offered under certain conditions and expressly agrees to accept the goods under these conditions, or intentionally. act in a manner consistent with receiving the goods in that condition after the seller informs him of a particular defect.
Apart from goods bought at auction, the only other exception is if the consumer is an entity with an annual turnover exceeding R2 million, as the CPA does not apply.
READ ALSO: Your rights when buying a car at auction
Consumer Protection Act
Consumers have a right to safe goods of good quality under Section (55)(2) of the CPA.
This provides that the goods must:
- Sufficiently fit for the purpose generally intended or fit for the particular purpose communicated to the supplier.
- In good quality, in good working order and without defects.
- It can be used and lasts for a long time.
- subject to other regulations governing its quality.
Section 55(3) also provides that the consumer has the right to expect that the goods are fit for the particular purpose for which the consumer supplies the supplier.
The Ombudsman said in the Advisory note that these rights are made as an implied term in any transaction or agreement regarding the supply of goods to consumers that producers or importers, distributors and retailers each guarantee that the goods comply with all these requirements.
If the defect becomes apparent within six months after delivery, the consumer can return it, at his own risk and expense and ask the supplier without penalty for a refund, replacement, or repair. The choice is the consumer.
Although Section 55(6) of the CPA allows the supplier to escape liability for defects brought to the attention of the consumer, it is provided that this clause may not be in unfair, unreasonable, or unfair terms and must be interpreted against the seller take into account what people reasonably expect, section 51 and 2 indicate that there is no place for voetstoots in transactions falling under the CPA.
READ ALSO: Worried about your rights when buying a used car? Here’s what you need to know
The seller is not allowed to opt out of the CPA
According to Section 51, the supplier is not allowed to enter into a transaction or agreement under any terms or conditions if the purpose or general effect is to defeat the purpose and policy of the CPA, to mislead or deceive the consumer or subject to the consumer. fraudulent conduct.
It is also not allowed to directly or indirectly admit to eliminating or reducing the rights of the consumer in the terms of the CPA, avoiding the obligations or duties of the supplier in the terms of the CPA or setting aside or removing the effect of the provisions of the CPA. .
Section 2(10) further provides that no provision of the CPA may be interpreted as excluding any rights that consumers would have in terms of the common law. Section 56(4) also provides that the warranty of quality given is in addition to other warranties in terms of common law.
The ombudsman said in a practice note that suppliers can sell goods under certain conditions in terms of section (55) (6), but this requires the quality and defects of the goods to be explained in detail to the consumer. If the seller points out the defect before the sale and the consumer buys the item, the consumer cannot hold the seller responsible for the defect.
This is in line with one of the philosophies that underpins the CPA, that the consumer is bound by an agreement that is implemented after obtaining true and accurate information sufficient to enable him to make an informed choice.
However, if the contract contains exclusions, restrictions, limitations or deficiencies, the clause must still comply with certain provisions of the CPA. According to Section (4)(4)(b) of the CPA, any contract, standard form or document containing restrictions, limitations, exclusions or deprivations of consumer rights must be interpreted in favor of the consumer.
Section 48(1)(c) further provides that the supplier is not permitted to require the consumer to waive his rights, to waive the supplier’s liability, or to assume any obligation on unfair, unreasonable or unjust terms.
See also: Do you buy things on lay-by? This is your right as a consumer