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27 September

Validity of voetstoots clauses under the Consumer Protection Act

Consumers often opt to purchase second-hand goods in order to save money or because of the mere fact that they stumbled upon a bargain. Second-hand goods, although a possible bargain, can be risky to buy as it may contain defects, and the consumer’s recourse in such an event can be severely limited. This concern relating to defects is considerably increased when buying high-value second-hand goods such as motor vehicles, where latent defects can cost a lot of money to repair – often leaving the consumer in a position where he or she is spending significant amounts of money repairing the defects whilst still paying off the initial purchase price.

The biggest limitation of the consumer’s right to recourse when buying faulty goods is the inclusion of the so-called “voetstoots” clause which is often included in verbal or written sale agreements. These clauses are often referred to as “as is” clauses since it literally means that the consumer is buying the product as it stands, with all latent and patent defects included. The seller can then not be held liable for damages under the common law once such defects are discovered, thus leaving the consumer without a remedy.

However, this traditional position as set out above has been dramatically altered in respect of second-hand goods sold by a supplier who is rendering goods or services in the ordinary course of his or her business (this will include most sellers who are not private persons merely selling his or her goods on a once-off basis). This protection is afforded to consumers purchasing both new and second-hand goods by the CPA.

Section 55 of the CPA sets certain standards with which goods sold by suppliers must comply with. This section requires firstly that goods must be reasonably suitable for the purpose for which they are generally intended. The goods must secondly be of a good quality, in a good working order and free of any defects. The goods must lastly also be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put to and with regard to any relevant circumstances.

Section 56 of the CPA creates the implied warranty according to which consumers have certain remedies if the above standards are not met. Consumers may, according to this implied warranty, return such defective goods for repair, refund, or replacement. This warranty is valid for a period of 6 months from the date of purchase.

It is thus clear from the above discussion that the traditional voetstoots clause which was valid under the common law no longer protects sellers against liability for faulty goods. However, a voetstoots clause which specifically states what the condition of the item being sold is and which lists all the defects which are present will be valid in terms of the CPA if the consumer then expressly accepts it. This is the position since the consumer would not be prejudiced as he or she will be aware of the defects and thus make an informed decision.

It is furthermore important to note that neither the standards as set out in section 55 nor the warranty contained in section 56 can be excluded from a sale agreement. The consumer is thus always protected. Consumers considering to buy a second-hand motor vehicle or some other high-value second-hand item would thus be wise to rather buy such an item from a dealership as opposed to a private person who is entering into a once-off sale, since voetstoots clauses between private persons entering into a sale agreement will still be valid (except if such private person wilfully concealed the defects).

Reference List:

  • Consumer Protection Act 68 of 2008
  • Advisory Note 1: Consumer Goods and Service Ombud
  • Consumer Protection Guide for Lawyers: Law Society of South Africa
  • Right to Return Goods in Terms of Section 56 of the CPA: SEESA

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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