Knowing your basic rights and obligations as a motorist can be the game-changer when it comes to the servicing, maintaining and even buying or selling of a vehicle, says CEO of the Retail Motor Industry Organisation (RMI), Jakkie Olivier.
The Consumer Protection Act (CPA) is there to ensure that the rights of consumers and suppliers are balanced in a fair and equitable way. “We applaud recent cases over the last 14 months where the Consumer Tribunal has started taking a harder line on unethical conduct against car dealers that have failed to comply with the Consumer Protection Act (CPA),” says Olivier.
“Unfortunately, we often come across cases where motorists have little to no understanding of their basic rights and obligations, as captured in the Consumer Protection Act and this leaves parties open to exploitation. It is important to understand that these rights are in place to protect consumers and businesses.”
There are several sections within the Act that are particularly pertinent to the buying, maintenance, and repairs of vehicles. These sections need to be read within the context of the Act as a whole in order to ensure there are no misunderstandings or undue expectations. “We always advise motorists and service providers to call on the counsel of experts in the matter,” says Olivier.
As a consumer these are the sections you need to be mindful of:
• Pre-authorisation on service, maintenance, and repair work. Section 15 of the Act deals with this. It states a supplier of goods and services may not charge for parts, a service, maintenance, or repairs on a vehicle without the authorisation of the consumer. If the retailer has proceeded without authorisation and rendered any service on a vehicle, it has acted outside of prescribed guidelines and the consumer has the right to report the retailer for dispute resolution. In Section 15 the consumer has three options relating to the cost of a job – an estimate, a cut-off maximum price or carte blanche to get the job done. The consumer needs to elect one of these three options upfront. Once the consumer has authorised work and / or the supply of goods, s/he will be liable for the payment thereof.
“Be aware that an estimate is determining the possible cost when unknown factors are evident, probably due to a hidden or unseen factors such as the internal components of an engine etc. Although it is not a requirement of the CPA, we believe it is important that an estimate should be followed by a quote – a final document determining the cost to the car owner,” explains Olivier. A quote or estimate should ideally be in writing, however, in certain circumstances, verbal authorisation will also be acceptable. In the event where an estimate is provided, and the consumer elect not to accept it, s/he will be liable for the payment of an agreed fee (strip and quote fee) for the diagnosis and estimate provided, even if the s/he elects not to approve the provision of goods, or the work associated with the estimate.
Once a quotation is given, no matter what may transpire thereafter, the consumer has every right to hold the service provider to the quoted amount for the quoted work.
It should be noted that a service provider to whom this section applies is not entitled to charge a consumer for preparing an estimate required in sub-section (2) (a) including:
a. Any cost of performing any diagnostic work, disassembly or re-assembly required in order to prepare an estimate; or
b. Any damage or loss of material or parts in the course of preparing an estimate unless before preparing the estimate the service provider has the disclosed the price for preparing the estimate, and the consumer has approved it.
• Your right to accurate information: Section 41 supports Section 15 in that it stipulates that consumers have the right to accurate information, i.e. no false, misleading or deceptive information or representations, meaning that a retailer must supply accurate and correct information, to the best of its ability, during a transaction. This applies to providing an estimate, quote or selling a product. Should you have received incorrect and inaccurate information during a transaction, and you are able to show that such deception or the withholding of information, was deliberate, you have the right to report the matter to the relevant authorities for intervention and investigation.
The RMI has a dispute resolution process in place to assist customers that may be dissatisfied with the services rendered by its members. “It’s for this very reason that it’s important to use an RMI accredited repairer. That way you can be assured that there will be repercussions for services not rendered adequately,” says Olivier.
• Your right to a quality service: Section 54 stipulates that a retailer must inform you ahead of time if the repair will take more time than initially agreed upon. “You have the right to quality service within an agreed upon timeframe. If this is not the case, you are within your right to escalate the matter with the retailer. Olivier emphasises that delays are currently prevalent as a result of the ongoing load shedding and difficulty in procuring parts. “The onus however is on the retailer to let you know if there are any unavoidable delays.”
The section also covers damage to your vehicle. In the case where the retailer has negligently or wilfully damaged the vehicle during the repair or service, it is the responsibility of the retailer to remedy the situation, unless the consumer has signed a waiver of liability. This covers any and all damages that may have occurred. “It is important to note that the consumer is not entitled to have the vehicle stored to a condition that is better than what prevailed prior to the damage occurring,” adds Olivier.
• Buying a vehicle: According to Section 55, the goods should be able to deliver service or perform the task for which it was created for. This means that the vehicle should be of good quality, free of any defects and be in an operating condition, and in the case of a used vehicle, consistent with its age and mileage. It must also be durable and useable for a reasonable time period, unless it was bought at an auction, in which case a different set of requirements apply. Be aware of any exclusions that have been recorded on the offer to purchase, as these exclusions will not be covered by any warranty or guarantee.
If one purchases a vehicle online, one needs to be particularly vigilant,
especially if you have not seen, inspected or test-driven vehicle. The Consumer Protection act indicates that a vehicle can be returned within the stipulated number of days provided in the purchase contract. However, the dealer may only accept the vehicle back if it is within a reasonable condition. There are clear rules within the Consumer Protection act on when you can return a vehicle, the most critical being when there is a material defect, failure or hazard that is not due to any alteration that you have made to the vehicle after buying it.
• Voetstoots and Disclosures: In accordance with the CPA, an official car dealer may not sell any vehicle “voetstoots”, irrespective of whether they disclose what’s wrong with the vehicle or not. A vehicle may only be sold “voetstoots” or “as is” in a private sale. In order for a car to be validly sold voetstoots a full list of all known defects has to be provided to the buyer by the seller. “You as the buyer would then in the sale agreement have to sign and acknowledge the presence of those defects,” explains Olivier. Any defect outside that list is not covered by the voetstoots clause. If any defects are discovered within six (6) months of the sale, you have the right to insist on repair, replacement, or a refund. This is your choice as the buyer.
Consumers must remain mindful of the fact that, when buying used goods (vehicles, parts, or accessories), these goods will be subject to a warranty that covers these goods after fair wear and tear, considering the age and mileage of these goods. In addition, consumers should be aware that goods, such as electrical equipment or parts, will usually have a warranty condition that requires them to be fitted by a qualified professional. “Here again accreditation matters and consumers would be wise to be mindful of this,” says Olivier.
• Return old or replaced parts to the vehicle owner after a service: According to Section 67 of the Act a retailer should return old or replaced parts to the owner in the interests of transparency and the consumer has the right to ask for the old, replaced parts. “It is important to note, however, that the section excludes this obligation if the work is done under warranty, insurance claim or paid for by a third party, and of course consumables such as oil, coolant, and air conditioner gas, which needs to be disposed off by the repairer in a way that is required by law.”
In the case where the consumer elects to return goods, for whatever reason, they must remember the three R’s – repair, replace or refund. Once the consumer has elected any one of these R’s, s/he will be bound by it and the other two R’s cannot be elected. Section 56 says ‘that within 6 months after the delivery of any goods to the consumer, the consumer may return the goods to the supplier without penalty and at the supplier’s risk and expense. If the goods fail to satisfy the requirements and standards contemplated in section 55, and the suppliers must, at the direction of the consumer:
a. Repair or replace the failed, unsafe and defective goods or
b. Refund the consumer the price paid by the consumer for the goods
“As an organisation that champions the rights of motorists and service providers in the motor industry, we want to see an increased awareness of these consumer rights. It ensures better communication between consumers and service providers and ethical trading,” concludes Olivier.