Handle With Care

There are clear rules regarding customers causing damage to goods while examining them. Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk explains who is liable.
The Consumer Protection Act 68 of 2008 (CPA) makes provision in Section 18 for the consumer’s right to choose or examine goods. What does this right entail and why is it important to consider it? What are the implications, taking the high-value items sold by the motor vehicle industry into consideration?
Examine all angles
The right to choose and examine goods entitles the consumer to inspect merchandise that a supplier displays for sale. If goods are displayed, the consumer can choose any item from stock before entering into the transaction. So, if a dealer has a vehicle on display in a showroom, a consumer is entitled to examine it in order to determine whether or not they want to buy it. Similarly, if a dealer sells accessories, the consumer can choose one from the stock on display.
But the right goes further than simply studying the goods on display: in terms of this right, a supplier can’t hold a consumer liable for damage caused to goods on display although there are some exceptions to this general rule. A dealer may take the view that they can have a notice or sign to the effect of “you will be liable for damage caused to goods on display”. However, the CPA clearly states that despite such notice, a consumer won’t be liable for the damage.
In practice, this means if a consumer accidentally scratches a new vehicle on display in the showroom, the dealer can’t hold the consumer liable for this damage (which may be a substantial amount). Or if a consumer picks up any accessory on display, and accidently drops it, the dealer can’t charge the consumer if the item breaks or is damaged.
Exceptions to the rule
It is important to understand that this general principle won’t always apply. The consumer will still be liable for the damage caused to goods on display if they act in a manner that amounts to gross negligence, recklessness, malicious behaviour or criminal conduct. In these cases, the supplier can hold the consumer responsible for the damage caused to the goods. The difficulty comes in when it is necessary to determine whether or not the consumer acted in this manner. It should be rather easy to determine whether the consumer acted criminally or with the intention to cause damage (maliciously). For example, if a salesperson unintentionally angers a consumer and the consumer kicks a dent in the vehicle out of anger or frustration, the consumer clearly had the intention to cause damage to the vehicle and, because of this malicious behaviour, the consumer will be liable for the damage.
The more difficult scenarios to determine are whether or not the consumer acted in a grossly negligent or reckless way. This is tricky because different people could interpret it differently. Grossly negligent behaviour refers to something in between an accident (negligence) and causing damages intentionally (malicious intent).
A consumer will be regarded as having acted recklessly if they acted in a manner that is irresponsible to the extent that one can almost see it as intentional. For example, if a parent goes into a showroom with their children and the kids scratch the vehicles on display with their toys and the parent doesn’t stop them, despite being aware of their conduct, this could be seen as reckless behaviour.
Unhappy accident
It’s also important to remember that suppliers may still make the rules on how they expect consumers to behave in their showrooms. The old principle of ”right of admission reserved“ doesn’t fall away in terms of the CPA. But bear in mind that a supplier can’t reserve admission to certain categories of people based on one of the discrimination grounds in the Constitution.
If a supplier needs to interpret this right in order to decide whether or not a consumer is liable for damages, it’s important that the supplier uses its discretion and considers all the surrounding circumstances. The bottom line is that if it was a mere accident, the consumer won’t be liable.


The CPA sets out the rules that service providers need to follow, explains Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk.
The Consumer Protection Act 68 of 2008 (CPA) defines service to mean “any work or undertaking performed by one person for the direct or indirect benefit of another … irrespective of whether the person promoting, offering or providing the services participates in, supervises or engages directly or indirectly in the service”.For the purposes of the CPA, a service provider is a person who promotes, supplies or offers to supply any service.
In terms of section 54 of the CPA, a consumer has the right to demand and receive quality service. The CPA sets out the rules that the service provider needs to follow when providing a service, for example the repair of a motor vehicle. Firstly, the service centre must perform and complete the work on time, i.e. within the time frame agreed with the consumer. If there is an unavoidable delay that will result in it being completed later than originally anticipated, the service provider must notify the consumer of the delay timeously.
Secondly, the CPA stipulates that a service provider needs to perform the work in a manner and to a quality that a consumer is generally entitled to expect. The CPA goes further to say that if the service provider makes use of goods (for example, new parts being fitted into the vehicle) then the goods must be free of defects and of a quality persons would generally be entitled to expect. The property (meaning the vehicle) must also be returned in at least the same condition as it was when the vehicle was delivered – considering any specific criteria or conditions agreed between the service provider and consumer.
The CPA aims to ensure that when a consumer has an item repaired, or when maintenance is being carried out on a vehicle, it is done with care. The CPA accordingly creates a warranty on the parts used in the repair or maintenance of goods belonging to the consumer. The CPA also goes further and extends the warranty to the actual installation of the part.
So what is the warranty period? In terms of the CPA an automatic minimum three-month warranty period runs concurrently with any other warranty and covers all parts installed by the service provider as well as all labour relating to the installation of the parts. Consumers must note that there are instances when the three-month warranty will not apply. These include fair wear and tear, consumer misuse or abuse of the item repaired, and if the goods have been altered contrary to instructions.
The CPA also stipulates that if a service provider removes any parts or material from any goods when performing a service, they must store the removed parts and materials separately from that of other peoples’ and return the removed parts and materials to the consumer in a reasonably clean container. This does not apply where the consumer has specified that they do not want the parts or materials, or where the parts were replaced as part of an insurance claim or in terms of a warranty claim.
In conclusion, the CPA makes it clear that if the service provider does not adhere to the requirements as dealt with above, then the consumer may request that the defect be remedied in terms of the quality of services, or goods supplied, or both. Alternatively, the consumer may demand that the service provider pays a reasonable portion of the price for the goods and services. It is also important to understand that the usual common law rights of consumers have not fallen away. A consumer can still sue a service provider for any damages suffered as a result of a defective service in terms of South Africa’s law of delict. An example of this may include towing costs where the consumer had a breakdown as a result of a defective service.
Contact Jana van Zyl on 021-671-5423 or email jana.vanzyl@rtk.co.za.

Taking It Back

Jana Van Zyl of consumer law experts Robertson Teuteberg Kirk explains the reasoning behind what can and cannot be returned.
It seems many consumers are under the mistaken impression that, in terms of the Consumer Protection Act 68 of 2008 (CPA), they have the right to return goods for almost any reason. We recently heard about a case where a consumer wanted to return an item because it was available cheaper from another supplier. The CPA does not provide for such a general right of return. It does, however, set out specific terms that allow a consumer to return purchased goods.
Not all of these are likely to apply to automotive retailers, so let us take a look at a few important return rights that do apply. What is important is that a consumer has the right to return a vehicle if it does not meet the specific purpose for which it was required and as was indicated to the salesperson. If a consumer indicates to the dealer a particular purpose for the vehicle, then it must be able to perform these functions. If it turns out that the vehicle cannot be used for that purpose, the consumer can return it to the dealer within 10 days.
For example: a consumer tells the salesperson that he wants to buy a 4×4 vehicle and there is not a suitable model in stock but the salesperson assures the consumer that a 4×2 fitted with a differential lock will be able to do exactly the same as the 4×4. If it transpires that the vehicle cannot perform the same function, the consumer may return the vehicle in terms of the CPA. Salespeople should take note of these provisions and ensure that, when a consumer indicates any specific purpose, they provide the correct information or correct any misunderstanding on the consumer’s side. Note that this right is not automatic – it kicks in only if the consumer’s expectations were made explicit to the salesperson.
The other potentially onerous provisions for dealers relate to the consumer’s right to return goods found to be defective within six months from the date of purchase or delivery (the latter date of the two). A defect will be present if there is a “material imperfection in the manufacture of the goods” that renders the goods less acceptable than someone could reasonably expect, or a “characteristic in the goods that renders it less useful, practicable or safe” than is reasonably expected in the circumstances. This will be determined case by case, taking all factors into account. The CPA does not prohibit the dealer or manufacturer from running tests to determine the cause of the defect. It cannot be expected that a dealer accepts the return of a vehicle merely on the allegation of a defect by the consumer.
If a consumer is able to return goods for any of the reasons specified in the CPA, the supplier of the goods may in certain instances be entitled to levy a charge for the use of the goods, and to make the goods fit for restocking. So, if a consumer is indeed entitled to return a vehicle, the obligation will be on the dealer to refund to the consumer the purchase price of the vehicle less any entitled charge that it is to make.
Contact Jana van Zyl on 021-671-5423 or email jana.vanzyl@rtk.co.za.