Can you still rely on the voetstoots clause? Previously, in terms of the common law, an agreement of sale could have incorporated the voetstoots clause. Accordingly, the supplier (or seller) would not be held liable for any defects to the goods, unless these were wilfully concealed. This clause deemed a warranty against latent defects as non-operative (the warranty ensured that the supplier (or seller) remained liable for goods sold where a latent defect arose. The Consumer Protection Act (CPA) provides certain warranties for goods and services and accordingly, in our opinion, the voetstoots clause may no longer be relied on: • Section 54 of the CPA relates to the supply of services (and goods that are installed or maintained in relation to the services), which the supplier must – – perform and complete on time, or the supplier must give timeous notice of a possible unavoidable delay to the consumer; – perform in a manner and quality as generally expected; – supply goods free from defects and of good quality as generally expected; and – return to the consumer in the same condition (at least) all goods used in carrying out the performance. Where such warranties are not met, the supplier must remedy the situation or refund a reasonable portion of the purchase price (depending on the extent of the defect or failure) to the consumer. • Section 55(2) of the CPA provides that a supplier must supply goods – – that are suitable for the purpose, intended unless the consumer has been informed that the goods were offered in a specific condition, and who has agreed (expressly or through conduct) to this condition. Where the consumer has specifically informed the supplier of the purpose of the use of the goods, the consumer can expect that the goods delivered are reasonably suited for that purpose (s 55(3) of the CPA) or the consumer can return the goods to the supplier in terms of s 20(2)(d) of the Act; – of good quality, in good working order and free of defects unless the consumer has been informed that the goods were offered in a specific condition, and he agreed (expressly or through conduct) to this condition; – that can be used for a reasonable period of time (taking into account surrounding circumstances, e.g. ‘wear and tear’); and – that comply with the Standards Act 29 of 1993 and other applicable law. To determine whether such warranties have been complied with, all relevant circumstances must be considered, for example the marketing, packaging and display of goods; the trade description; instructions given; and time when the goods were produced and supplied (s 55(4) of the CPA). In considering all the relevant circumstances, a failure or defect in the goods will remain as such regardless of whether they are latent or patent and goods cannot have failed or have a defect merely because a better product is now on the market (s 55(5) of the CPA). A failure to comply with s 55(3) of the CPA will result in s 20(2)(d) – the return of goods – applying and not s 56 of the CPA, whereas a failure to comply with the rest of s 55 of the CPA will result in s 56 of the CPA applying, in terms of which the consumer has six months from the date of delivery to return the goods to the supplier at the supplier’s risk and expense. The supplier must fix the good(s) within three months, replace them or repay the consumer the price paid. • A supplier must further, per s 57 of the CPA, warrant every ‘new or reconditioned part installed’ during repair or maintenance work (including labour) for three months or longer, as specified in writing by the supplier unless (in which case the warranty is void) the consumer subjects the ‘new or reconditioned part’ to abuse or the ‘new or reconditioned’ part is subjected to ‘wear and tear’. Source: Sarah-lynn Tennant and Vuyokazi Mbele of LegalWise in Johannesburg.
Posted on: Sat, 21 Jun 2014 05:12:52 +0000
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