Text: Anzet du Plessis. Article from the November 2013 issue of Leisure Wheels Magazine.

The Consumer Protection Act may have been written with good intentions – it gives consumers in SA more rights than those almost anywhere in the world – but as with much of our legislation, the issue is interpretation and enforcement.

The Consumer Protection Act (CPA)

has been causing confusion – both for buyers and the legal system – since before it was even passed.

It all seemed straightforward and helpful enough when the Act came into force in April, 2011. If you buy a car and it turns out to be defective within the first six months, you can return it and ask for a refund, repairs or a replacement. That is, unless you have modified it.

If you were sold the vehicle during a marketing campaign and didn’t initiate the sale yourself, you have a “cooling off” period of five business days within which you can return it. Call it buyer’s remorse or being swept up in the moment – either way, the CPA is meant to protect you from yourself in this instance.

The CPA also allows you to refuse “bundled” products, such as accessories in your vehicle that you don’t want, but that the dealer wants to get rid of.

Theoretically, you could argue that you don’t want the service/maintenance plans that come with your purchase – which is why some manufacturers are offering them as an add-on option.

Finally, the CPA changed how manufacturers communicate with buyers, forcing them to be straightforward about recalls, which products aren’t supported when imported separately and explaining terms and conditions in colloquial language rather than legal speak.

Here’s the catch.

So while that is all very simple, the problem is that the wording of the CPA allows a lot of room for interpretation when it comes to motor vehicles. The Act is written in such a way that dealers are protected from nitty gritty complaints. It says a “unit” must be replaced or refunded if it is faulty. So, because vehicles are made up of many “units”, this allows dealers or manufacturers to replace your engine if it blows within the first month, but not the entire vehicle.

In July this year, Naresh Theeruth bought a brand new Mercedes-Benz ML 63 AMG. A quick look at the back of our magazine will tell you that this is R1,4-million worth of luxury SUV.

Some time in August, the power steering failed and the dealership he bought it from advised him to replace the steering rack. Naresh said no – he wanted a new car.

Apparently, he was then told by the dealership that he didn’t have the right to insist on a replacement, and after a lot of to-and-fro e-mails, the dispute was referred to Johan van Vreden, the motoring ombudsman. Van Vreden’s decision will be released this month, setting a significant precedent on how disputes like this will be handled in the industry.

The opposing arguments are apparently as follows:

Section 53 of the CPA can be interpreted to define a faulty component of a product as the actual product being contested, thus allowing dealers to replace, refund or repair only the faulty bit – the steering mechanism, in Naresh’s case.

Consumer attorneys disagree, and are understandably concerned about the effect this would have on other industries – that no seller would have to replace any product in its entirety again, only the bit that is broken or faulty.

The problem is that the wording of the CPA allows a lot of room for interpretation when it comes to motor vehicles.

From the ombudsman’s correspondence with the media, it does seem likely that he will decide in the dealership’s favour – viewing the steering rack as the “product” and stating that this decision will protect the motor industry from financial collapse.

The National Consumer Commission is also in a tight spot. It is bound by the CPA, which is being ambiguously interpreted, and also by the government’s commitment to support the automotive industry in SA. And while it has commented in one media report that each case should be decided on its merits, it is also calling for the high court to issue a declaratory order – essentially setting a precedent – so that future cases can be guided by it.

Meanwhile, what has happened to our friend Naresh? Well, the steering rack was replaced, and the ML seems fine. But, as he mentioned in a newspaper interview, “It wasn’t the radio which broke, it was a critical component.”

What nobody seems to know is where the line should be drawn when it comes to deciding on what is considered a separate “product” and what is so integral to a vehicle’s operation that it has to be seen as part of the vehicle as a whole “product”.

What if failed components – like a gearbox, transfer case or diff lock – damage the rest of the car because you drove it 20km before realising what was wrong? Will the manufacturer be able to “replace, repair or refund” you for the faulty part, and blame the rest of the damage on the driver, or will the domino effect of the failure of critical parts be considered?

No one knows, and as it stands, each case decided over the next few years will influence how the CPA is interpreted within the motoring industry in future – and just what rights you as a buyer have on the dealership floor. So, ladies and gentlemen, I suggest we watch this one closely.

Need help?

Motoring Industry Ombudsman: 086116-4672 National Consumer Commission: 012 940-4450, or send your complaint to complaints@thencc.org.za

Link:  http://www.leisurewheels.co.za/category/blogs/