WENDY KNOWLER | A newly bought car with defects and no legal recourse: what now?

If you buy an old car with high mileage from a motor dealership, can you expect it to be free of defects for at least six months, in terms of the Consumer Protection Act?

Well, for years I argued that that was absolutely the case. But recent court judgments give dealers some “outs” when it comes to defective cars — and not just old, second-hand ones.

It was a complaint about WeBuyCars (WBC) which sent me down this legal path recently.

The company is expanding rapidly, selling about 8,000 a month from 35 branches or “pods”.

Patrick bought a BMW 1 series from the Montague Gardens branch in mid-November.

He experienced some “cutting out” issues soon afterwards, which WBC repaired at its cost, as well as providing free towing.

Then, in January, when Patrick told WBC that the car’s ECU — the computer unit — was water damaged, WBC initially refused to take responsibility for that, saying he’d driven more than 6,000km in the car since purchase and that because a Dekra assessment on the car presale had not picked up an ECU problems, Patrick could well have caused the problem by driving through a flooded section of road.

But shortly before I raised the case with WBC’s CEO Faan van der Walt, the company took back Patrick’s vehicle and refunded him.

The company does that at its discretion, Van der Walt told me, in certain cases.

But a clause in Patrick’s WBC sale agreement bothered me. It read:

“The vehicle is sold without any warranty and we do not guarantee that the vehicle is in a mechanically good condition, good working order or free of defects. The vehicle has not been subjected to a roadworthy test and you are responsible to do a roadworthy test together with the required repairs to make the vehicle safe for use on a public road.”

That sounded a lot like voetstoets to me, though WBC had indeed taken back the car in question and refunded the buyer when the car became problematic.

Not so, said Van der Walt, and so began my long delve into the legalities around this issue.

Older cars with higher mileage are sold at cheaper prices, and cannot be expected to be as reliable and have the same durability as new cars or cars with low mileage sold at much higher prices.

—  WBC CEO Faan van der Walt

The Consumer Protection Act states that “every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended; are of good quality, in good working order and free of any defects and will be usable and durable for at least six months, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply”.

This does not mean every single defect needs to be pointed out, WBC argues.

The rationale is that in the case of older cars with high mileage the buyer cannot expect them to be “in a mechanically good condition, good working order or free of defects”.

WBC categorises vehicles as A or B, according to age, mileage and whether it has a full service history.

Vehicles are displayed according to their categories in WBC showrooms along with a Dekra condition report.

“Older cars with higher mileage are sold at cheaper prices, and cannot be expected to be as reliable and have the same durability as new cars or cars with low mileage sold at much higher prices,” Van der Walt says.

WBC and its outsourced attorney — an expert in consumer law — do concede that it’s “better” to point out specific defects where possible, but added that the National Consumer Tribunal did not say that was “the only way to comply” with the act.

They were referring to the case brought against WBC by an Anand Singh, which came before the tribunal last August.

Singh had bought an Audi with 172,000km on the clock, and he went on to do another 4,000km in the two months after purchase.

The water pump then needed replacing and he wanted WBC to take back the car and refund him, in terms of the CPA’s six-month warranty.

But the tribunal sided with WBC, saying it had not been provided with evidence “indicating that the faulty water pump rendered the vehicle defective, as opposed to being the result of normal wear and tear to be expected of a vehicle of this nature”.

Naturally, WBC is calling this case the leading case on the application of the CPA’s section 56 as it applies to the sale of secondhand vehicles.

Another recent case which gave used car dealers cause to celebrate was that of a Ms Wentzel vs the Motus Corporation, trading as Zambezi Multi Franchise.

She sought to return a Renault Kwid for a refund, claiming that Renault had sold her a brand-new car that was “woefully defective” — the car had had faulty brakes, a rattling window and Bluetooth sound issues.

A court found in favour of Wentzel, so Motus took the case to the Supreme Court of Appeal, which overturned the ruling.

Here’s why:

“Not every small fault is a defect as defined,” the judgment read.

“It must either render the goods less acceptable than people generally would be reasonably entitled to expect from goods of that type, or it must render the goods less useful, practicable or safe for the purpose for which they were purchased ...

“Is every rattle or unfamiliar noise a defect in terms of the statute?

“Does that render the vehicle defective so as to entitle the purchaser to return it and demand repayment of the purchase price? Clearly not.”

Right, so in light of all that, here’s what you must absolutely do before buying a second-hand car:

• If the car has a recent Dekra report, as is the case with WBC cars, read it carefully to check for defects. If there’s no such report, arrange your own one.
• Test drive the car before signing the deal. Sounds obvious but many people don’t.
• Check the service and maintenance history with one of the brand’s franchised dealerships.
• Never view the car in poor light. This is a favourite trick of dodgy dealers.

I could go on, but those are the main ones.

Tread very carefully!

CONTACT WENDY: E-mail: consumer@knowler.co.za; Twitter: @wendyknowler; Facebook: wendyknowlerconsumer