Page 19 - Robin Twaddle PTG 2017 Digital

Right to return defective goods – Section 56(2)
Within six months after the delivery of any goods to a 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.

Where the CPA applies, the purchaser has the right to return the goods to the seller –without
penalty and at the seller’s risk and expense – within six months of delivery (registration of
transfer at the deeds office). The purchaser has the choice as to whether the seller will be
required to refund the full purchase price or repair the ‘goods” (where applicable).

Effect of the CPA on the Voetstoots clause
There are conflicting views on the likely effect of the CPA on the traditional voetstoots
clause. Certainly, where the Act applies, traditional voetstoots clauses that breach the
consumer’s rights as per Section 55 of the Act will no longer be applicable. Property
speculators, developers, builders, estate agents, and attorneys involved in the drafting of the
contract of sale will be required to comply with Sections 55–56. However it is also likely that
the exception in Section 55(6) will relate to the voetstoots clause in that when the purchaser
signs the deed of sale, and (s)he acknowledges that (s)he has been expressly informed that
the property is sold in the specific condition that (s)he sees it, and which condition is listed
in detail in the contract itself, and is acquainted with the property’s condition, nature and
extent, land use planning and building plan approval, accepts it as is, then the exception
should apply. As per Section 49 of the CPA, such provision must have been drawn to the
attention of the consumer and in a conspicuous manner, that is likely to attract the attention
of an ordinarily alert consumer, having regard to the circumstances, and before the earlier
of the time at which the consumer enters into the transaction or agreement, or is required or
expected to offer consideration for the transaction or agreement.

LEASES AND LANDLORDS

‘Lease’ is not defined in the CPA, however, ‘services’ is defined as including the provision
of accommodation or sustenance, access to or use of any premises or other property in
terms of a rental. ‘Rental’ means an agreement for consideration in the ordinary course
of business, in terms of which temporary possession of any premises or other property is
delivered to or at the direction of the consumer, or the right to use any premises or other
property is granted to or at the direction of the consumer, excluding a lease within the
meaning of the National Credit Act.

Landlord as Supplier/Tenant as Consumer:
◆◆ The Act applies where the landlord is in the business of letting properties, and the

tenant meets the criteria of ‘consumer’ – being an individual or juristic body whose
turnover or asset value is less than R2 million.

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