Previous to the promulgation of the Consumer Protection Act, consumers had limited rights relayed to them in terms of purchasing a second hand vehicle especially in relation to the inclusion of a “voetstoots” clause which is the ambit under which most used motor vehicles were sold.
A voetstoots clause which, in effect, stipulates that the property will be sold 'as is'. The effect of such a clause is that the seller does not take the risk or responsibility of any defects that the said vehicle might have.
However, the consumer is now very much protected under the Consumer Protection Act. And the provisions of a “voetstoots” clause are no longer fully enforceable, under the ambit of the Consumer Protection Act. But are you protected if you purchase a vehicle from a private individual?
The Consumer Protection Act, clearly states that the application of its provision are applicable to transactions that take place between a consumer and seller, who conducts the transaction in his/her normal scope of business. Therefore, if you purchase a second hand vehicle from a private individual you will not be protected by the application of the Consumer Protection Act. This in turn means that when purchasing a vehicle from a private individual such purchase can be made in terms of a “voetstoots” clause.
So, where does that leave you if you have or intend on purchasing a second hand vehicle from a private individual?
Firstly, prior to making such a purchase it is advisable that you request that the vehicle be assessed by an independent assessor. The cost of this varies depending on the extent of the assessment that you request. However, it is a wise spend owing to the future issues you could be faced with where you have purchased a vehicle that has mechanical issues.
Secondly, in the event that the private seller has insisted on a “voetstoots” clause, the purchaser can in turn ask that the seller clearly stipulate in writing all the known defects of the vehicle. This will aid you if in future the vehicle starts giving mechanical issues.
The inclusion of the “voetstoots” clause however, does not leave the purchaser without legal recourse. Should the vehicle after purchase present mechanical issues, the common law will apply, meaning that the seller is not exempt from liability in instances where they misrepresented or were aware of a latent defect in the vehicle and failed to disclose this. The purchaser can then institute legal action against the seller. The purchaser will then rely on the “voetstoots” clause. The purchaser will have to then convince the Court that the seller was aware or should reasonably have been aware of the defect and that he/she intentionally concealed the defect in an attempt to defraud the purchaser.
So a word of wisdom, rather purchase your second hand vehicle from a reputable dealership and in the event that you do purchase a second hand vehicle from a private individual, ensure you fully understand the terms of purchase and that you have fully inspected the vehicle and have ascertained any defects through an assessment by an independent assessor.