IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: A18/2025
Magistrates’ court case number: 12218/2016
In the matter between:
PURE SILK INVEST 2 (PTY) LTD
t/a GROUP 1 NISSAN KUILS RIVER Appellant
and
JACQUES ALEX MARTIN Respondent
Coram: Van Zyl, AJ (Nziweni, J concurring)
Heard on: 9 October 2025
Judgment: : 3 December 2025
Summary: Civil appeal from magis trates’ court – appeal against dismissal of
special plea of jurisdiction under section 69 of the Consumer Protection Act 68 of
2006, and upholding of respondent ’s claim on the merits – no reason to interfere
with magistrates’ court’s decision on either aspect
___________________________________________________________________
ORDER
The appeal is dismissed, with costs, including counsel’s fees taxed on Scale B.
JUDGMENT
VAN ZYL, AJ:
Introduction
1. Aspects of the parties’ respective rights and obligations under the Consumer
Protection Act 68 of 2008 (CPA) are the focus of this judgment. It is common
cause that the CPA finds application in this matter.1
2. The appellant (the defendant in the magistrates’ court) appeals against the
judgments of the Kuils River Magistrates’ Court handed down on 31 October
2022, in res pect of the appellant’s special plea, and thereafter on 11
November 2024 , in respect of the merits of the action. The respondent
sought the payment of R175,000.00, with interest, from the appellant, upon
the tender of the return of a defective vehicle, a Nissan Navara 2.5 dCi SE
4x4, by the respondent. He also cla imed damages arising from expenses
incurred as a result of the problems with the vehicle. His claims were based
both of the relevant provisions of the CPA and on the common law.
3. The magistrates’ court found against the appellant both on the special plea
and the merits of the action. The appellant was ordered to refund the
purchase price to the respondent. No order was made in relation to the
respondent’s claim for damages.
4. The appellant relies on a wide range of appeal grounds, which essentially
entails that the magistra te was wrong in finding that the vehicle displayed
material defects, and that the re spondent should have been aware of the fact
that the second -hand ve hicle could not be expected to pe rform like a ne w
one.
The special plea
5. The special plea raised by the appellant in the magistrates’ court was that the
1 The respondent is a “consumer” and the appellant a “supplier” as defined in section 1 of
the CPA. The vehicle constitutes “goods” as contemplated in that section.
court did not have the necessary jurisdiction to hear the matter , as the
respondent (as plaintiff) had not followed the hierarchy of remedies provided
for in s ection 69 of the C PA. In esse nce, the appellant sought to argue that
the respondent was not entitled to approach the court to seek redress for its
damages. The special plea was dismissed.
6. The respondent argues that the appellant should have taken steps to appeal
the judgment on the special plea immediately after its delivery. Thus, having
waited until the conclusion of the merits of the action, the applicant has
perempted2 its appeal as f ar as the special plea was concerned. The
appellant, on the other hand, contends that the judgment on the special plea
did not bring the action to finality, and it therefore had no option but to pursue
its appeal against th e special plea judgment together with the judgment on
the merits.
7. There may be some merit in the respondent’s argument insofar as the
judgment on the special plea was final as regards the issue of the court ’s
jurisdiction. The appellant’s notice of appeal, confusingly, refers expressly to
the judgment on the merits although the grounds of appeal include criticism of
the jurisdiction judgment. Whether the appellant ’s delay and the manner in
which its appeal was raised pointed indubitably to an intention to abandon an
appeal is another question. Th at was not fully argued befor e this Court but i t
seems to me, in any event, that the issue raised in the special plea is one of
some public importance, and deserving of consideration. The application of
the doctrine of peremp tion is not absolute ,3 and I accordingly prefer to
address the issue rather than to halt it in its tracks.
8. Section 69 of the CPA reads as follows:
“69 Enforcement of rights by consumer
A person contemplated in section 4(1) may seek to enforce any right in terms of this
Act or in terms of a transaction or agreement, or otherwise resolve any dispute with
Act or in terms of a transaction or agreement, or otherwise resolve any dispute with
2 Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) at 443F-G.
3 Booi v Amathole District Municipality and others 2022 (3) BCLR 265 (CC) para 29.
a supplier, by-
(a) referring the matter directly to the Tribunal, if such a direct referral is permitted by
this Act in the case of the particular dispute;
(b) referring the matter to the applicable ombud with jurisdiction, if the supplier is
subject to the jurisdiction of any such ombud;
(c) if the matter does not concern a supplier contemplated in paragraph (b)-
(i) referring the matter to the applicable industry ombud, accredited in terms of
section 82 (6), if the supplier is subject to any such ombud; or
(ii) applying to the consumer co urt of the province with jurisdiction over the
matter, if there is such a consumer court, subject to the law establishing
or governing that consumer court;
(iii) referring the matter to another alternative dispute resolution agent
contemplated in section 70; or
(iv) filing a complaint with the Commission in accordance with section 71; or
(d) approaching a court with jurisdiction over the matter, if all other remedies
available to that person in terms of national legislation have been exhausted.”
9. An ordinary reading of the section indicates that it is cou ched in permissible
language through the use of the word “may” at the outset. There has
nevertheless been un certainty as to the impact of the reference in section
69(d) to “other remedies available”. Counsel for the appellant has referred us
to various cases in which the exhaustion of the other remedies set out in
section 69 was required.4 None of these decisions emanate from this
Division, and I respectfully decline to follow them.
10. In Parch Properties 72 (Pty) Ltd v Sum mervale Lifestyle Estate Owner's
Association and others5 the Supreme Court of Appeal (SCA) provides useful
guidelines in considering the proper approach to a provision like section 69 of
the CPA . In that case the question arose whether the High Court had the
necessary jurisdiction to , as court of first instance, determine disputes
between homeowners and homeowners’ associations, or whether the dispute
between homeowners and homeowners’ associations, or whether the dispute
4 Joroy 4440 CC v Potgieter and another NNO 2016 (3) SA 465 (FB); Ngoza v Roque Quality
Cars (NCTll9905/2017ll3(3) & 75(1)(b) 2018 ZANCT 70 (28 June 2018); Oos Vrystaat Kaap
Bedryf Beperk v Cilliers 2019 JDR 0049 (FB); Nzwana v Dukes Motors t/a Dampier Nissan
[2019] ZAECGHC 81 (3 September 2019).
5 [2025] ZASCA 155 (17 October 2025) . See also Midstream Homeowners' Association NPC
v Ngobeni [2025] ZAGPPHC 792 (25 July 2025) paras 14-19.
first had to be referred to the Ombud established under t he Community
Scheme Ombud Services Act 9 of 2011 (CSOS Act). It was accepted that
the CSOS Act’s purpose is to provide for the establishment of the Community
Schemes Ombud Service (the service) , its mandate and functions , and a
dispute resolution mechanism in community schemes : “Importantly, the
CSOS Ac t was established, inter alia, for the purpose of providing an
expeditious and informal cost -effective mechanism for the resolution of
disputes”.6
11. Section 38(1) of the CSOS Act provides that any person who is a party to or
affected by a dispute, “may” make an application to the Ombud in relation to
certain disputes. The SCA pointed out that that was “a clear indication of a
choice of forum”.7 It referred to Coral Island Body Corporate v Hoge ,8 where
the court dealt with a dispute in which the body corpor ate of a residential
property sectional title scheme sought declaratory and interdictory relief
against one of its members. Despite the mundane nature of the dispute, the
court held that:
“Compelling constitutional and social policy considerations informe d the introduction
of the legislation that is manifest in the Ombud Act. The promotion of access to
justice by those not easily able to afford to litigate in the civil courts was but one of
those considerations. Another was the social utility to be achieved by the provision of
a relatively cheap and informal dispute resolution mechanism for the disposal of
community-scheme-related issues. It requires little insight to appreciate that those
commendable policy considerations would be liable to be undermined i f the courts
were indiscriminately to entertain and dispose of matters that should rather have
been brought under the Ombud Act. Whilst judges and magistrates may not have the
power to refuse to hear such cases, they should, in my view, nonetheless use the ir
judicial discretion in respect of costs to discourage the inappropriate resort to the
judicial discretion in respect of costs to discourage the inappropriate resort to the
courts in respect of matters that could, and more appropriately should, have been
taken to the Community Schemes Ombud Service.”
6 Parch Properties supra para 12.
7 At para 14.
8 2019 (5) SA 158 (WCC) paras 8-10. My emphasis.
12. The SCA, in turn, held:9
“[16] The Coral Island approach is consistent with the Constitution and the purpose
of CSOS and related legislation…
[17] Generally, the high court has authority to hear any matter that comes before it,
unless the specific law or rule expressly limits that authority or grants it to another
tribunal. The question is whether such limitation can be implied . This Court in
Thobejane restated what Kriegler J held in Metcash Trading Ltd v Commissioner
South African Revenue Service and Another that ‘ there is a strong presumpt ion
against the ouster of the High Court’s jurisdiction, and the mere fact that a statute
vest jurisdiction in one court is insufficient to create an implication that the jurisdiction
of another court is thereby ousted’.
[18] The CSOS Act does not explicit ly or implicitly exclude the high court’s inherent
jurisdiction to hear community scheme disputes. The fact that the Ombud has wider
powers does not imply the exclusion of the court’s jurisdiction. In our view, the Act
was designed to co-exist with the court system providing the parties with a choice of
a forum, not to replace it entirely.”
13. I am of the view that the se principles are of equal application in the case of
the CPA. Such approach has in any event been taken in this Court. In
Takealot Online (R F) (Pty) Ltd v Driveconsortium Hatfield (Pty) Ltd ,10 for
example, the court held in favour of the consumer that it had the necessary
jurisdiction to determine issues arising from those sections of the CPA which
deals with unfair, unreasonable or unjust contract terms (in particular sections
48 of the Act read with section 52 thereof).
14. The CPA contains no express ouster of the court ’s jurisdiction, and one is
mindful of the SCA ’s remarks in Motus Corporation (Pty) Ltd and anot her v
Wentzel in relation to section 69 of the CPA.11
“[25] The section has caused considerable difficulty and is the source of conflicting
“[25] The section has caused considerable difficulty and is the source of conflicting
judgments in the high court. The authors of Commentary on the Consumer
9 Parch Properties supra paras 16-18. My emphasis.
10 [2021] ZAWCHC 280 (11 October 2021).
11 [2021] 3 All SA 98 (SCA) paras 25-27. My emphasis.
Protection Act say that 'the various entities that can be approached for purposes of
redress are not indicated in s 69 in an order that presents a clear picture of the exact
route that a person has to follow in this quest for redress'. Nonetheless they suggest
that the section contemplates a hierarchy of remedies and they make a valiant effort
to describe such hierarchy. The difficulty posed by the notion that the section
creates a hierarchy of remedies is illustrated by cases where the route taken by the
dissatisfied consumer has avoided the applicable ombudsman with jurisdiction in
terms of s 69(b). Requiring dissatisfied consumers to pursue other remedies
under s 69 before approaching the high court under s 69(d) has resulted in the
consumer being non-suited. …
[26] … It suffices to say that the primary guide in interpreting the section will be s 34
of the Constitution and the guarantee of the right of access to courts . Section 69(d)
should not lightly be read as excluding the right of consumers to approach the court
in order to obtain redress. A claim for cancellation of the contract and the refund of
the price of goods on the grounds that they were defective falls und er the actio
redhibitoria and dates to Roman times. Our courts have always had jurisdiction to
resolve such claims and there is no apparent reason why the section should
preclude a consumer, at their election, from pursuing that avenue of relief until they
have approached other entities.
[27] The section is couched in permissive language consistent with the consumer
having a right to choose which remedy to pursue. Those in (a), (b) and (c) appear to
be couched as alternatives and, as already noted, there is no clear hierarchy. Had
that been the aim it would have been relatively simple to set the hierarchy out in a
sequence that would have been apparent, not 'implied', and clear for the consumer
to follow. Furthermore, subsec (d) does not refer to the consume r pursuing all other
to follow. Furthermore, subsec (d) does not refer to the consume r pursuing all other
remedies 'in terms of this Act', but of pursuing all other remedies available in terms
of national legislation. That could be a reference to legislation other than the Act, or
to the remedies under both the Act and other applicable con sumer legislation ,
…Given the p urpose of the Act to protect the interests of the consumer, who will
always be the person seeking redress under it, there is no apparent reason why they
should be precluded from pursuing immediately what may be their most eff ective
remedy. Nor is there any apparent reason why the dissatisfied consumer who turns
to a court having jurisdiction should find themselves enmeshed in procedural niceties
having no bearing on the problems that caused them to approach the court.”
15. In legislation such as the Promotion of Admin istrative Justice Act 3 of 2000 ,
where the exhaustion of internal r emedies prior to turning to the court is
without a doubt required ,12 provision is expressly made for the court to
condone a fai lure to do so where the interests of justice so require .13 No
such provision is made in the CPA. This is a further indication that the CPA
does not contemplate preventing consumers from approaching a court even
prior to having knocked at the doors of the forums listed in section 69.
16. As is clear from the SCA’s remarks in Motus, it is counter-intuitive to hold that
the respondent should have been barred from approaching the court in
circumstances where the CPA itself focuses on the protection of consumers
interests inter alia in ensuring “accessible, transparent and efficient redress”14
for consumers where required.15
17. Section 2( 10), moreover, provides that no “provision of this Act must be
interpreted so as to preclude a consumer from exercising any rights afforded
in terms of the common law”.
18. In the premises, I am of the view that the mag istrates’ court was correct in
holding that it en joyed the necessary jurisdiction to determine the action , and
thus in dismissing the appellant’s special plea.
The merits of the action
19. There was much argument in relation to vari ous defects in the vehicle, but at
its core the case is simple, and it does not bode well for the appellant.
20. It is clear from the evidence that the respondent , who was elderly, was
looking to buy a "bakkie" with his pension money. He wished to start a small
12 Under section 7(1).
13 Under section 7(2).
14 See the preamble to the CPA, read with section 3(1)(h) : “3(1) The purposes of this Act are to
promote and advance the s ocial and economic welfare of consumers in South Africa by - (h)
providing for an accessible, consistent, harmonised, effective and efficient system of redress
for consumers.”
15 Section 2(1) provides that the CPA “must be interpreted in a manner that give s effect to the
purposes set out in section 3.”
landscaping business to make a living post-retirement. He required a 4x4
functionality. It turned out that the vehicle, sold to him by the appellant, was
unsuitable for its intended purpose. It was neither of good qua lity nor in good
working order and free of defects, and it was not usable or durable for a
reasonable period, despite the appellant’s attempts to repair it.
21. It is common cause that the vehicle was purchased from the appellant for
R175 000.00 on 18 August 2016. The respondent took possession on 23
August 2016. On 24 August 2016, the respondent began experiencing
problems with the vehicle, in particular with the ABS and 4x4 systems’
warning lights. On 7 September 2016 a diagnostic inspection performed on
the vehicle returned certain fault codes , indicating potential faults in the
relevant systems (4x4 and ABS). Mr Morris, who was appointed by the
appellant, performed the diagnostics. The respondent effected repairs, which
included the cleaning of the relevant sensors linked to those systems, as well
as the supplying and fitting of an idle pully , the replacement of the front
brakes, and the removal of the control u nit and replacement of the inside
gear.
22. On 16 September 2016 , shortly after the respondent again took possession
of the vehicle, it came to a standstill. The appellant was informed. It took the
vehicle in for fu rther repairs on or about 21 September 2016, whereafter it
was returned to the respondent. On 29 September 2016 the respondent
experienced issues with the exhaust system, which he caused to be
inspected and repaired by Scorpion Exhaust Systems, Strand . It was
discovered that oil or fluid was leaking at the rear of the vehicle. On 30
September 2016, concerned about the overall condition of the vehicle, the
respondent took the vehicle for a further assessment at Dekra in Strand. The
Dekra report, coupled with his experiences in the vehicle, was worrying and,
Dekra report, coupled with his experiences in the vehicle, was worrying and,
in the circumstances, the respondent elected to return the vehicle and
demand a refund of the purchase price. The appellant refused to refund the
purchase price or accept the return of the vehicle.
23. The respondent instituted this action on 16 November 2016, claiming a
refund and resultant damages. As indicated, the magistrate ordered the
refund against return of the vehicle, but not damages.
24. The appellant contended that the respondent had concluded a “limited
warranty” in purchasing the vehicle, which entailed a limited mechanical
warranty of a 1 000km, or one month . This clearly materially curtailed the
extent to which the respondent could rely on the provisions of the C PA. The
evidence in this regard shows, however, that the respondent ’s attention had
not been drawn to the limitation at the time of the purchase of the vehicle. It
was not explained to him that he would be wai ving various of his rights under
the CPA in signing the warranty. The limited warranty was not expressly
conveyed or pointed out to him when signing the sale agreement or any of
other documents signed at the time – fairly hastily, according to the
respondent’s evidence.
25. The respondent testified that, on the date of delivery, he began experiencing
issues with the vehicle, and he informed the appellant shortly thereafter (in
particular as regards the “4x4” and “ABS” systems). He did not attempt to
engage the 4x4 system. Despite the appellant’s attempt at repairing the
vehicle, it broke down shortly thereafter, coming to a stan dstill. The vehicle
was again sent to the appellant for repairs. Within days of again taking
delivery of the vehicle, the respondent experienced a further issue with the
exhaust system which prompted him to have the vehicle inspected and
repaired at Strand Scorpion Exhaust Systems, who advised him that the
vehicle was leaking oil, was unsafe to drive, and that he should have the
vehicle inspected. The respondent had the vehicle inspected by D ekra and,
given the issues and fault codes recorded therein, coupled with the other
issues experienced with the vehicle, he elected to request a refund fr om the
appellant.
26. The respondent’s expert witness, Mr Delport, a qualified diesel mechanic, did
26. The respondent’s expert witness, Mr Delport, a qualified diesel mechanic, did
not take the matter much further. He assessed the vehicle in June 2023. The
Dekra report recorded a fluid leak ( from suspected driveshaft oil seal), which
he estimated would cost between R3,500 and R4,000 to repair. The fault
codes picked up during his diagnostics (and as recorded in the D ekra report)
could be appearing if they had not been cleared previously. He was not able
to confirm if the warning lights w ould be activated, as the vehicle had not
been not driven, and would need to be driven with 4x4 engaged to test
further.
27. Fron the evidence it appears that the appellant had not given the respondent
a detailed description in relation to defects in the vehicle, or explanation as to
what could be exp ected from the vehicle. Notably, in cross-examination the
appellant’s finance manager, Ms Abdeen, testified that the warranties sold to
the respondent were “extras”, because vehicles older than 5 years will usually
go to trade. She has not received any training in respect of the CPA , and did
not advise the respondent on any aspect of the CPA when concluding the
transaction.
28. Mr Lipschitz, the appellant’s dealer principal, testified that the vehicle should
have gone to trade – it would have been sold to a “cheapy dealer” who would
“fix it up” and sell voetstoots. None of the appellant ’s documents referred to
the CPA. This was confirmed by Mr St Clair, also a dealer principal, who was
of the view that this transaction breached policy that the appellant should not
sell vehicles to the public with more than 120,000km s on the clock, or more
than 5 years old. The vehicle was me ant to go to trade. Mr Cuff, the
appellant’s sales executive, confirmed that a vehicle of th is age and millage
would normally go to trade . He could not recall if the respondent had read
through the offer to purchase.
29. The respondent’s evidence was that he had only been told that Ni ssan was a
good brand, what the year mo del and odometer reading w ere, and that the
vehicle was sold “as is”.
30. The appellant made much in argument of the fact that the respondent had
known that he was buying a used vehicle and that he should not have been
known that he was buying a used vehicle and that he should not have been
surprised when the defects were revealed. This argument is glib. On the
appellant’s own evidence th e vehicle ought to have gone to trade . It should
not have been sold to the respondent, particularly not in circumstances where
the relevant provisions of the CPA were toto caelo ignored in the conclusion
of the transaction. The appellant was irresponsible in doing so.
31. There are various provisions of the CPA that come into play.
32. Section 48 of the CPA stipulates that a supplier must not offer to supply,
supply, or enter into an agreement to supply any goods or services o n terms
that are unfair, unreasonable, or unjust. Additionally, a supplier must not
require a consumer, or any person to whom goods or services are supplied at
the direction of the consumer, to waive any rights, assume any obligation, or
waive any liability of the supplier.
33. In terms of s ection 49 of the CPA, a provision in a consumer agreement that
limits the risk or liability of the supplier or constitutes an assumption of risk or
liability by the consumer, or acknowledges any fact by the consumer must be
brought to the consumer's attention in a specified manner. These provisions
must be written in plain language , and t he nature and effect of the notice
must be presented in a conspicuous manner that is likely to attract the
attention of an ordinarily alert consumer. It must be given before the
consumer enters into the transaction.
34. Section 51 of CPA provides that a supplier must not make a transaction or
agreement subject to any term or condition if its general purpose or effect is
to defeat the purposes a nd policy of the CPA or mislead or deceive the
consumer. A supplier must not include terms that directly or indirectly purport
to waive or deprive a consumer of a right in terms of the CPA, avoid a
supplier's obligation or duty in terms of the CPA, set asi de or override the
effect of any provision of the CPA, or authorize the supplier to do anything
that is unlawful in terms of the CPA or fail to do anything that is required in
terms of the CPA.
35. The provisions of section 55 of the CPA state that, except for goods bought at
35. The provisions of section 55 of the CPA state that, except for goods bought at
an auction, every consumer has the 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 a reasonable period of time, considering the use to
which they would normally be put and the circumstances of their supply.
Additionally, it is irrelevant whether a product failure or defect was latent or
patent, or whether it could have been det ected by a consumer before taking
delivery of the goods.
36. Section 55(6) provides an exception to section 55(2)(a) and (b).16 It stipulates
that section 55(2)(a) and (b) does not apply to a transaction if the supplier
has informed the consumer that t he supplier has offered the particular goods
in a specific condition, and the consumer has agreed to accept the goods in
that condition or acted reasonably with accepting goods in that condition.
37. Section 56 provides that in any transaction or agreement fo r the supply of
goods to a consumer, there is an implied warranty that the producer,
importer, distributor, and retailer each guarantee that the goods comply with
the requirements and standards set out in section 55, except if the goods
have been altered contrary to instructions or after leaving their control. Within
six months of delivery, if the goods fail to meet these standards, the
consumer may return them to the supplier without penalty and at the
supplier's risk and expense. The supplier must either repair or replace the
defective goods or refund the consumer. If a supplier repairs the goods and
they fail again within three months, the supplier must replace the goods or
refund the consumer. This implied warranty and the right to return goods are
in addition to any other implied or express warranties or conditions.
16 Section 55(2):
“(2) Except to the extent contemplated in subsection (6), every consumer has a right to
receive goods that-
(a) are reasonably suitable for the purposes for which they are generally intended;
(a) are reasonably suitable for the purposes for which they are generally intended;
(b) are of good quality, in good working order and free of any defects;
(c) will be useable and durable for a reasonable period of time, having regard to the use to
which they would normally be put and to all the surrounding circumstances of their
supply; and
(d) comply with any applicable standards set under the Standards Act, 1993 (Act 29 of
1993), or any other public regulation.”
38. The CPA affords consumers robust protections that significantly limit the
applicability of voetstoots clauses and so -called limited warranties ,
particularly in the sale of vehicles by dealer ships. Section 55 of the CPA
explicitly grants consumers the right to receive goods that are reasonably
suitable for the purposes for which they are generally intended, of good
quality, in good working order, and free of defects. This right is not diminished
by the age or mileage of the vehicle. Age and mileage pertain to the wear and
tear expected from use, but they do not justify the sale of a defective vehicle.
A vehicle, regardless of its age or mileage, must still be free from defects that
impair its functionality, durability and safety.
39. Section 55(6) does not safeguard the supplier against all claims relating to
post purchase quality issues. It only qualifies the first two of the four
standards listed in section 55(2). It will always be open to a co nsumer to
claim that th e goods were not useable or durable for a reasonable period of
time or that they did not meet other statutory requirements. Section 55(6)
clarifies that while a supplier can inform a consumer of a specific condition of
goods, this d oes not exempt the supplier from liability unless the consumer
has been expressly informed and has expressly agreed to accept the goods
in that specific condition. This means that any defects must be clearly and
explicitly communicated to the consumer, and mere reliance on a general
voetstoots clause is insufficient. The description must be detailed enough to
inform the consumer about the specific defects, not just a broad statement
that the goods are sold "as is”.
40. Moreover, section 56 of the CPA introduce s an implied warranty of quality,
ensuring that goods comply with the requirements set out in section 55. This
warranty cannot be easily overridden by a voetstoots clause, as doing so
would conflict with the overarching consumer protection objectives of th e
would conflict with the overarching consumer protection objectives of th e
CPA. Specifically, section 51 prohibits any term or condition in a transaction
that seeks to waive or deprive a consumer of a right provided by the CPA, or
that misleads or deceives the consumer. Section 48 of the CPA emphasizes
that a supplier cannot require a consumer to waive any rights or assume any
obligation on terms that are unfair, unreasonable, or unjust. Given this
provision, any attempt by a dealership to use a voetstoots clause or limited
warranty to circumvent the consumer's right to quality, defect-free goods
would be unfair and thus unenforceable.
41. In the circumstan ces of the present matter, the appellant cannot rely on a
voetstoots clause to absolve itself the responsibility to provide a defect-free
vehicle under the CPA. The sale of a slightly older vehicle with mileage over
120,000kms does not equate to an acceptance of defects by the consumer
on any reading of the CPA. The age and mileage of a vehicle are distinct
from defects: the former relates to normal wear and tear, whereas the latter
refers to faults that impair the vehicle's functionality and safety.
42. To claim a refund under section 56(3), several specific conditions must be
met. In Motus Corporation (Pty) Ltd and another v Wentzel 17 the SCA
provided clarity on these requirements. First, t he supplier must first have
attempted to repair the defective parts of the goods within the six-month
implied warranty period. Second, t he recurrence or discovery of further
defects must occur within three months after the initial repair. The defects can
be the same as the original ones that were repaired or new defects that affect
the goods' functionality, safety, or usability. Third, w hilst section 56(3)
specifies that defects must be "discovered," the court in Wentzel emphasized
that these defec ts should be reported to the supplier. Fourth, t he defects
must be material in nature. Wentzel clarifies that the materiality of a defect
under the CPA is determined by its impact on the core functionality, usability,
and safety of the product. Minor issu es that do not significantly impair these
aspects are unlikely to be considered material defects. Wear and tear issues
are not ex cluded from section 56 as long as they have an impact on the
functionality, usability and safety of the product.18
functionality, usability and safety of the product.18
43. On the evidence, the respondent ’s case satisfied these req uirements. The
nature and impact of the limited warranty was not explained to him, and he
17 [2021] 3 All SA 98 (SCA) .
18 See the National Consumer Tribunal ’s decision in Leutle v Kolev Motors CC
(NCT/136678/2019/75(1)(b)) [2021] ZANCT 26 (20 July 2021) para 30.
never used the vehicle after the final attempt to have it repaired because he
was informed that it was unsafe to driv e. Viewed objectively, the series of
issues experienced with the vehicle substantially undermined its suitability for
the purposes for which it had been purchased. The respondent states that he
would not have purchased the vehicle had he known of the tru e state of
affairs.
44. Although the magistrate did not draw a d istinction in her ultimate finding, it
appears to me that she had come to the correct decision on the facts, either
on the basis of the relevant provisions of the CPA or the common law
principles of the actio redhibitoria.19 As indicated, the respondent had, in his
particulars of claim, relied on both.
Conclusion
45. It follows that the re is no reason to interfere with the magistrate’s court ’s
decisions either on the court’s jurisdiction or the merits of the action.
Costs
46. There is no reason why th e normal rule as to costs should not be followed,
namely that costs should follow the event. The respondent sought a punitive
costs order because of what he c haracterised as the appel lant’s attempted
and belated appeal in relation to jurisdiction, but I do not think that that is
warranted on the facts of this matter. In the exercise of my discretion, I am of
the view that counsel’s fees should be taxed on Scale B as contemplated in
Rule 67A20 of the Uniform Rules of Court.
Order
47. In the premises, I suggest that the following order be granted:
19 See Mkhize v Lourens 2003 (3) SA 292 (T).
20 Which applies to work done after 12 April 2024.
The appeal is dismissed, with costs, inclusive of counsel’s fees taxed
on Scale B.
___________________________
P. S. VAN ZYL
Acting Judge of the High Court
I agree, and it is so ordered.
___________________________
C. N. NZIWENI
Judge of the High Court
Appearances:
For the appellant: Mr H. J. Potgieter
Instructed by: Smit & Hugo Attorneys
For the respondent: Ms N. Essa
Instructed by: Boucher Attorneys