We Buy Cars Cape Town non-compliant with Consumer Protection Act

On the 3rd of August 2019 I bought a 2010 BMW 335i from We Buy Cars in Cape Town, the salesman Julian Burns assisted me in finding the vehicle as it had full service history and was in a great condition.

On the 23rd of August, less than 3 weeks after buying the vehicle, a warning light appeared on the vehicle and the car immediately stopped driving normally, with jerky acceleration and a very rough idle prompting me to immediately drive it to BMW to get inspected. A day later I learned that there was over R88 000.00 worth of repairs which needed to be done.

On 25th August I made contact with We Buy Cars and was asked to speak to Stefan Le Roux to see if he would assist me with this issue. They collected the car and got a repairman Leon from L&M Automotive Performance to inspect the vehicle. They them advised me that the issue was not what BMW had claimed and that it was in fact Carbon Buildup which was a wear and tare issue and as such, I must pay for the repairs. At this stage I was weary and sent them a letter of demand as the contradictory diagnoses caused alarm bells.

On 11 September they responded by stating that their contract absolved them from the Consumer Protection Act and that I must go take it up with the Consumer Ombudsman.

In need of a vehicle, I paid the R6 325 to Leon from Automotive Performance and was assured on 17th September 2019 when I collected the vehicle that everything was fine and the vehicle was driving fine.

On the 18th of September, the very next day, the same engine warning light came up again and the car started shuddering and instructed me to once again take it to a BMW Service Centre to get fixed.

We Buy Cars refuses to assist me in any way as they claim that in their contract in plain english there are clauses which strip away my rights in terms of the CPA, but is this objectively ******* as is outline in the very act which they seek to circumvent which clearly states in Section 48 (1) (c) (i) and (iii)

And below I have copied that section of the consumer protection act

Unfair, unreasonable or unjust contract terms 48. (1) A supplier must not— (a) offer to supply, supply, or enter into an agreement to supply, any goods or services— (i) at a price that is unfair, unreasonable or unjust; or (ii) on terms that are unfair, unreasonable or unjust; (b) market any goods or services, or negotiate, enter into or administer a transaction or an agreement for the supply of any goods or services, in a manner that is unfair, unreasonable or unjust; or (c) require a consumer, or other person to whom any goods or services are supp**** at the direction of the consumer— (i) to waive any rights; (ii) assume any obligation; or (iii) waive any liability of the supplier, on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a transaction.

Below I have copied a summary of the Consumer Protection Act which We Buy Cars is seeking to undermine, it is a cornerstone of our rights as consumers and it is highly ********* for them to ask me to waive my rights in the contract. Here is a summary of the CPA according to the following site: https://www.bregmans.co.za/second-hand-car-dealers-cpa/

Second hand car dealers and the CPA

What happens if the second-hand car that I just bought turns out to be defective?

You need to distinguish between a private sale (where you buy from someone who does not sell cars every day) and a motor dealer who sells cars in the ordinary course of business.

If you buy a car from a private seller, only the common law will assist and you can’t rely on the Consumer Protection Act (CPA) for help. The protection that you enjoy under the common law is the subject of another article. In short, when you buy something, there is an imp**** warrantee that the thing sold is free from any defects. It is, however, possible that one can contract out of this imp**** warranty by inserting a term into the contract that says that the sale is voetstoots (that you buy the goods “as is” [warts and all] and cannot rely on the imp**** right to defect-free goods and complain later if you find certain defects in the goods).

In the context of buying a second-hand car: The CPA applies to consumers and suppliers of goods; A consumer, is a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, to buy a second-hand car; A supplier is a person who supplies second-hand cars in the ordinary course of his business; The CPA contains certain prohibited provisions that prevent a motor dealer from entering into a sale agreement with a consumer that contains provisions that: defeats the purposes and policy of the CPA; directly or indirectly waives or deprives a consumer of a right entrenched in the CPA; avoids a supplier’s duty in terms of the CPA; sets aside or overrides the effect of any provision contained in the CPA; limits or exempts a supplier of goods or services from liability for any loss attributable to the supplier’s gross negligence.

The regulations to the CPA provides that a term that that excludes or restricts the consumer’s rights or remedies against the supplier, or limits the supplier’s obligation to honour his or her obligations, shall be presumed to be unfair and unreasonable;

The CPA contains an Imp**** Warrantee of Quality that in any transaction or agreement pertaining to the supply of goods to a consumer: There is an imp**** provision that the producer or importer, the distributor and the retailer each warrant that the car is safe and of good quality; The imp**** warranty is in addition to any other imp**** warranty imposed by the common law or any other public regulation as well as any express warranty or condition that the consumer has in respect of the goods; This warranty is valid for a period of six months. The six-month period is calculated from the date of delivery of the car to the consumer. During this period, the consumer may return the defective car without penalty and at the supplier’s risk and expense.

When a consumer relies upon the imp**** warranty of quality when returning the car, the consumer has the election as to whether the supplier must repair or replace the car, or whether the supplier should merely refund the consumer the price paid for the car. If the consumer elects that the dealer must repair the car, if within three months of repair the failure or defect is not remedied or another failure or defect arises, the supplier must replace the car or refund the consumer the price paid by the consumer for the car. The imp**** warranty entrenched in the CPA is in addition to any other imp**** warranty or condition imposed by the common law or any other public regulation, and, is in addition to any express warranty or condition given by the producer or importer, distributor or retailer. Car dealers think that they can get out of their obligations under the CPA merely by getting the buyer to sign a contract containing a voetstoots clause. This is wrong. The only way that dealers can get past the imp**** warranty is by advising the consumer that the car is being offered in a certain condition. The consumer must then agree to accept the goods in that particular condition. E.g. a motor dealer should explain that the beat-up Volksie is not new, point out the obvious and not-so-obvious defects and if the consumer accepts this, then the sale would be as-is. The dealer should describe the condition of the goods in specific detail to make it clear in which condition the car is being sold. The buyer then must “expressly agree” to accept the goods. Only if the buyer “knowingly acted in a manner consistent with accepting goods in (a less than ideal) condition” would the imp**** warranty of quality fall away. Every defect must be described in the contract of sale that the buyer signs.