Latent defects: When is the Consumer Protection Act applicable?

30 May 2019

When purchasing a product, consumers have fundamental rights that are protected by the Consumer Protection Act 68 of 2008 (CPA).

What is a defect?

A ‘defect’ is a material imperfection in a product that causes the product to be less acceptable, or not useful at all, for the purpose that you purchased it for.

What is a latent defect?

A ‘latent defect’ is a material defect, which was not visible after ‘reasonable’ inspection. The material imperfection must have existed when the parties entered into the contract.

Section 55(2) of the CPA provides that; all goods must be reasonably suitable for the purposes for which they are generally intended, of good quality, in good working order and free of any (not only material) defects. The goods must 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.

When a latent defect is present, it means that the product lacks the quality promised in terms of the sales agreement. The consumer has the choice of a refund, replacement or repair of the goods in terms of section 56. This can also be regarded as an implied warranty.

What is an implied warranty?

In terms of section 56(1) of the CPA, any transaction or agreement is subject to an implied warranty by the producer, retailer or supplier, to the effect that any products produced, supplied or distributed should comply with the quality requirements and standards.

This is not applicable if the consumer was informed of the specific condition of the products and the consumer expressly accepted the product on that basis or knowingly acted in a way compatible with accepting the product in that condition.

A consumer may return the product to the supplier within six months, without penalty, at the supplier’s risk and expense. If the product is returned, a supplier must, at the direction of the consumer, either repair or replace the defective products, or refund the purchase price, provided that if a supplier repairs the returned product unsuccessfully, the supplier is obliged, within three months thereafter to repair, replace or refund the consumer the purchase price of the returned product.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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