Since the enactment of the CPA, the question whether goods can still be sold ‘voetstoots’ or ‘as is’ has been a hotly debated topic. The short answer is that ‘voetstoots’ clauses as we know them are no longer acceptable in transactions where the CPA applies. This will cause difficulties for suppliers of second hand goods or low quality (but consequently cheap) goods.*
Why do I say it is not applicable?
The point of departure is that consumers have the right to goods which meet the standards and requirements listed in section 55(2) of the CPA. They are that goods must:
- be reasonably suitable for the purpose for which they are generally intended or suitable for any specific purpose which was communicated to the supplier;
- be of a good quality, in good working order and free of defects;
- be useable and durable for a reasonable period of time; and
- comply with any other legislation which regulates their quality.
A seller will no longer be able to rely on a ‘voetstoots’ clause or a clause which provides that the goods are sold ‘as is’, because such clauses preclude buyers from claiming against sellers for sub-standard or defective goods. Why is it no longer available to a seller? This is the result of section 51 which provides that a seller may not contract out of the CPA. Because the buyer is entitled to return, repair or replace goods which do not comply with the quality requirements, a seller cannot rely on a term which deprives the consumer of that right.
Section 55(6) does provide some relief in this regard, but it does not breathe life into the ‘voetstoots’ clause. It provides that a consumer cannot rely on the fact that the goods were not fit for their ordinary purpose, of inferior quality or defective if the consumer ‘has been expressly informed that particular goods were offered in a specific condition’ and ‘has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.’ This means that if a seller points out a defect to a consumer before the sale and the consumer still buys the product, the consumer cannot hold the seller responsible for that defect. This could also mean that a seller could tell a consumer that goods are used or are factory rejects as a result of which they will be cheaper, but a consumer cannot return them if they are defective. In other words, pointing out the heightened risk of the goods being defective may be enough. Any clause inserted in terms of section 55(6) must be in plain language and the fact, nature and effect of the clause (ie that the consumer will not be able to claim) must be pointed out to the consumer. If this is not done, the clause will not be valid (see section 49).
Suppliers should also note that, 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 above. It will always be open to a consumer to claim that the goods were not useable or durable for a reasonable period of time or that they did not meet other statutory requirements. This right can never be excluded (this decision by the legislature is quite strange, but until such a time that it is changed, suppliers will have to live with it).
There are other ways in which suppliers can protect themselves in addition to section 55(5). The definition of ‘defect’ and all the standards to which a consumer is entitled hinge on the consumer’s reasonable expectation of the goods or what the goods are reasonably capable of.