The Consumer’s Right to Safe, Good Quality Goods and the Implied Warranty of Quality Under Sections 55 and 56 of the Consumer Protection Act 68 of 2008

• Jurisdiction: South Africa
• Date: 25 May 2019
• Citation: (2011) 23 SA Merc LJ 336
• Author: Tjakie Naudé
• Published date: 25 May 2019
• Pages: 336-351

The Consumer’s Right to Safe, Good Quality

Goods and the Implied Warranty of Quality

Under Sections 55 and 56 of the Consumer

Protection Act 68 of 2008

TJAKIE NAUDÉ*

University of Cape Town

1 Introduction

Chapter 2 Part H of the Consumer Protection Act, 68 of 2008 (‘the CPA’)

protects the consumer’s ‘right to fair value, good quality and safety’.

1

This

contribution focuses on two sections in this part of the Act, namely section 55,

headed ‘Consumer’s right to safe, good quality goods’ and section 56, headed

‘Implied warranty of quality’. In the course of explaining the contents of these

sections, problematic aspects will be identif‌ied. Some brief comparisons will

also be drawn with the EC Consumer Sales Directive

2

and the Proposal for a

Regulation of the European Parliament and of the Council on a Common

European Sales Law (‘CESL’)

3

Reference will also be made to proposals

made by the Law Commissions of England and Wales and of Scotland on

consumer remedies for faulty goods.

4

1 Scope of application of the CPAin respect of the supply of

goods

In brief, the CPAapplies to the supply of goods or services to a consumer in

the ordinary course of the supplier’s business for consideration, where the

transaction occurs within the Republic.

5

As sections 55 and 56 are concerned

with the supply of goods, services will not be considered further here. A

supplier of goods is someone who ‘markets’, that is ‘promotes or supplies’

* BA LLB LLD (Stell). Professor in the Department of Private Law, University of Cape Town. I

benef‌ited from discussions with Dale Hutchison and Elizabeth de Stadler of a few of the issues

discussed in this article. None of the views herein should be ascribed to them, however. e-Mail:

tjakie.naude@uct.ac.za.

1

This is the heading of Chapter 2 Part H.

2

Directive 99/44/EC on Certain Aspects of the sale of Consumer Goods and Associated Guarantees,

OJ (1999) L 171/12. This is a ‘minimum harmonization directive’, which sets minimum levels of

protection for European consumers. Countries may therefore provide for stronger protection in their

national legislation.

3

COM (2011) 635 f‌inal. It was published in 2011 and is proposed to be an optional instrument which

traders can choose to apply to their corss-border contracts with other traders or consumers.

4

The Law Commission and The Scottish Law Commission Consumer Remedies for Faulty Goods

(LAW COM No 317; SCOT LAW COM No 216)(2009).

5

See the def‌inition of ‘transaction’ in s 1.

336

(2011) 23 SA Merc LJ 336

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any goods. This includes selling, renting, exchanging and hiring the goods in

the ordinary course of business for consideration.

6

‘Goods’ are widely def‌ined as including

‘(a) anything marketed for human consumption;

(b) any tangible object not otherwise contemplated in paragraph (a), including any medium

on which anything is or may be written or encoded;

(c) any literature, music, photograph, motion picture, game, information, data, software,

code or other intangible product written or encoded on any medium, or a licence to use

any such intangible product;

(d) a legal interest in land or any other immovable property, other than an interest that falls

within the def‌inition of ‘service’ in this section; and

(e) gas, water and electricity’.

7

‘Consideration’ is widely def‌ined as anything of value given and accepted

in exchange for goods or services.

8

It is irrelevant whether the supplier

‘(a) resides or has its principal office with or has its principal office within or outside the

Republic;

(b) operates on a for-prof‌it basis or otherwise; or

(c) is an individual, juristic person, partnership, trust, organ of state, an entity owned or

directed by an organ of state, a person contracted or licensed by an organ of state to offer

or supply any goods or services, or is a public-private partnership; or

(d) is required or licensed in terms of any public regulation to make the supply of the

particular goods or services available to all or part of the public’.

‘Ordinary course of business’ is not def‌ined in the CPA. In Amalgamated

Banks of South Africa Bpk v De Goede en ’n ander,

9

the SCA held (in

interpreting this phrase in the Matrimonial Property Act, 88 of 1984) that it

was irrelevant whether or not the person in question conducted such

transactions regularly: the issue was whether the person performed the juristic

act in question in the ordinary course of his business.

10

A single, isolated

activity (such as the act of standing surety in the De Goede case) could in

proper circumstances be regarded as being performed in the ordinary course

of business. The test for determining whether a contract falls within the

ordinary course of a party’s business is whether the conclusion of the contract

falls within the scope of that business and whether the transaction is one with

commonly-used terms that ordinary businessmen would normally have

entered into in the circumstances.

11

Case law on income tax accept that if

6

See the def‌inition of ‘supply’ in s 1.

7

Section 1 sv ‘goods’.

8

Section 1 sv ‘consideration’. The def‌inition states in addition that consideration includes:

‘(a) money, property, a cheque or other negotiable instrument, a token, a ticket electronic credit,

credit, debit or electronic chip or similar object;

(b) labour, barter or other goods or services;

(c) loyally credit or award, coupon or other right to assert a claim; or

(d) any other thing, undertaking, promise, agreement or assurance;

irrespective of its apparent or intrinsic value, or whether it is transferred directly or indirectly, or

involves other parties in addition to the supplier and consumer.’.

9

1997 (4) SA 66 (SCA) 75–8.

10

The court had to interpret this phrase as it appears in section 15(6) of the Matrimonial Property Act

88 of 1984.

11

See also Ensor NO v Rensco Motors (Pty) Ltd 1981 (1) SA 815 (A) 824–5 (the test is whether the

alienation was one which would normally have been transacted by a solvent businessman carrying on a

business of that kind and regard is to be had to what is done or would be done in other similar

businesses in similar circumstances).

ASPECTS OF PASSING OFF INA STATUTORYCONTEXT 337

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