Facts

To set the scene, the following facts are relevant – the dispute arose following the sale of a second-hand truck intended for business use for the delivery of coal by the purchaser. Shortly after delivery, the vehicle experienced repeated mechanical failures, including serious fuel system and engine related problems, rendering it unsafe and unusable. The purchaser initially sought assistance from the Motor Industry of South Africa and thereafter lodged a complaint with the National Consumer Commission (Commission), following the supplier’s failure to replace the vehicle, notwithstanding the purchaser’s repeated requests. In response, the supplier sought to rely on the terms of the sale agreement, including a voetstoots clause and a limited contractual warranty, to avoid liability for the replacement of the vehicle.

Following success by the Commission, on behalf of the consumer, in the proceedings before National Consumer Tribunal (Tribunal), the supplier appealed against the Tribunal’s findings to the High Court. The High Court endorsed the approach taken by the Tribunal and made it clear that section 55(2) of the CPA remains central to any sale of goods. This provision gives consumers the right to receive goods that are reasonably suitable for their intended purpose, of good quality, in good working order and free of defects; unless the consumer has been expressly informed of the specific condition of the goods and accepted them on that basis. Importantly, the court confirmed that these protections apply equally to second hand goods. Simply describing goods as “used” or selling them voetstoots does not absolve the supplier from complying with section 55(2) of the CPA.

Finding

What is said – and not said – by a supplier when selling goods remains critical. The High Court held that representing goods as reliable or fit for purpose, while failing to disclose known defects or material risks, may amount to misleading, and perhaps even unconscionable conduct under the CPA. Misrepresentation is not limited to outright false statements. It may arise from omissions and from creating an overall impression of the product that does not reflect the reality. For suppliers, this underscores the importance of careful and accurate disclosure when marketing and negotiating sales, particularly where consumers rely on the supplier’s experience or advice.

The supplier’s reliance on the sale agreement fell short where it was inconsistent with the CPA. Any attempt to limit the rights conferred on consumers by the CPA, whether through reduced warranties, disclaimers or standard form voetstoots terms, is unenforceable if it conflicts with the minimum protections afforded to consumers in terms of the CPA. This means that carefully worded sale contracts cannot be used to dilute statutory consumer protections.

Lessons from this judgment

The judgment provides important guidance on the CPA’s enforcement framework. Consumer complaints may escalate from the Commission, which investigates alleged contraventions of the CPA, to the Tribunal, which has the power to declare conduct prohibited and to make binding remedial orders, including refunds or replacements. The courts, when approached on appeal, do not re-hear the matter afresh but assess whether the Tribunal’s findings are supported by the evidence and whether the CPA was correctly applied. Where the Tribunal has acted within its statutory mandate, the courts will be reluctant to interfere.

Of particular significance is the High Court’s clarification of where the onus lies in consumer disputes. While proceedings before the Tribunal are determined on a balance of probabilities, the court in Edan Traders confirmed that a consumer is not required to prove the technical cause of a defect in certain circumstances. Where serious problems arise shortly after delivery, such a sequence of events is sufficient to justify an inference that the goods were defective at the time of sale. That being the case, the onus rests on the supplier to rebut such inference and to establish that the problems arose from the consumer’s misuse or negligence. This has important compliance implications for suppliers – to ensure that the condition of goods sold are properly documented at the time of sale in the event that the goods may fail soon after delivery.

The message for businesses operating in consumer markets is clear: the CPA continues to set a firm baseline for quality, disclosure and fairness. Second hand goods are not exempt, and voetstoots clauses are not a shield of protection from liability for suppliers. Compliance requires more than contractual disclaimers – it requires transparency and a realistic assessment of the risks that suppliers retain long after the sale is concluded.

For suppliers, the Edan Traders decision is a stark reminder that the CPA’s enforcement framework has real and immediate commercial consequences. CPA compliance is not optional, it is a critical legal, financial and reputational consideration for any business supplying goods to consumers.