Your new cars a lemon heres how to get your money back

“Lemon law, noun – a law that states that you can return a motor vehicle to get it repaired or your money back if the vehicle is no good.” (Oxford Learner’s Dictionaries)

The car you just bought on instalment sale turns out to be a complete lemon. But when you return it to the dealership and cancel the sale, the bank still enforces the finance agreement and sues you for damages.

“Sorry to hear about the defects,” says the bank. “But that’s not our problem. We weren’t the supplier; we just financed the transaction. Your claim is against the dealership. You’re still bound by the instalment sale agreement and must cover our losses.”

Sued by the bank after buying a dud 4×4

A motor dealership in Koster (a small farming town in the North West Province) sold a 5-year-old Ford Ranger 3.2 TDCI 4×4 automatic to a mother, who bought it on behalf of her son with bank financing on an instalment sale basis.

All pretty standard stuff… Until, just four days after delivery, the oil cooler and gearbox started giving problems. The son returned it to the dealership, which replaced the gearbox. But then less than two months later, the vehicle overheated. Unsurprisingly the son returned it to the dealership as a dud that he no longer wanted. His mother, as buyer, formally cancelled the agreement with a lawyer’s letter.

The bank sued her for damages, and while it was successful in the High Court, the SCA (Supreme Court of Appeal) reversed that decision and upheld the buyer’s counterclaim for cancellation of the instalment sale and restitution of everything she had paid the bank. The bank must accordingly refund her the deposit and all the instalments she had paid it, together with interest and costs.

That outcome, and the SCA’s reasoning in reaching it, hold important lessons for all suppliers of goods of all kinds (not just vehicles), buyers, and banks.

When you buy a lemon, here’s how to make lemonade

The buyer’s success hinged on the Court’s findings that:

• The vehicle was seriously defective (probably because the incorrect gearbox had been fitted after an accident) and therefore unfit for its intended purpose.
• The defects were “latent”: hidden problems not visible on inspection.
• The buyer was entitled to rely on the “redhibitory action” (actio redhibitoria to lawyers), an old remedy that allows you to cancel a sale of defective goods, return them to the seller, and claim your money back. You will have to show that the defects existed at the time of sale, and that you, acting reasonably, wouldn’t have bought the goods had you known of the defects.
• The fact that the buyer had allowed the dealership to attempt repairs did not affect her right to cancel because it didn’t amount to a waiver (abandonment) of her rights.
• The Consumer Protection Act (CPA) generally requires consumers to exhaust all alternative dispute resolution remedies (such as referring complaints to the applicable Ombud) before going to court. In this case, however, because the bank had already sued the buyer in the High Court, she could raise her counterclaim as part of the same proceedings without first approaching an Ombud.
• Although the finance agreement itself fell under the National Credit Act (NCA), the vehicle (the goods) was still protected by the CPA – and that, as we shall see below, was critical to the outcome here.
• Equally importantly, the bank was not, as it argued, merely the financier. The wording of its own agreement showed that it acted as both the credit provider and the supplier.
• That’s a critical finding, because as “supplier” of the vehicle, the bank was subject to the CPA’s consumer protections, including the requirement that goods must be fit for purpose, of good quality, and free of defects.

Precedent setting?

After this far-reaching decision banks can no longer say “sorry, we just financed the deal, you must sue the seller”. Of course, any banks with differently worded agreements might still be able to argue that they really were nothing more than the finance providers, but banks generally will no doubt take steps now to mitigate this new risk. Perhaps we can expect much tighter lending restrictions or reworded finance agreements? Time alone will tell what they come up with.

For now, though, whether you are suing the seller or the bank to get your money back, your position will be a strong one if you can prove all the above factors.

Act quickly!

As a final cautionary note, the Court made it clear that you must act (i.e. cancel the sale and return the goods) within “a reasonable time” after discovering the defects.

So don’t delay. If you find out you bought a lemon and the seller refuses to cancel the sale and refund you, call us immediately.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” (Lord Atkin in the groundbreaking 1932 House of Lords decision that found a soft drink manufacturer liable for a consumer’s shock and illness after she discovered a decomposed snail in the remains of her ginger beer.)

A simple burger night turned into an ordeal for a diner who swallowed a “needle-like object” hidden in her meal. The High Court’s confirmation that she can claim damages from the restaurant is a reminder of how strictly our courts hold businesses to their duty of care towards customers.

What happened?

The diner and her husband visited their favourite restaurant in Stellenbosch for burgers and a bottle of wine. Her relaxed night out turned into a nightmare when, halfway through her burger, she felt sudden pain and realised something was stuck in her throat. Panicking after she couldn’t get it down, she rushed to the bathroom, coughing and noticing blood in the basin. A trip to the emergency room confirmed her worst fears: X-rays revealed a “needle-like object” lodged in her oesophagus.

Despite emergency treatment and surgery attempts, she had to endure five days in hospital, repeated scans, and constant distress before the foreign object finally passed. She testified to the pain, humiliation and panic she experienced throughout the ordeal. We can imagine just how high her levels of anxiety must have been when she recalled the story of a family friend who died after swallowing a fish bone that punctured his intestines.

The law: Who’s responsible?

She sued the restaurant for damages, arguing that the business had a clear duty to serve safe food. The restaurant denied responsibility, saying it bought ingredients from trusted suppliers and followed standard food safety practices.

But the Court found that those defences didn’t hold up. The restaurant’s only witness wasn’t on duty on the night in question and could not say what safety checks were actually done. No staff testified about what happened in the kitchen or how such an object could have ended up in the meal.

Let the facts speak for themselves

In the end, the Court applied a well-known legal principle: If something happens that normally wouldn’t occur without negligence, like swallowing a sharp object hidden in food, the facts speak for themselves (“res ipsa loquitur” to lawyers). The business must then explain how it happened and show that it wasn’t at fault.

Here, there was no reasonable explanation. The restaurant controlled every step of the food preparation but failed to show how a foreign object could have slipped in without negligence. The business was found liable for all the harm suffered.

The key takeaways for businesses

This is a clear reminder that, in 1932 as today, if you serve the public, you have a duty to keep your premises and products safe. If something goes wrong, you must be able to prove that you took all reasonable steps to prevent harm. Fail to do this and you could be held liable for negligence.

We can help you check your supplier contracts, disclaimers and risk policies to make sure your business is protected. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.” (Will Rogers, cowboy and actor)

We’ve all seen (and probably ignored) disclaimer notices as we enter shopping centres, restaurants, businesses, hotels, sporting venues and the like. Usually, they read something along the lines of: “All persons enter at their own risk” or “the owner shall not under any circumstances be liable …blah blah blah…”

A legal duty to ensure safety

The restaurant owner in the McDonald’s case we discuss below had accepted that it had “a legal duty to exercise the standard of care expected of a reasonable restaurant operator in the circumstances by ensuring that the premises of the restaurant were safe for patrons to use.”

And therein lies your risk, because that general principle applies to all owners and occupiers of premises which are open to the public. The question is, how well do disclaimer notices really protect businesses from legal claims?

The McDonald’s “slip and trip” case

A customer sued the owner/operator of a McDonald’s in Cape Town. On her way through the restaurant to find a table for a business meeting, she slipped and fell on a recently mopped floor. Her fall was a serious one – in considerable pain, she was carried from the restaurant on a stretcher and underwent operations to her ankle and knee.

She argued that the owners had acted negligently by failing to:

• Keep the floor dry and safe
• Place warning signs showing the wet floor
• Cordon off the wet area to prevent accidents

The owner defended itself both by denying any negligence, and by relying on the disclaimer notice posted at the entrance (bolstered by a “floors may be slippery when wet” sign). It also suggested that the customer had caused, or at least contributed to, her own accident by not keeping a proper lookout, and by walking too fast.

As always, the onus was on the customer to prove her case, i.e. that the restaurant had been negligent, and that its negligence had caused her fall.

In the end, she succeeded in doing both, with the Court accepting that the restaurant hadn’t put up “wet floor” signs to cordon off the wet, slippery area of the floor. This was the nail in the coffin – it hadn’t followed its own cleaning protocols.

The “lady with the mop”

How had the Court reached that conclusion? By applying the “thing speaks for itself” (res ipsa loquitor) doctrine, which says that if the occurrence itself (in this case, the fall) is enough to infer negligence, it’s up to the person being sued to provide a contrary explanation.

The restaurant was unable to give any explanation for the fall which would counter the inference of negligence. The Court noted in this regard that the restaurant hadn’t called as a witness the “lady with the mop”. She had been mopping the floor at the time and was, said the Court, “the only person that could have shed light on whether the cleaning protocols were strictly adhered to.”

This left the Court to hold that the restaurant hadn’t taken reasonable steps to prevent the incident, and that its negligence had caused the fall. Finally, there was no contributory negligence on the part of the customer, so the owner is 100% liable for whatever damages she suffered.

Unless, of course, its disclaimer notice shields it from liability…

“A disclaimer is not an automatic legal shield”

The disclaimer notice read: “All persons entering McDonald’s and using its facilities, including drive-through and parking areas, do so entirely at their own risk. Neither McDonald’s nor it’s (sic) suppliers, employees and or representatives shall be responsible and or liable in respect of any theft and or loss and or damages sustained to property and or the persons of any customer and or employee of McDonald’s whilst on the premises for whatsoever reason. Right of admission reserved.”

The customer did not recall noticing this disclaimer at the entrance, but in any event, as the Court put it (emphasis supplied): “it must be emphasised that a disclaimer is not an automatic legal shield, and must … be evaluated in the context of the overall safety management of the premises.” 

Despite the disclaimer, the restaurant would still be liable if it hadn’t taken reasonable steps to guard against the customer slipping. It was unable to put forward an explanation to counter the inference of negligence, and its failure to follow its own safety protocols sealed the deal.

So, disclaimer notices aren’t foolproof. How can you strengthen yours?

No disclaimer will ever be a watertight defence against liability, but you can strengthen yours significantly by understanding what sort of factors courts are likely to take into account when assessing such claims. We share below some tips on how to address each of these risk factors:

• Disclaimers must be conspicuous, clear and visible: A disclaimer hidden in small print or obscured by a door is unlikely to hold up in court, so maximise visibility by placing signs at entrances where they are easily seen by everyone before they enter the premises. Use legible fonts and contrasting colours.
• Plain, simple language is essential: If a disclaimer is too complex or ambiguous, or uses too much legal jargon, courts may interpret it against you or accept that your customers may not have understood it.
• The Consumer Protection Act (CPA): The CPA does not allow disclaimers that exclude “gross” (extreme or total) negligence, and it requires that such notices be conspicuously drawn to the attention of consumers, who must also be treated fairly, reasonably, and justly. We can help you draft signs that comply.
• Disclaimer or no disclaimer, you must still take reasonable safety measures and give warning of any risk areas: Warning signs and proactive safety practices and protocols will reduce your risk of liability substantially.

If you need guidance on drafting effective disclaimer notices tailored to your business, or help with your risk management practices, we’re always here to help. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“The scariest thing about digital abuse is how a victim can never know how far it went, how many people it reached, and how much those who saw it bought it.” (Psychology Today)

Our laws are always protective of our rights to privacy and dignity, and a recent High Court decision confirms that defamation can be a very costly business for perpetrators.

In serious cases such as those involving “revenge porn” (a term commonly used to describe “the publication of non-consensual intimate images, recordings or depictions”) offenders face criminal prosecution as well as substantial damages claims. As evidenced by a recent High Court default judgment ordering a husband and wife to pay their victim R3.55m in damages. This after they used a fake Facebook profile and other channels to disseminate explicit images and videos of her. 

The married man, his wife, and their victim

The victim (a highly qualified professional woman) was misled by a married man into thinking that he was single. A romantic relationship developed and deepened to the stage where he proposed marriage, and she accepted. We can only imagine her horror when, six months down the line, the man’s wife appeared out of the ether with the shocking disclosure that he was already married – with one child at home and another on the way. 

The victim immediately broke off the relationship, which is when her ordeal began. The husband and wife took turns to attack her, initially with reference to what the husband called “porno videos” – explicit and intimate images and videos which he had recorded without her knowledge or consent. 

The details make for grim reading, but they are important in understanding the Court’s award of substantial damages:

• Firstly, the husband refused to stop seeing his victim. He visited her workplace, ignored her attorney’s letter demanding he stop communicating with her, and threatened to send the videos to her attorney, family and friends. 
• He then created a fake Facebook profile in her name, sent her a video clip to show what he had on her, then invited her friends, family, and professional colleagues to join this fake profile. He went on to publish the videos, threatening to send them to “everyone” if she did not sleep with him. They were unfortunately seen by her friends, family, and strangers before she could get the page taken down. 
• The second perpetrator, the man’s wife, appears to have joined in at this stage, with comments on the victim’s fake Facebook profile “calculated to defame her and depict her as a dishonest, immoral, promiscuous and adulterous person who is a disgrace to her family and profession.” The wife then took her attack directly to the victim’s workplace, barging in to her offices and making highly defamatory, embarrassing, and humiliating communications to her colleagues. An email to the victim’s bosses stated that she was a homewrecker and “was not an asset to the company if she slept with married men.”
• Embarrassed, humiliated and unable to continue working, the victim was so emotionally distressed that she considered suicide. Stress-related medical problems, fear of going out or of forming personal relationships, and fears for her own and her family’s safety led to severe emotional trauma. She remains on medication for PTSD (post-traumatic stress disorder) and is also under long term treatment by a psychologist. 

The Court had no hesitation in awarding her both the damages she claimed in full – a precedent-setting R3.55m – and legal costs against the perpetrators on the punitive attorney and client scale.

But that’s not all – criminal liability could loom

The victim in this case had obtained a protection order against her tormentors. A breach of this could expose them to sentences of 5 years’ imprisonment if she decided to pursue the matter. 

The husband and wife could also face serious criminal charges under the Films and Publications Amendment Act, with penalties of up to a R300,000 fine and 4 years’ imprisonment “for knowingly distributing private sexual photographs and films in any medium, including the Internet and social media, without the prior consent of the individual”. Moreover, the Cybercrimes Act criminalises “the disclosure of data messages of intimate images where the intimate image violates or offends the sexual integrity or dignity of the person or amounts to sexual exploitation”. That Act provides for fines and up to 3 years’ imprisonment for offenders. 

None of this does anything to change the victim’s suffering – but knowing that the law is on her side might provide her some solace as she inches towards recovery. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“He that filches from me my good name robs me of that which not enriches him and makes me poor indeed.” (Shakespeare)

As our lives move increasingly online, more and more of us will be subjected to the distress and damage of online attacks. Whether they are aimed at hurting us personally or at harming our businesses, they can take a substantial toll both materially and psychologically.

What can you do if you (or your business) falls victim? The good news is that in appropriate cases our courts will come to your rescue robustly and with speed, as evidenced by a recent High Court decision.

Your legal protections

Before we discuss the facts and outcome of that case, let’s make a general note that as a victim of any defamation you have a choice of legal weapons available to you. A claim for damages can be highly effective but it is, as the Court here put it, a backward-looking remedy essentially suitable for redressing past defamation.

Where on the other hand you are being subjected to, or fear being subjected to, ongoing defamatory attacks, ask your lawyer about applying urgently for an interdict. As in the case we discuss below, it can provide powerful, quick and effective protection.

You could also try laying a criminal charge of crimen injuria (criminal impairment of another’s dignity) but perhaps don’t hold your breath on that one.

A property developer’s reputation vindicated, and an extortion attempt punished

• A company undertaking a large property development employed a roofing contractor which, after a fall out, started publishing defamatory statements about the developer on a local WhatsApp group and Facebook.
• Amongst other things the posts accused the developer of acting unlawfully for financial gain, creating a potentially life-threatening situation, dishonesty, not carrying out necessary remedial actions, defrauding the Municipality, exploiting elderly clients, selling uninspected and potentially dangerous homes, not following proper safety standards – the list goes on.
• The Court found no truth at all in any of these allegations and rejected for lack of proof the roofing contractor’s defence of “truth and the public benefit”.
• Particularly damningly perhaps, it held that the contractor had tried to extort payment of its outstanding invoices in return for its silence.
• The Court accordingly interdicted the contractor from continuing with the defamatory posts (online or otherwise), directed it to publish a copy of the court order on the online channels in question, and ordered it to pay legal costs on the punitive attorney and client scale.

The end result, which is a vindication of the developer’s position and an expensive lesson in the law for the roofing contractor, will give much heart to other victims of this sort of harassment.

Bottom line for victims – don’t take social media defamation lying down!

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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