Sold a Lie? Your Legal Rights to a Refund in South Africa

We’ve all been there. You spend your hard-earned money on something, only to discover that what you got is very different from what you were promised. Perhaps that supposedly brand-new phone has clearly been used before, or that second-hand bakkie has a much higher mileage than the seller claimed.

It’s frustrating, especially when you trusted the seller and believed what you were told.

But here’s the good news: South African law does offer protection when a seller misleads you about what they are selling. Depending on the circumstances, you may be entitled to cancel the deal, get your money back, or claim compensation for your loss.

The legal term for a false statement that influences someone into entering an agreement is misrepresentation. Understanding what counts as misrepresentation, and what you can do about it, could save you a lot of money and unnecessary stress.

Let’s look at what the law says and what you can do if you’ve been taken for a ride.

Harmless Sales Talk or an Actual Lie?

Anyone who has ever bought a car knows that salespeople can be pretty enthusiastic about what they’re selling.

You might hear things like, “This is the smoothest bakkie on the road!” or “You won’t find a better deal anywhere in Cape Town.”

This is generally what lawyers refer to as puffery. It is exaggerated sales talk or an opinion that a reasonable buyer would not necessarily take as a definite statement of fact.

However, there’s a big difference between talking up a product and lying about something important.

Imagine you’re buying a second-hand bakkie and the salesperson tells you it has only travelled 80,000 km. You later discover that the odometer has been tampered with and the vehicle has actually travelled 250,000 km.

That’s no longer harmless sales talk. The mileage is an important fact that could have influenced your decision to buy the vehicle.

A false statement about something material to the purchase could amount to misrepresentation and, where a business is involved, potentially a breach of the Consumer Protection Act.

When Does a Sales Promise Become Misrepresentation?

Sometimes the difference between an innocent mistake and deliberate dishonesty isn’t immediately obvious.

Let’s say a car dealer tells you that a vehicle has a perfect engine and is in excellent mechanical condition. You buy it, only for the engine to fail the following day.

The breakdown alone does not automatically prove that the dealer misrepresented the vehicle. However, if the dealer knew about an existing serious engine problem and deliberately concealed it or made false statements to convince you to buy, the situation is very different.

Under section 41 of South Africa’s Consumer Protection Act 68 of 2008 (CPA), suppliers are prohibited from making false, misleading or deceptive representations about material facts when marketing goods or services.

The law also addresses misleading exaggerations, half-truths, ambiguity and the failure to disclose important information where that amounts to deception.

In simple terms, a business cannot deliberately give you the wrong impression about something important just to make a sale.

The circumstances matter, including what was said, what the seller knew, whether important information was withheld and whether the statement influenced your decision.

Everyday Examples of Misrepresentation

Misleading sales claims can happen almost anywhere. Here are a few examples that might sound familiar.

The important thing to remember is that a seller’s promises must not create a false impression about the product or service being offered.

Your Rights as a South African Consumer

South Africa has several laws that protect consumers against dishonest and misleading business practices. The most important is the Consumer Protection Act.

However, your rights depend on the type of transaction, the seller involved and what actually went wrong.

Here are some important protections worth knowing about.

1. The Six-Month Implied Warranty

One of the most useful protections in the CPA is the six-month implied warranty of quality.

Under sections 55 and 56, consumers are entitled to goods that are reasonably suitable for their intended purpose, of good quality, in good working order, free of defects and reasonably durable.

If goods supplied by a business fail to meet these requirements, you can return them within six months of delivery, without penalty and at the supplier’s risk and expense.

You can then choose whether the supplier must:

The choice belongs to the consumer under section 56(2), provided the requirements of the Act are met.

This does not mean you can return anything within six months simply because you’ve changed your mind or no longer like it. The goods must fail to meet the applicable quality standards.

2. The Seven-Day Cooling-Off Period for Online Purchases

Bought something online and changed your mind? You may have a cooling-off right under section 44 of the Electronic Communications and Transactions Act 25 of 2002 (ECTA).

For qualifying electronic transactions, you can cancel:

You do not have to give a reason for cancelling.

The supplier may charge you the direct cost of returning the goods, but cannot impose an additional cancellation penalty under this provision. If you have already paid, the supplier must refund your payment within 30 days after cancellation.

There are exceptions. For example, this cooling-off right does not generally apply to auction purchases, personalised goods, goods that deteriorate quickly, unsealed audio or video recordings or computer software, and certain accommodation, transport, catering and leisure bookings made for specific dates or periods.

Importantly, the seven-day cooling-off right is not conditional on the goods being unopened or in their original packaging.

There is also a separate protection under section 16 of the CPA for purchases resulting from direct marketing. In qualifying cases, you can cancel without giving a reason or paying a penalty within five business days after the later of concluding the agreement or receiving the goods.

This five-business-day right generally does not apply where the ECTA’s section 44 cooling-off provision applies.

3. What If You Want to Keep the Product?

Sometimes you might still want to keep an item even though the seller misrepresented something about it.

For example, you buy a dining table advertised as genuine solid wood, only to discover that it is made from a cheaper material.

You might decide to keep it because it still suits your home. Depending on the circumstances, you may be able to pursue a claim for damages or another appropriate remedy under common law.

Where misrepresentation induced you to enter into the agreement, possible remedies can include cancelling the contract and claiming damages where the legal requirements are satisfied.

The appropriate remedy depends on the facts, including the nature of the misrepresentation and whether it was fraudulent, negligent or innocent.

You do not automatically qualify for a partial refund simply because a seller made an inaccurate statement. The circumstances and applicable legal principles determine what you can claim.

Can a Seller Simply Say the Goods Were Sold “Voetstoots”?

You’ve probably seen the word voetstoots in second-hand vehicle advertisements or private sale agreements.

It essentially means that something is sold in its existing condition, including certain defects.

But does that mean a seller can simply walk away if something goes wrong?

Not necessarily.

The Consumer Protection Act generally applies to transactions involving suppliers acting in the ordinary course of business. It does not automatically cover an ordinary once-off private sale between two individuals.

This means that a private individual selling a personal vehicle or household item may generally sell it voetstoots, subject to the common law.

However, a voetstoots clause does not give a private seller permission to commit fraud or deliberately conceal a defect with fraudulent intent.

Where the CPA applies, a business cannot simply use a voetstoots clause to escape its consumer obligations.

Section 55(6) does, however, recognise circumstances where a consumer has been expressly informed that particular goods are offered in a specific condition and has expressly agreed to accept them in that condition, or has knowingly acted in a manner consistent with accepting them in that condition.

In other words, a business cannot simply write “No Refunds” or “Sold As Is” on an invoice and expect that to cancel your legal rights.

How to Protect Yourself if a Seller Misleads You

If you suspect that a seller has misrepresented a product or service, don’t immediately give up or accept that you’ve lost your money.

A few practical steps can make a big difference.

Get Promises in Writing

If a salesperson makes an important claim about a product, ask them to put it in writing. An email, WhatsApp message, quotation or invoice can help establish exactly what you were promised.

Keep Your Proof

Keep your invoices, proof of payment, advertisements, photographs, screenshots and all communication with the seller.

If you bought a vehicle, for example, keep any inspection reports or evidence relating to its mileage and mechanical condition.

Contact the Seller First

Explain what was promised, what you actually received and why you believe the representation was misleading.

Put your complaint in writing and clearly state what you want, whether it is a repair, replacement, refund or another appropriate remedy.

Give the seller a reasonable opportunity to respond.

Escalate the Complaint if Necessary

If the seller refuses to resolve the matter, you don’t necessarily need to rush out and hire an attorney.

Depending on the nature of your complaint, you can approach the following organisations:

These complaint channels are generally available without consumers having to pay a fee to lodge a complaint, although they do not guarantee that every dispute will result in a refund.

One important point: under section 116 of the CPA, a complaint may not be referred to the National Consumer Tribunal or a consumer court more than three years after the act or omission that caused the complaint, or, in the case of continuing conduct, more than three years after that conduct stopped.

This is not a general rule that every consumer complaint must be lodged within three years of buying something. The relevant date depends on the conduct being complained about.

It is always better to act as soon as possible rather than allow a dispute to drag on.

Don’t Let a Dishonest Seller Get Away With It

Nobody likes feeling

taken for a ride, especially when it involves money they’ve worked hard to earn.

The good news is that South African consumers have legal protections against misleading sales claims, dishonest business practices and goods that fail to meet the standards required by law.

Whether you’ve bought a second-hand vehicle, an expensive household appliance or something as simple as a piece of furniture, you do not have to accept dishonesty as part of the deal.

Keep your proof, understand your rights and take the proper steps to challenge the seller.

Remember: A seller’s promise is not just sales talk when it involves an important fact that influences your decision to buy.

Been Sold a Lie? We Can Help!

If you think you’ve been the victim of misrepresentation, don’t suffer in silence! Contact us today. We can help you understand your rights and take action against the seller to get the compensation you deserve. Remember, knowledge is power, and as a buyer, you have the right to be protected from deceptive sales practices.