Buying second hand can be very expensive in the long run. Marine Machine, together with a legal expert has set up a guide for people wanting to buy privately or second hand from "unauthorised" dealers.

Always wanted that water craft and now you can finally afford it ? Lets look at some facts about buying privately or from non authorised dealers.

Buyers must be aware of agents selling vehicles - such as water craft - with so called "voetstoots" clauses. "Voetstoots" or "as is" clauses are not only dangerous but can also cause buyers to think that they can not claim legal remedy for purchases made. This is not true.

We refer to “Guide to Motor Law – Don Smart (Adv). et al” page 17, par 3.3 – Contracts and “voetstoots” clauses – second paragraph : “A so called “voetstoots” or “as is” sale, is very convenient for the seller who isn’t a dealer. In short, this term means that the seller will not be liable for latent defects. The clause is aimed at protecting the seller, who, not being an expert in motor Vehicles, may be unaware of existing latent, or unapparent defects. The seller cannot escape liability for serious defects s/he is aware of, even under a “voetstoots” clause.”

If you as a buyer purchase an article "Voetstoots" or "as is" you might be liable for expenses with regards to repairs of defects which you might not be aware of.

Should you however take the article back to the seller - within reasonable time - and the seller then agrees to repair the damages you found, this constitutes a new agreement between you and the seller.

An agreement need not necessarily be in writing - verbal agreements are acknowledged in our legal system. It is just more difficult to prove a verbal agreement. Therefore always ensure that you have a witness or try to reduce such agreement to writing.
An agreement is briefly defined as one party agreeing to comply to terms and or conditions that another party has set out, whether for compensation or not. Both parties need to reach consensus to make an agreement valid.
In this case, if you take your defaulting vehicle back to the seller and he/she agrees to repair all damages to your satisfaction - the seller warrants you a service and certain deliverables. This is a new agreement that succeeds any previous agreements. Should this not be done within reasonable time or to your satisfaction and the seller then tries to reply on the "voetstoots" clause, you can reply on legal remedy.

“…warranties form part of the contract and the warrantor’s failure to comply constitutes breach of contract…”

There are various remedies in the legal system for breach of contract. You may rely on any of the following should your case sufficiently classify :

Worst case scenario the seller then informs you that he/she has repaired all such articles and you then later find that this is notentirely true... This may constitute fraud or fraudulent misrepresentation. Fraud is briefly defined as the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another and punishable in the highest regard. There are various degrees of fraud and each case differs. Please consult your attorney for more information.

If the seller however does not agree to repair such damages - depending on what those damages are, you will find it more difficult to apply the above remedies. Then we strongly advise that you get an expert opinion and refer the matter to an attorney.

The South African legal system tries to protect the consumer in every aspect. It does not only damage the economy, but also wastes valuable court time if consumers try to settle disputes by way of legal remedy.

Remember that all legal cases are different. Each case is assessed based on its unique merits and the information above is just for your general information purposes and does not constitute any legal findings, advise or recommendation. MARINE MACHINE compiled this information solely to forewarn you against possible damage and we do not wish to incriminate any person, party or organisation with such information.

To sum up. Rather be safe than sorry. Rather let MARINE MACHINE inspect your potential purchase and guide you in the correct direction.Even if it costs you an hour's labour - it is still cheaper than paying thousands in legal bills and court fees.

NOTE :We are not saying that all private sellers and dealers who are not authorised dealers, are dishonest. We have come upon some amazing deals done privately. We are merely trying to assist you, our valuable client in avoiding that you fall prey to one of the many "sharks" that tries to give our industry a bad name.

It is always better to consult the subject matter expert before signing any agreement or making any commitments. The Automobile Association of South Africa will gladly assist you in doing a pre purchase inspection of any motor vehicle and MARINE MACHINE will gladly assist you in doing a pre purchase inspection of water craft, to establish any hidden defects and give you complete peace of mind.

Enjoy the waters this summer and be careful ! Never take chances, keep others in consideration and apply safety standards.

Safe and happy boating !