Warning for anyone buying or selling a used car in South Africa

South African used car buyers and sellers have to navigate a potential minefield of fraud and misrepresentation, with industry bodies calling for government intervention.

South Africans who sell their vehicles privately are often protected by the so-called “voetstoots” clause in the sales agreement.

But legal experts have warned that it won’t cover them from intentional misrepresentation.

The voetstoots clause is a common feature of most sale agreements when dealing with vehicles or even immovable property.

The provision is that the purchaser agrees to buy the car or property as it stands, indemnifying the seller against claims of damages and defects, whether visible or latent.

Latent defects are ‘hidden flaws’ that are not easily seen or observed during inspections which may impair the utility of the vehicle or property for its intended purpose.

While the voetstoots clause is included to protect sellers from claims down the line, South Africa’s courts have made it clear that it is not a blanket protection.

According to legal experts, in cases where sellers have knowingly hidden defects or misrepresented the state of the vehicle or property, the voetstoots clause could fall away.

A seller is typically shielded from liability under a ‘voetstoots’ clause unless they knew of the defect and deliberately withheld the information or acted fraudulently.

A misrepresentation, on the other hand, is when a seller falsely represents that goods are free of defects or intentionally conceals critical flaws to get the buyer to make the purchase.

In such an event, the buyer may be able to rely on this misrepresentation to cancel the sale. A new case shows that voetstoots can also fall away when there is an oral contract of sale in place.

Law firm Wright Rose-Innes flagged a case in 2025 where the court found in favour of a purchaser, when it was proven that the seller had materially mispresented the condition of a second-hand vehicle.

The vehicle was sold to the applicant, falsely described as “accident-free” with a “full-service record.”

Upon discovering that the vehicle had extensive latent defects and had been involved in a prior collision, the purchaser sought to cancel the sale and reclaim his payment on the grounds of misrepresentation.

“The court ordered that the purchaser was entitled to cancel the oral contract of sale and claim restitution based upon the misrepresentation,” it said.

“The takeaway is that a ‘voetstoots’ clause cannot be used as a shield for fraudulent behaviour and that honesty is critical when selling goods.”

Unfortunately for buyers in South Africa, honesty is not always part of the deal, and there are limited options for making sure you’re not buying a dud.

Beware when buying a second-hand car

There have been several court cases over the past few years raising red flags about dodgy second-hand purchases in South Africa, where bargain hunters have been left with a wreck.

Industry bodies such as the South African Motor Body Repairer’s Association (Sambra) have reported growing instances of unsuspecting buyers ending up with vehicles that have been written off in accidents and salvaged.

“Many cars classified as Code 2 (Used) in eNaTIS records may have been involved in severe accidents or declared uneconomical to repair by the relevant insurer, and are still being marketed through online platforms, deceiving consumers and creating safety risks,” the group warned.

Juan Hanekom, national director of Sambra, said that the current testing regime to root these vehicles out is not comprehensive enough, and that even a roadworthy check is not a safeguard.

“We only check for visible signs of damage, but if sub-standard repairs to a car is well concealed, it is difficult to detect accident damage within the scope and equipment constraints of a roadworthy inspection.”

While there are pathways for buyers to take action and get their money back — like the Motor Industry Ombudsman — Sambra has called for a more dedicated legislative approach.

The industry body has been pushing for South Africa to develop a full vehicle salvage database, which would provide comprehensive information about vehicles to consumers, dealers, banks, and repairers.

In 2023, the South African Insurance Association (SAIA) launched a web-based tool for consumers to check on the status of a vehicle using its Vehicle Identification Number (VIN).

The VIN provides information about the vehicle’s manufacturer, model, year, and other details, such as whether it was involved in a wreck or has other issues.

However, Sambra said that, while this is good progress, more needs to be done. “It only scratches the surface and unfortunately does not address the full magnitude of the problem,” it said.

The group said the government needs to draft new legislation that defines vehicle code statuses and integrates them into the existing eNaTIS system.

“This is the key to unlocking a transparent vehicle history database accessible to all stakeholders,” it said.

Sambra said the government also needs to rethink vehicles codes, proposing new labels based on the extent of the damage.

For instance, Code A: Irreparable; must be crushed; Code B: Non-repairable body but with salvageable parts and Code N: Non-structural damage; can be repaired to a roadworthy condition, etcetera.

“The infrastructure for such a system already exists in South Africa. We simply need to legislate the codes,” it said.