Can A Solar System Vendor Be Held Liable For Concealed Defects?

Yes — a solar system vendor in South Africa can be held liable for concealed (latent) defects in the system supplied or installed, both under the Consumer Protection Act 68 of 2008 and under the common-law remedies that still apply alongside the Act. Under the CPA, every supplier gives an implied warranty of quality (section 55) that the goods are reasonably suitable for the purpose they are generally intended for, and a consumer may demand repair, replacement, or refund within six months of delivery (section 56). Under common law, the consumer may also claim for a latent defect — one that could not reasonably have been discovered on inspection before purchase — and the usual voetstoots clause does not protect a seller who knew, or ought to have known, about the defect and remained silent. The practical route for a buyer who has discovered a concealed solar-system defect is to put the vendor on written notice, demand a remedy under section 56, and treat the matter as a credit-worthy claim if the vendor refuses or delays.

The Short Answer: Yes — on Two Parallel Tracks

A solar-system buyer in South Africa who discovers a concealed defect has two simultaneous legal routes against the vendor. The two routes are not mutually exclusive — most claims are pleaded in the alternative, and the stronger route depends on the timing, the nature of the defect, and the size of the consequential loss.

Route	Statutory basis	Key feature
Statutory	Consumer Protection Act 68 of 2008 — sections 55, 56, and 61	Automatic implied warranties and a six-month remedy window from delivery
Common-law	Latent-defect claim grounded in the duty to disclose	Voetstoots available only where the seller was genuinely unaware of the defect

Because the two frameworks operate on different evidentiary requirements and different limitation periods, an experienced consumer-contract attorney will normally run the file on both tracks until one crystallises. Burger Huyser Attorneys fields these claims through its Commercial Law & Contracts practice and its General Litigation practice, with the Commercial Law bench led by J’Retha van Rensburg and the litigation bench led by directors including Anna-Mi Nel and Nadine Roesch-Prinsloo.

Common-Law Baseline: Latent vs. Patent Defects and Voetstoots

The common-law distinction between latent and patent defects is the foundation of any concealed-defect claim. The categories are not arbitrary — they determine whether the buyer is taken to have accepted the defect on purchase or whether the seller remains on the hook.

• Patent defect. One a reasonable buyer would have noticed on a careful inspection before purchase. The buyer is generally taken to have accepted it.
• Latent (concealed) defect. One a reasonable buyer could not have discovered on inspection. It does not pass with the purchase even where the contract says voetstoots.
• Voetstoots defence. The clause fails where the seller knew of the defect, or ought reasonably to have known, and remained silent — silence on a known latent defect is treated as misrepresentation.

Common-law remedies for a latent defect are well established: rescission (cancellation) of the sale, or abatement (reduction) of the purchase price, plus damages for any consequential loss that flowed naturally from the defect. The choice between rescission and abatement turns on whether the buyer can return the system in substantially the same state and whether the price reduction adequately compensates for the loss in value.

If the contract contains a voetstoots clause, do not assume it is a complete answer. The clause gives way the moment the seller knew or ought reasonably to have known of the defect and stayed silent — a finding that turns on emails, design reports, and commissioning records more than on the contract wording itself.

The Consumer Protection Act: The Stronger Route for Most Buyers

For most solar-system buyers, the CPA is the more powerful route because it imposes warranties that cannot be contracted out of in a consumer transaction. The Act applies to every transaction in South Africa between a supplier acting in the ordinary course of business and a consumer, with limited exceptions set out in section 5 (the juristic-person threshold and the small-business exemptions). Three sections do most of the work in a concealed-defect claim.

Section	What it does	Why it matters for a solar defect
Section 55 — implied warranty of quality	Every supplier warrants that goods are reasonably suitable for their general purpose, are of good workmanship, are free from defects, and will be usable and durable for a reasonable period.	Attaches automatically to every solar panel, inverter, and balance-of-system component supplied to a consumer.
Section 56 — six-month remedy window	Within six months after delivery, the consumer may require the supplier to repair or replace the defective goods, or to refund the purchase price.	Gives the buyer a defined, no-costs remedy route before any application to court or the Tribunal.
Section 61 — product liability	A producer, importer, distributor, or supplier is liable for harm caused by unsafe goods, including defects in the product itself.	Extends liability beyond the immediate seller to the upstream chain where the defect originates in the product.

Where the contract was concluded as a result of direct marketing — for example, a vendor who cold-called or sent a quote and visited the property without prior invitation — section 69 also gives the consumer a five-business-day cooling-off right. The section 55 and 56 framework, however, is the spine of the concealed-defect claim and does not depend on how the sale was concluded.

When the Vendor Can Still Escape Liability

Neither the CPA nor the common law makes the vendor a guarantor of every outcome. The claim fails, or is substantially weakened, in a defined set of circumstances that buyers should understand before issuing a demand letter.

1. The defect was reasonably discoverable on inspection before installation or use — the buyer is taken to have accepted it.
2. The buyer caused the defect through misuse, unauthorised modification, or failure to follow the vendor’s operating or maintenance instructions.
3. The transaction was jurist-to-jurist above the section 5(2) threshold and the parties are not “consumers” in the Act’s sense — the common-law framework still applies but the CPA does not.
4. The six-month section 56 window has lapsed — the common-law latent-defect claim may still be available, subject to prescription.

Each of these is a defence or threshold point the vendor will raise. The shape of the demand letter — and whether the claim should be lodged under the CPA or pursued in common law — depends on which of these defences is live in the file.

What Counts as a “Concealed Defect” in a Solar-System Context

Not every problem with a solar system is a “concealed defect” in the legal sense. The defect must be something a reasonable buyer could not have discovered on a careful inspection before purchase or installation, and it must be attributable to the vendor rather than to user behaviour.

• Defective inverter components, panel cell failures, or wiring faults not visible from the outside and not reasonably discoverable on a normal pre-installation inspection.
• Manufacturing faults in the panels themselves — micro-cracks, hot-spot degradation — that only become evident after the system has been running for a period.
• Misrepresented performance characteristics — claimed output that the system cannot deliver because of internal defects known or knowable to the vendor.
• Software or firmware defects in monitoring or control systems that the buyer could not have been expected to identify before purchase.
• Installation defects concealed behind roof cladding or in conduit runs — distinguishable from patent defects visible on a completed install.

Practical Steps for a Buyer Who Has Discovered a Concealed Solar Defect

The order in which a buyer acts materially affects the strength of the eventual claim. The sequence below is the routine that Baker Huyser Attorneys’ Commercial Law & Contracts and General Litigation teams follow when a new concealed-defect file is opened.

1. Stop using the system in any way that could aggravate the damage. Document the defect with photographs, datestamped video, and the inverter’s logged fault codes.
2. Get an independent technical assessment from a qualified solar PV installer or engineer who can attribute the fault to a manufacturing or installation defect — not user error.
3. Put the vendor on written notice within the section 56 window. Describe the defect, attach the technical report, and demand repair, replacement, or refund as the primary remedy.
4. Allow the vendor the statutory opportunity to repair or replace before escalating. Failure to give that opportunity can weaken a later claim.
5. Where the vendor refuses or fails to respond within a reasonable time, escalate via the supplier’s internal complaint process (the required first step in many supplier contracts), then to the National Consumer Commission or, for the common-law route, to court.

Each step is a foundation for the next. Skipping the technical report, or rushing to litigation without giving the vendor the opportunity to repair, often costs the buyer a claim that would otherwise have settled.

Burden of Proof and What to Document

The burden of proof differs between the two routes, and the documentation that satisfies one route does not always satisfy the other. Understanding the difference shapes the file from day one.

Route	Onus	What the consumer must prove
CPA — section 55 / 56	Shifts to the supplier once the consumer shows the goods had a defect	Defect existed; was not caused by consumer misuse. The supplier must then prove the defect was caused by the buyer’s misuse.
Common law — latent defect	Rests on the consumer	Defect existed at the time of delivery; was latent; vendor knew or ought reasonably to have known of it.

Documentation that materially strengthens either claim includes the original quotation and contract, the system design report, commissioning records, the inverter’s logged fault history, independent engineering reports, all correspondence with the vendor, and proof of any consequential loss (lost feed-in revenue, alternative power costs, business interruption). Consequential loss is often the largest component of the claim — it is also the component most easily lost if the file is not documented from the start.

Remedies and What a Court or Tribunal Will Award

The remedies available on a successful concealed-defect claim are broader than the section 56 trio of repair, replace, or refund. The full remedies map is as follows.

• Repair at the supplier’s cost, restoring the system to working order within a reasonable time.
• Replacement with an equivalent working system where repair is not possible or fails.
• Refund of the purchase price, in full where the defect is material and the consumer rescinds the contract.
• Consequential damages for additional losses caused by the defect — alternative power costs, lost feed-in tariff revenue, business interruption — available under common law and under the CPA’s section 55 read with section 56.
• Cancellation of the contract where the defect is a material failure of the implied warranty of quality.

The National Consumer Tribunal can award most of these remedies on a CPA-based complaint, while the Magistrate’s Court or High Court is the forum for the common-law latent-defect claim where consequential damages push the quantum above the Tribunal’s jurisdictional ceiling. The choice of forum is itself a strategic decision that depends on the size of the claim and the remedy sought.

Frequently Asked Questions

Does the Consumer Protection Act really override the voetstoots clause in a solar sale?

The CPA does not formally invalidate a voetstoots clause; it operates independently of contract terms by imposing implied warranties that cannot be excluded in a consumer transaction. Where the supplier has given the section 55 implied warranty of quality, the buyer can demand a remedy under section 56 within six months of delivery regardless of any voetstoots wording. Under common law, voetstoots continues to apply but yields where the seller knew or ought reasonably to have known of the latent defect and stayed silent.

What is the time limit for bringing a claim against a solar vendor for a concealed defect?

Under the CPA, the consumer must demand a remedy within six months of delivery (section 56). Under common law, a latent-defect claim arising from a sale of goods prescribes (becomes unenforceable) three years from the date the debt became due, in terms of the Prescription Act 68 of 1969 read with the standard sale-of-goods prescription rule — and the starting point can be the date of delivery, not the date the defect was discovered, so claims should be lodged well before the limit.

What is the difference between a latent defect and a patent defect in practice?

A latent defect is one a reasonable buyer could not have discovered on a careful inspection before purchase or installation — for example, a manufacturing fault inside the inverter or a micro-crack in a panel that only fails after running. A patent defect is one a reasonable buyer would have noticed on inspection — for example, a visibly cracked panel or a missing component. Patent defects are generally taken to have been accepted on purchase; latent defects are not.

Does it matter whether I bought the system outright or financed it through the vendor?

No — the CPA applies to both outright purchases and credit agreements where the supplier or a related party is the credit provider, and section 55’s implied warranty of quality attaches to the goods regardless of the payment route. The finance arrangement gives you an additional right of action against the credit provider for defective goods in some circumstances, but the supplier’s liability for the defect itself is the same.

Can I claim against the installer as well as the supplier?

Yes, where the installation itself contributed to the concealed defect — for example, concealed wiring faults or roof-integrity failures that were not reasonably discoverable at handover. The installer can be pursued under the CPA for the same implied warranties that attach to goods supplied, and under common law for negligent installation.

If you have discovered a concealed defect in a solar system and want to know whether the vendor can be held liable, Burger Huyser Attorneys’ Commercial Law & Contracts team can review the contract, the technical report on the defect, and your correspondence with the vendor, and advise whether to pursue a section 56 remedy, a common-law latent-defect claim, or both. Contact the Linden head office on 011 888 0246 (after-hours 061 516 6878) or visit 49 First Avenue, Linden, Randburg, 2194. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”), is a multi-specialist practice across Gauteng, and runs consumer-contract and latent-defect claims through its commercial and litigation benches. Initial consultations are booked directly with the head office for commercial-contract instructions of this kind.