Written by Herman Bonnet & Juanice Jooste
04 December 2023

Considering the various service providers and the objectives and reasons for the installation of private solar systems for residential use, the purchaser has the option to decide with whom and on what grounds to contract for the installation.

The purchaser may opt to either:

  • be the owner of the solar system outright and buy the system in cash,
  • have it financed by a financial institution, or
  • rent the system and leave the ownership to the solar company.

Whether the purchaser chooses to contract with their friendly neighbourhood self-made solar expert or a reputable solar company (“the vendor”), there are various contracting terms that protect you as the purchaser from latent defects.

The purpose of this article is to assist the purchaser in navigating and understanding the rights and responsibilities of purchasing a residential solar system.

What Is An Implied Warranty Against Latent Defects?

An implied warranty against latent defects binds vendors to guarantee the purchaser that the subject sold is free from faults and defects that would render it useless or partially useless for the purpose for which it was sold.

An implied warranty against latent defects arises from the nature of the contract. The principle of South African contract law is that anyone selling an article is bound to supply a good article without defect unless there are circumstances to show that an inferior article was agreed upon.

The implied warranty against latent defects was confirmed by the High Court of Cape Town in the matter of Beyers NO & another v Ackerman[1] that even if the agreement has a “voetstoots” clause, it does not exclude liability for latent defects when the vendor was aware of the defect at the time of the conclusion of the contract and deliberately concealed the existence of the defect from the purchaser or refrained from informing the purchaser of its existence. In such an instance, the vendor can be held responsible for the damages caused by the latent defects.

Is There A Guarantee Against Concealed Defects?

In addition to the warranty for latent defects on the product supplied by the vendor, it is implied that the product will also be free from redhibitory vices. The term redhibitory vices is used to cover those defects in the product sold that either destroy or impair its usefulness concerning the purpose for which the product is intended.

What Are Redhibitory Vices?

Redhibitory vices are faults or defects that will either destroy or impair the usefulness of the thing sold for the intended purpose for which it is ordinarily intended to be used. The defect, therefore, cannot be trivial. The test used to measure whether the product’s usefulness has been impaired is an objective test in the sense that it must attach to the product and not depend on the purchaser’s whim.

What Is Action For Redhibition?

Redhibition strictly amounts to the dissolution of the sale because of some fault or defect in the thing sold, which is of such a nature that it is sufficient to oblige the vendor to take back the product and annul the sale.

What Does The Remedy Of Redhibition Provide For?

The remedy for redhibition starts with the delivery of a combined summons to the vendor requesting that the transaction be rescinded and the parties be placed in the same position as before the conclusion of the transaction.

With the installation of a solar system, it will necessitate that the vendor remove the installation from the residential property and reimburse the purchaser with the payments already made, albeit a deposit or instalment payment.

The onus is on the purchaser to provide that a reasonable person would not have bought the product, i.e., if the purchaser knew about the defect at the time of the sale.

What If There is a Defect in One Item Bought Together with Several Other Items?

When purchasing a solar system, it could consist of several appliances sold together, and should one of these items, for example, the inverter, have a fault, will the purchaser be allowed to have the entire transaction reversed or only the affected item?

It depends on the nature of the transaction and the consideration of the principal object of the agreement. There are two distinct procedures for how such an agreement can be approached:

  • If there is only one principal object of the sale and the other appliances are only accessories, the defect in this principal object would carry with it the recission of the sale of all the accessories. For example, if the solar panels were sold together with the solar inverter and the solar batteries and it was found that the solar panels had a redhibitory vice, the redhibition of the solar inverter would include that of the solar panels and batteries.
  • On the contrary, if only an accessory to the principal defect were defective, redhibition of the accessory would not include redhibition of the principal object. For example, if it were found that one of the batteries for the solar system had a defect, it would not render the redhibition of the entire solar system, but only the redhibition of the affected solar battery.

Where the appliances sold do not consist of a principal thing and accessories, a distinction must be made. If all things sold are of equal importance, then the test will be applied as follows:

  • Do the products sold comprise such a unity that one would not have been bought without the other or such that one could not be separated from the rest without injury to the symmetry and usefulness as a whole?

If this is the case, the purchaser can obtain redhibition of the entirety of the purchase. It is, however, doubtful that a solar system will fall within this category, as systems can be sold with or without solar panels or batteries.

What If The Solar System Has Caused Damage To My Household Appliances?

The causation between the solar system and the damage caused by it to your household appliances should be established and proved without any dispute of fact.

Further consideration has to be given to whether such damages amount to an insurance claim rather than a damage claim from the solar vendor. This is because you cannot receive compensation from the insurance claim and a damages claim for the same event.

It may be possible to introduce a damages claim against the solar vendor for some form of damages caused; however, this will depend on the set of facts and the extent of the damages caused.

It is therefore important to consult with one of Burger Huyser Attorneys’s contract specialists to navigate the obstacles of such a solar installation agreement.

[1] [2007] 3 All SA 125 (C)

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE