SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE NORTH WEST CONSUMER AFFAIRS COURT
HELD AT KLERKSDORP

Case number: NW02/2019

MR. MOGOIWA ISAAK DISEKO							      PLAINTIFF

and

MR. PIETER SCHUTTE T/A AUTO SELECT					  DEFENDANT

Coram: J. Nkomo (Chairperson), K. Kgomongwe, G. Gaobepe and D.Khula

In summary: Allegations of contravention of Section 55 and 56 of the Consumer protection Act in that the defendant is alleged to have failed to supply goods in terms of section 55 and that the defendant failed to refund a purchase price of R 75 000.00. whether consumer was liable for damage caused to motor vehicle and whether he is liable for the costs of such repairs.

Result: Sections 55 and 56 considered and applied, defendant ordered to pay a refund of R 75 000.00 within 15 days of court order. Defendant liable for costs of enforcement in competent court.

JUDGEMENT

J. Nkomo (Chairperson)

Introduction

1.	The plaintiff is Mr. Mogoiwa Isaac Diseko, an adult male pensioner who at the time of testifying in these proceedings resided at […], Klerksdorp. He will from henceforth in this judgement be referred to as the consumer. The defendant is Mr. Pieter Schutte who trades as Auto Select at 68 Joe Slave Street, Freemanville in Klerksdorp. He will be referred to in this judgement as the supplier. The supplier is a dealer in second hand motor vehicles whose trade is amongst others governed by the Consumer Protection Act.

2.	Mr. Herman Roodt represented the supplier at the hearing of the matter in open court in Klerksdorp. The consumer was represented by Mr.Letsogo who is the Consumer Protector in this court. Both parties were at the conclusion of the hearing given the opportunity to each provide the court with its heads of arguments. These were duly provided and have been of assistance in the writing of this judgement. The court expresses its gratitude towards the parties in this regard.

Background facts

3.	The brief background facts in this matter can succinctly be put as follows. On 17 March 2018 the consumer saw an Opel Meriva motor vehicle at the shop floor of the supplier. Then and there the consumer decided to purchase the motor vehicle without being afforded the opportunity of test driving it. He had been told to pay the purchase price first before he could be allowed to drive the motor vehicle. The supplier then issued an invoice which forms part of the bundle of documents presented to court as evidence. It is not clear from the evidence as to how the purchase price of R 75 000.00 was paid. The payment of the purchase price is however not in dispute between the parties.

4.	On Sunday the 18th of March 2018 the consumer woke up with the intention of attending a church service at a venue which he did not disclose when he gave evidence. Nevertheless, whilst en route to the church and whilst near Ventersdorp Dam he observed the heat gauge of the motor vehicle signaling that it was overheating. He had stopped and allowed the gauge to lower and he had decided to return home to Klerksdorp whilst driving at a low speed.

5.	On Monday the 19th of March 2018 the consumer drove with the motor vehicle to the address of the supplier in Klerksdorp where he met with the supplier and explained his predicament to him. He (the supplier) took the motor vehicle for a turn and reported to the consumer that it was according to him fine. On insisting that the motor vehicle was not fine, the consumer was told to return the motor vehicle on Tuesday the 20th of March 2018 and it would be taken in for repairs.

6.	On Tuesday the 20th of March 2018 the consumer delivered the motor vehicle to the supplier as had been arranged. He left it thereat on the understanding that it would be taken to a repair shop. He collected it at a later stage during the same day. The supplier states in this regard that only the fan switch fuse had been faulty as he was advised and this was replaced. The motor vehicle overheated again as the consumer arrived at Jouberton. On Wednesday the 21st of March 2018 whilst driving along the Stilfontein Road in Klerksdorp, the motor vehicle died on him. He had then sought help for towage and had towed it to the premises of the supplier. He found an employee of the supplier and left the motor vehicle with him.

7.	He visited the supplier again on Thursday the 22nd day of March 2018. He this time complained to the supplier that he had been told that the motor vehicle had been repaired on the 20th of March 2018 but it seemed to have the problem recurring. It is during this encounter that the consumer suggested that the motor vehicle be exchanged for a Ford Bantam bakkie. His offer was rejected. The further suggestion of an exchange for a Nissan motor vehicle was also rejected. He was instead given a white Renault Scenic which he used for about two weeks and returned for it also had exhibited signs of overheating.

8.	The consumer kept on checking the supplier on how far the repairs were on the motor vehicle. At one stage the two went to Toney's garage whereupon he was told that the costs for repairing the motor vehicle amounted to R 15 000.00 that he needed to pay. He stated that he had refused to pay the said amount because he was not the one that had taken the motor vehicle there. He had then demanded that the supplier keep the motor vehicle and he be refunded the amount of R 75 000.00 as he had paid for the motor vehicle. The supplier had seemed not to have been pleased with the insistence and they had parted ways.

9.	The supplier had indicated to the consumer that he would refund him once he had resold the motor vehicle. He had at one stage returned the registration certificate in respect of the motor vehicle although he refused to sign over the transfer of title forms. He was to later be surprised to learn that the motor vehicle had been sold on without his involvement as the registered title holder.

10.	On losing patience with the supplier, the consumer eventually reported the dispute to the offices of the Consumer Protector.

The issues

11.	It appears that a pre-trial conference had been scheduled for 18th of March 2018 but was aborted due to the withdrawal of the then legal representative of the supplier at the last minute. There is nothing on record that is suggestive of the fact that another pre-trial conference was convened. Pre-trial conferences play an important role in the adjudication of disputes. They assist the parties to a dispute in crystalizing what is to be brought before a court for determination. They moreover, bring the parties closer to a settlement. The importance of this pre-trial procedure cannot be overemphasized.

12.	In the absence of a pre-trial minute all and everything seems to be placed in dispute. It then becomes the function of a trial court to try to make out as to what issues lie for determination. Anyways, the conclusion of the consumer agreement as well as the eventual return of the motor vehicle to the supplier by the consumer seem to be common cause. It would seem that we are to determine firstly if the heat damage occasioned to the engine was out of the actions of the consumer. We are to also determine if the consumer is liable for the repair costs as would have been paid by the supplier at Taney's garage. Lastly, we are to determine as to whether the consumer was entitled to return the motor vehicle, claim cancellation of the consumer agreement as well as to demand a full refund.

Discussion

13.	The consumer testified that he acquired a driving license since 1991 and was employed at a garage where he used to drive motor vehicles in the course and scope of his employment. He had in his private life once owned a Nissan Skyline motor vehicle for a period of six years. He stated that he was capable of reading gauges on a motor vehicle. This part of the evidence was not controverted by the supplier. The consumer stated that he observed that the heat gauge was indicating that the engine was overheating for the first time on the 18th of March 2018. This was the day following the delivery of the motor vehicle. The proximity of the date of delivery and the onset of the overheating issues on the motor vehicle can only bring a conclusion to the effect that the consumer unknowingly took delivery of the motor vehicle whilst it had an underlying cause for overheating.

14.	It was argued on behalf of the supplier that they could also not be expected to have known that the motor vehicle had an underlying cause for overheating. As much as this could be true, this did not exonerate the supplier from the duty to supply goods that meet the requirements as set in section 55 of the CPA. The section reads as follows:

"55. Consumer's rights to safe, good quality goods.–(1) This section does not apply to goods bought at an auction, as contemplated in section 45.
(2)	Except to the extent contemplated in subsection (6), every consumer has a right to receive goods that-
(a)	are reasonably suitable for the purposes for which they are generally intended;
(b)	are of good quality, in good working order and free of any defects;
(c)	will be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply; and..."

15.	Motor vehicles in their ordinary nature are not meant to overheat unless there is an underlying cause. In casu the motor vehicle showed signs of overheating a day after its delivery to the consumer. This would have been in breach of section 55(2)(c) which places an obligation on the supplier to supply goods that will be usable and durable for a reasonable time after their purchase. It should be found that the motor vehicle did not meet this specific test.

16.	Mr. Schutte testified that the cause for the heat damage to the motor vehicle was because a water hose had been burst and that this was the fault of the consumer. I have a problem in accepting this statement firstly as Mr. Schutte is not an expert, secondly that the information he provides is what he himself was told and therefore constitutes hearsay. It is trite that hearsay evidence is not admissible. Lastly no document or report was tendered to court as evidence of the supplier's interactions with Taney's garage. Mr. Schutte further stated that he had eventually agreed to refund the consumer. He furthermore offered a motor vehicle of a price of R 60 000.00 with a warranty that the consumer would have to pay between R 3 000.00 and R 18 000.00 to acquire. He offered 50% of the cost of the warranty. When the plaintiff attended at the supplier's premises on 05 April 2019 he was informed that the motor vehicle (forming the subject matter of the dispute) had been sold. So was the motor vehicle that he (the supplier) had offered to deliver to the consumer as a compromise. The settlement thus fell away.

17.	Apart from the obligation placed upon the supplier to supply safe and durable goods that would last for a reasonable time after their purchase, the supplier had in terms of section 56 of the CPA a further obligation of an implied warranty on the goods supplied. The section reads as follows:-

"56. Implied warranty of quality.–(1) In any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated in section 55, except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be.

(2)	Within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier's risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55, and the supplier must, at the direction of the consumer, either–
(a)	repair or replace the failed, unsafe or defective goods; or
(b)	refund to the consumer the price paid by the consumer, for the goods.

(3)	If a supplier repairs any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must–
(a)	replace the goods; or
(b)	refund	to the consumer	the price	paid by the consumer for the goods..."

18.	The motor vehicle was returned for attention thereto on the 20th of March 2018. The consumer was assured that the problem of overheating had been attended to. Unfortunately the following day, the 21st of March 2018 the problem resurfaced again. The rectification of the problem would have been in terms of section 56 (2) (a) of the CPA. It would appear that once the problem complained of resurfaced within three months after repairs were last done in terms of Section 56(2)(a) the consumer has the election to invoke the provisions of Section 56(3)(a) or section 56(2)(b). The consumer stated that he advised the supplier that he would prefer to be refunded if he were to be forced to pay the amount of R 15 000.00 as was said to be owed to Taney's garage. The supplier then stated that he would have to resell the motor vehicle first and thereafter refund the consumer subject to deducting the costs of the repairs to the motor vehicle.

19.	Nothing in section 56 entitled the supplier to deduct any monies from the amount of the purchase price. The consumer if he elects so, must be refunded his full purchase price. I therefore cannot find any justification within Section 56 for the intentions of the supplier in withholding a certain portion of the purchase price.

20.	It was argued on behalf of the supplier that the consumer is to be compelled by the court to accept a replacement motor vehicle instead of the court ordering a refund. To order as proposed will erode the consumer's statutory right of electing to cancel the consumer agreement without penalty as discussed earlier in this judgement.

21.	It is for the above reasons that I conclude as follows:-

Order

1.	The consumer agreement entered into between the parties on 17 March 2018 is hereby terminated with effect from 22 March 2018.

2.	The supplier, Mr. Pieter Schutte is ordered to pay the amount of R 75 000.00 to the consumer, Mr. Diseko within 15 days of the granting of this order.

3.	The supplier shall be liable to the consumer for the costs of enforcing this judgement in the competent court.

Dated at Mmabatho on this the 27th day of August 2020.

John Nkomo 
Chairperson

Members K.Kgomongwe, G. Gaobepe and D.Khula concur

For the consumer:	Mr.E.S Letsogo
Office of The Consumer Protector
Department of Economic Development, Conservation and Tourism
North West Provincial Government 
NWDC Building, Mmabatho
Tel: 018 387 7872
EMAIL: Eletsogo@nwpg.gov.za

For the supplier: 	Mr. H.W Roodt
Paralegal & Alternative dispute resolution Practitioner
Enkeldoring Avenue 
klerksdorp