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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 CONSUMER AFFAIRS COURT FOR THE NORTH WEST PROVINCE HELD AT KLERKSDORP

Case number: NW21/2018

In the matter between:-

THABISO PHIKA                                                                                        PLAINTIFF

And

JANSE VAN RESNBURG T/A S.J MOTORS                                         DEFENDANT

 

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

Delivered on: 24 August 2020

Summary: Consumer Protection Act 68 of 2008 on the obligation by supplier to repair defects on a motor vehicle within 6 months of the date of purchase of motor vehicle. Supplier refusing to have repairs effected within 2 months of purchase of motor vehicle despite admitting to the existence of defects.

Result: Consumer agreement cancelled at the election of the plaintiff and the defendant ordered to reimburse R 65 000.00 to plaintiff within 15 days and to collect motor vehicle at own costs. No costs order except for the costs that may be incurred in the process of enforcing this judgement in the competent court.

JUDGEMENT

J.Nkomo (Chairperson)

Introduction

1.   The plaintiff in this matter is Mr. Thabiso Phika. He is an adult male person who resides at […] Jouberton Township in Klerksdorp. The defendant is Mr. Janse Van Rensburg who trades as SJ. Motors at 30 Flecker Street in Orkney, Klerksdorp. In the parlance of the Consumer Protection Act[1] the plaintiff is a consumer whereas the defendant is a supplier. For the sake of simplicity and easy of reference and understanding, I choose to refer to the parties as the CPA denotes.

Background facts

2.   Whilst shopping for a motor vehicle, the consumer visited amongst others the supplier's shop floor where he saw a 2012 model Peugeot Dynamic 1.6 5 doors motor vehicle with registration number […]. This was on 18 November 2017 at about 09H00. The consumer decided to purchase the motor vehicle at a cost of R 65 000.00. The purchase price was paid in bits and pieces until after about a week when there was a balance of R 1 000.00 that the consumer paid when he went to take delivery of the motor vehicle. Given the fact that the consumer paid the balance of R 1 000 a week later, it can safely be said the contract was perfected by the plaintiff on 25 November 2017. There is no dispute about the terms of the contract of sale itself and one need not dwell too much into these. Suffice to say that the salesperson who dealt with the consumer was Francois. It turned out later that this is Mr. Phillipus Janse Van Rensburg who also testified.

3.   According to the recollection of the consumer, the odometer reading on the motor vehicle was about 129 000 kms. Francois took the consumer and his father in the motor vehicle for test drive. The consumer himself also drove the motor vehicle on the return trip. No warning lights were illuminated on the instrument cluster of the motor vehicle when the consumer drove it. On collection of the motor vehicle, he was given its registration papers. He then took the motor vehicle through the process of road worthy test and registration.

4.   On the day that the consumer took delivery of the motor vehicle, he heard its fan running even after parking it at his home. It continued to run for two hours. At the same time the engine warning light lit up on the instrument cluster. He then contacted Francois and reported the issues to him. Francois advised that he bring the motor vehicle in on Monday. He did not do so as he used the motor vehicle to travel to his work with it to Vaderbjilpark. On Monday he rescheduled the appointment to the Friday. He still could not manage as he left work late. On the Monday his father took the motor vehicle to Francois. After some reluctance, they finally took the motor vehicle in. At a later stage on the same day, his father collected the motor vehicle. This time the engine warning light had gone off and the fan was no longer running continually. On the same day the problems had returned again.

5.   In February 2018 he reported to Francois that he was cancelling the consumer agreement. The response was that he had bought the motor vehicle as is. His decision in this regard was based on knowledge that he had the right to cancel the consumer agreement if it was within 6 months of purchasing the motor vehicle. Eventually the motor vehicle was taken to Peugeot in around April 2019 and has been there since. In his recollection the motor vehicle was returned about 5 to 6 times back to the supplier with the same problems and with the problems recurring after each return. The consumer stated that he wished to be refunded his monies.

6.   Mr. Deon Benjamin testified that he had 9 years of experience as a motor technician on amongst others Peugeot motor vehicles. He stated that he inspected the motor vehicle on 25 April 2019 and diagnosed amongst others the following problems:-

6.1.   misfiring caused by faulty ignition coils;

6.2.   spark plugs had carbon built up;

6.3.   a faulty temperature sending unit;

6.4.   a faulty water pump which was leaking water;

6.5.   a worn out drive belt resulting in a noise;

6.6.   a fault in the charging alternator that resulted in the battery not being fully charged;

6.7.   the motor vehicle had a battery with a 50 or 53 amp hour rating instead of a 70 hour amp rating;

6.8.   a faulty brake light switch.

7.   He advised the consumer to have the faulty parts replaced. The total cost estimate was in the amount of R 30 339.10. According to this witness, this model gets serviced after 15 000.00 kilometers.

8.   Mr. Johannes De Waal testified that he is a qualified motor mechanic having qualified in 1993. He has 26 years of experience. He had the opportunity to inspect the motor vehicle at his work place at Car Care Centre in klerksdorp. He once worked on the motor vehicle by way of switching the engine warning light off and advised the client to return the motor vehicle back should the warning light re-appear. He insists that the motor vehicle would not have managed to cover 7000 kilometers with the faults described by Mr. Benjamin. The motor vehicle was returned to him again and he switched the engine warning light off. It was brought to him again for a third time whereupon he changed a sensor and the engine warning light was Gleared. He denied that the motor vehicle was misfiring and was never aware that it was overheating.

9.   Mr. Janse van Rensburg testified that he has been selling motor vehicles for over 15 years. He stated that the plaintiff knew that he was buying second hand vehicle and it was in a good working condition when it was delivered to the consumer. He stated that the motor vehicle was sold by Francois on 18 November 2017. on 20 November 2017 he received a text message from Francois reporting about the challenges the consumer reported about the motor vehicle. On 21 November 2017 Francois reported that the consumer had called and that he arranged to deliver the motor vehicle on 27 November 2017. He did not deal directly with the consumer as Francois was the one dealing with the situation. According to his knowledge the motor vehicle was eventually taken to Car Care Center for attention thereto. He confirms that on the first visit the engine warning light was simply put off. He received a report two days later from Francois who stated that the engine warning light was on again. He complains that the consumer made appointments to return the motor vehicle but never pitched up. He denied that the consumer cancelled the contract. He confirms that the motor vehicle was returned to them on 3 separate occassions with the same problem. According to him the problems presented were loss of power and the engine warning light.

10.   Mr. Phillipus Francois Janse Van Rensnburg stated that he is an employee of the supplier since 2015 and in the position of salesperson. He stated that the consumer reported to him that the motor vehicle had no power as he was driving it to his workplace in Vanderbijlpark. He then reported to the manager. On 21 November 2017 he spoke to the consumer about arranging to bring the motor vehicle on 27 November 2017. The consumer did not deliver the motor vehicle as arranged and later sent an SMS apologizing and promising to deliver same on 01 December 2017. Still the consumer did not honour this appointment. On 11 December 2017 a family member of the consumer delivered the motor vehicle to the premises of the supplier. It was then taken to Car Care for attention thereto. On 13 December 2017 the consumer returned the motor vehicle. On 01 January 2018 the consumer called him to complain that the motor vehicle was still giving him problems. It was then arranged that the consumer deliver the motor vehicle on 08 January 2018. Mr. Van Rensbsurg states that the consumer failed to deliver the motor vehicle. A further appointment was set for 22 January 2018. The consumer still did not manage to deliver the motor vehicle. Eventually on 02 February 2018 the consumer arrived at the suppliers' premises to deliver the motor vehicle. Mr. Van Resnburg told him that they were no longer willing to assist him due to his failure to honour the appointments of the past. It seems according to this witness that the consumer was not happy about the situation and promised to take legal action.

11.   This witness stated to the court that he had only heard about the Consumer Protection Act and did not have knowledge on how it applies. This was concerning to the court given the fact that he functions in an industry that is directly regulated by the CPA as it will be seen later in this judgement. How was he to know whether he is advising clients correctly and whether he is functioning within the parameters of the law?

The legal issues

12.   It seems that we only need to decide on whether or not the motor vehicle had defects or not. If it did have defects, we must move to the next enquiry and that is whether the supplier was /is obliged to repair such defects.

Did the motor vehicle have defects?

13.   It is clear from the evidence of the expert witness that were called by either party that indeed the motor vehicle had defects. This confirms the consumer's assertion that the motor vehicle had defects. The existence of the defects were also admitted during the pre-trial conference that was held on 28 November 2018. We therefore find that the motor vehicle had defects.

Was the supplier obliged to repair the defects?

14.   From the pre-trial minute that is on record, it is clear that the supplier acknowledged the existence of defects but takes cover from the fact that the consumer had missed a few of the appointments that had been arranged for him to return the motor vehicle. It seems that on the occasions that the consumer returned the motor vehicle, it was for exactly the same thing. The engine management warning light was coming on. It would go off but return shortly after he receives the motor vehicle back from the supplier.

The legal position

15.   The CPA amongst others aims to protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace[2].

16.   The CPA[3] provides as follows:-

" (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 usable and durable for a reasonable period of time having regard to the use which they would normally be put and all the surrounding circumstances of their supply; and..."

17.   Having said the above the question that remains is what should have happened under the circumstances. In this regard reliance is placed on section 56 which provides as follows:-

"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 requirements and standards contemplated in section 55, and the supplier must, at the direction of the consumer either[4]-

(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.

Application of the law to the facts.

18.   The motor vehicle in question was purchased on 25 November 2017. It therefore follows that the consumer had the right to return in for defects until up to at least May 2018. He was however rejected as early as 02 February 2018 as Mr. Van Rensburg stated. We find that the fact that the consumer did miss a few appointments that were set for returning the motor vehicle did not exonerate the supplier from the obligations of a six-month warranty as provided for in Section 56(2) of the CPA.

19.   For all of the above reasons the court comes to the following conclusions:-

1.      The consumer agreement entered into between the consumer and the supplier is ordered cancelled.

2.      The supplier is ordered to reimburse the consumer the amount of R 65 000.00 within 15 business days of the date of this judgement.

3.      The supplier is to at its own expenses and against payment as paragraph 2 above take possession of the motor vehicle from consumer.

4.      Each party shall pay its own costs except that the supplier shall be liable to consumer for the costs that may be incurred by the consumer in the process of enforcing this judgment.

 

Dated at Mmabatho on the 24^th day of August 2020.

 

John Nkomo

Chairperson

 

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