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IN THE CONSUMER AFFAIRS COURT FOR THE PROVINCE OF GAUTENG

HELD AT JOHANNESBURG

                                                                                                            CASE NO: GCC 05/2020

 

In the matter between:                                                                   

 

KGOMOTSO MOJOPELO                                                                         Plaintiff

 

and

 

ORTHOPEDIC PILLOW AND MATTRESS                                           Defendant

 

JUDGMENT

 

1. This is an action in terms of which the Plaintiff seeks the replacement of goods in terms of a guarantee, as set out in the Particulars of Claim to the Summons.

2. At the hearing of this matter on 16 October 2020, the Plaintiff was represented by the Consumer Protector. The Defendant was represented by attorney Maarten Strydom of Strydom M and Associates.

 

The facts

3. The common cause facts not in dispute are:

3.1 On 11 April 2015 the Plaintiff and Defendant entered into an agreement of sale whereby the Plaintiff bought one Grand Super King Mattress and Base (medium, grey) from the Defendant for an amount of R25 000,00.

3.2 The Plaintiff paid the purchase amount to the Defendant and the Defendant delivered the goods purchased to the Plaintiff.

3.3 The goods purchased carried a 10-year guarantee.

4. The Plaintiff noticed a foul odour emanating from the mattress and on inspection noticed mould on the flipside of the mattress. The Plaintiff reported the problem to the Defendant on 24 May 2020, requesting a replacement of the mattress in terms of the guarantee.

5. The Defendant refused a replacement, informing the Plaintiff that the mould on the mattress was caused by liquid damage, which is not covered by the guarantee.

6. The Plaintiff approached the Gauteng Consumer Affairs office (‘the office’) for assistance. The Defendant remained unresponsive to attempts by the office during July, August and September 2020. Summons was issued on 28 September 2020, citing sections 55 and 56 of the Consumer Protection Act, No 68 of 2008. These sections, as applicable in this matter read:

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

(d) comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993), or any other public regulation.

(3) In addition to the right set out in subsection (2)(a), if a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier—

(a) ordinarily offers to supply such goods; or

(b) acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

(4) In determining whether any particular goods satisfied the requirements of subsection (2) or (3), all of the circumstances of the supply of those goods must be considered, including but not limited to—

(a) the manner in which, and the purposes for which, the goods were marketed, packaged and displayed, the use of any trade description or mark, any instructions for, or warnings with respect to the use of the goods;

(b) the range of things that might reasonably be anticipated to be done with or in relation to the goods; and

(c) the time when the goods were produced and supplied.

(5) For greater certainty in applying subsection (4)—

(a) it is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods; and

(b) a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.

(6) …

 

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)        …

(3)        …

(4) The implied warranty imposed by subsection (1), and the right to return goods set out in subsection (2), are each in addition to—

(a) any other implied warranty or condition imposed by the common law, this Act or any other public regulation; and

(b) any express warranty or condition stipulated by the producer or importer, distributor or retailer, as the case may be.

 

During the trial on 16 October 2020, the following evidence was presented:

 

7. The Plaintiff testified that –

 

7.1 when he bought the bed and mattress at the Rand show in Nasrec on 11 April 2015, salesperson confirmed that the purchase carried a 10-year guarantee, which was also written on the invoice dated 11 April 2015;

 

7.2 as he and his family were in the process of moving at the time, the bed and mattress was delivered to the new house and that upon delivery he only inspected the outer part of the mattress and the base of the bed;

 

7.3 neither he nor his wife eat or drink in bed and their minor child never sleeps in their bed;

 

7.4 his wife noticed an odour coming from the bed. They moved the base to see what is under mattress, after unzipping the brown cover. They noticed mould and moved the bed to the wall to lean on its side and opened the sliding doors to allow the mattress to dry;

 

7.5 when he and his wife bought the bed it was never explained to them what was covered under the guarantee and what was not covered;

 

7.6 he phoned the supplier (the Defendant), who asked him to send photos of the mattress. He also paid a collection fee of R399,00 whereafter the Defendant collected the mattress;

 

7.7 the Defendant sent him a WhatsApp, which indicated that the damage causing the mould was due to urine, which was not covered by the guarantee;

 

7.8 he only looked at the website for the terms of the guarantee after the above feedback from the Defendant;

 

7.9 after the Defendant’s above response, he lodged a complaint with the office.

 

8. The Consumer Protector directed the Plaintiff’s attention to the photos presented during the trial. The Plaintiff testified that the mattress was covered in a white seal with a brown cover zipped over it. The yellow part represented to top layer and the pink part rests on the base. The white part covered the whole bed and was stitched on. Plaintiff testified that he took off the brown part when he inspected the mattress.

 

9. Mr Strydom, attorney for the Defendant, proceeded to cross-examine the Plaintiff.

 

9.1 Mr Strydom questioned the Plaintiff on representations made with regards to guarantee on the date of sale, communicating his understanding that mould on a mattress is due to fluids which is not covered under the guarantee. Upon Mr Strydom’s question as to whether the contents of the guarantee was explicitly explained on date of purchase, the Plaintiff answered in the negative.

 

9.2 Mr Strydom asked the Plaintiff whether he inspected the mattress on day of purchase. Plaintiff responded in the negative and explained that he inspected it upon delivery over the ensuing weekend.

 

9.3 To the questions posed by Mr Strydom relating to use of the bed and mattress in excess of four years, the Plaintiff confirmed that there were no prior problems and that the mattress was in good order, but for the odour.

 

9.4 Questions on the photos followed. Plaintiff responded the he only took the photo, marked number three, revealing the mattress placed on its side against the wall to dry, and that the other photos were taken by the office.

 

9.5 Plaintiff responded, on Mr Strydom’s question whether he thinks that the moisture caused the mould, that he testified earlier that it was impossible that liquids were spilled on the mattress.

 

9.6 Mr Strydom indicated to the Plaintiff that the guarantee only covers defects in the product and that the current scenario does not indicate a defect in the mattress, but rather damages to it. The Plaintiff responded that he did not cause the damages and that the moisture was created over time. Mr Strydom indicated that the moisture must develop from a source, asking the Plaintiff whether he means the moisture originated from a defect or a poor quality product delivered by the Defendant. The Plaintiff responded in the affirmative, indicating that the problem is with the design of the mattress. Mr Strydom remarked that what happened to the mattress could not be reasonably expected and that the guarantee will not provide cover to that extent. The Plaintiff again indicated that it is impossible that he caused the moisture damage to the mattress.

 

9.7 To Mr Strydom’s question of whether the mattress was placed on its side from time to time, the Plaintiff responded that it was necessary when they vacuumed the carpet. He always helps his wife, as there is one large mattress and two bed bases. The Plaintiff further indicated that his wife alerted him to the smell, that he personally did not initially smell it, but that his wife complained about it over time.

 

10. Mr Samuels, member of the Gauteng Consumer Affairs Court, asked the Plaintiff questions for purposes of clarification.

 

10.1 To Mr Samuels’ question on when he discovered the smell for the first time after he bought the mattress in 2015, the Plaintiff responded that he needs to confer with his wife on when they unzipped the brown portion of the mattress, but that he discovered the smell during June 2020.

 

11. A number of the points of the Plaintiff’s testimony relied on hearsay. The matter was postponed to 26 October 2020 in order to allow the Plaintiff’s wife to give her testimony.

 

The hearing resumed on 26 October 2020.

The Defendant’s attorney, Mr Strydom withdrew his representation. Defendant now represented by the owner and manager of the Defendant, Mr Ryan Robert McLeod.

 

12. The Consumer Protector proceeded to lead the testimony and called the Plaintiff’s wife, Mrs Tebogo Salamina Mojopelo. Mrs Mojopelo testified that they bought the bed in 2015 due to her back problem, as the bed is bigger and will last longer. The mattress started to smell bad during 2019 and the rotten smell worsened around August 2019. She asked her house cleaner to help her shift the mattress. When she unzipped the brown cover, she saw a big mark, looking rotten and mouldy. She then realized that was where the smell came from. They lifted the mattress against the wall and opened the sliding doors. When questioned whether her house cleaner cleans the bed alone, Mrs Mojopelo confirmed that they needed the Plaintiff’s assistance in moving the bed. The Defendant had no questions for Mrs Mojopelo.

 

13. The Defendant, Mr McLeod, proceeded with his testimony. He indicated that –

 

13.1 these beds are 11 years in production and that he understand beds of all kinds;

 

13.2 no manufacturer will give a guarantee against liquid damage;

 

13.3 if there was something wrong with the manufacture, one will notice it within 10 days;

 

13.4 the damage was caused by negligence on the part of the Plaintiff;

 

13.5 nothing can be done where there is liquid damage;

 

13.6 there is no factory fault, therefore no defect.

 

13.7 The Defendant proceeded to explained the different layers of the mattress and testified that –

 

13.8 he cannot identify the liquid with certainty and it will not be worth the cost sending the mattress for testing;

 

13.9 the mattress did not sag, for example, which would be covered by the guarantee. He confirmed that the guarantee does not cover liquid damage;

 

13.10 the details of the guarantee are on the Defendant’s website.

 

14. The Consumer Protector proceeded to cross-examine the Defendant.

 

14.1 Upon questioning, the Defendant confirmed that he manufactured the mattress. He explained that all mattresses are manufactured in the same way, but that they differ in density. Higher density mattresses are of higher quality, confirming that the one in this case is of the best quality.

 

14.2 The Defendant testified that there is a label on the mattress, indicating the conditions of use pertaining to the guarantee. He confirmed that it was communicated to the Plaintiff on the date of sale.

 

14.3 The Consumer Protector proceeded to question the Defendant on the creation of mould in a mattress. The Defendant testified that mould is created only when there is liquid damage.

 

15. The Defendant spontaneously offered the Plaintiff a new mattress at cost price in the spirit of goodwill. The matter stood down for the parties to negotiate a settlement. The negotiations failed and the matter resumed for closing remarks.

 

16. The Consumer Protector addressed the members of the Tribunal on a consumer’s rights to safe and good quality goods, referring to section 55 of the CPA. The Consumer Protector referred to the guarantee that accompanied the sale, confirming that the existence of the guarantee was also specifically written on the invoice. She confirmed that the Plaintiff relied thereon as part of the terms of sale. However, no exclusions were drawn to the attention of the Plaintiff, whereafter she proceeded to discuss section 49 of the CPA, which reads:

 

49. Notice required for certain terms and conditions

 

(1) Any notice to consumers or provision of a consumer agreement that purports to—

 

(a) limit in any way the risk or liability of the supplier or any other person;

 

(b) constitute an assumption of risk or liability by the consumer;

 

(c) impose an obligation on the consumer to indemnify the supplier or any other person for any cause; or (d) be an acknowledgement of any fact by the consumer, must be drawn to the attention of the consumer in a manner and form that satisfies the formal requirements of subsections (3) to (5).

 

(2) In addition to subsection (1), if a provision or notice concerns any activity or facility that is subject to any risk—

 

(a) of an unusual character or nature;

 

(b) the presence of which the consumer could not reasonably be expected to be aware or notice, or which an ordinarily alert consumer could not reasonably be expected to notice or contemplate in the circumstances; or

 

(c) that could result in serious injury or death, the supplier must specifically draw the fact, nature and potential effect of that risk to the attention of the consumer in a manner and form that satisfies the requirements of subsections (3) to (5), and the consumer must have assented to that provision or notice by signing or initialling the provision or otherwise acting in a manner consistent with acknowledgement of the notice, awareness of the risk and acceptance of the provision.

 

(3) A provision, condition or notice contemplated in subsection (1) or (2) must be written in plain language, as described in section 22.

 

(4) The fact, nature and effect of the provision or notice contemplated in subsection (1) must be drawn to the attention of the consumer—

 

 

(a) in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances; and

 

(b) before the earlier of the time at which the consumer—

 

(I) enters into the transaction or agreement, begins to engage in the activity, or enters or gains access to the facility; or

 

(ii) is required or expected to offer consideration for the transaction or agreement.

 

(5) The consumer must be given an adequate opportunity in the circumstances to receive and comprehend the provision or notice as contemplated in subsection (1).

 

16.1 The Consumer Protector, on behalf of the Plaintiff, requested the members of the Tribunal to make an order of replacement of the mattress at the cost of the supplier.

 

17. The Defendant addressed the members of the Tribunal on section 49, indicating that there was a warning label on the mattress regarding liquids. At the time of the sale at the Rand show in Nasrec on 11 April 2015, the Plaintiff signed the guarantee. The ring marks on the mattress indicates liquid, which came from the top to the bottom of the mattress, creating mould at the bottom of the mattress. If it were due to a factory fault, the problem would have surfaced much earlier.

 

18. The members of the Tribunal assessed the legal process that were issued and served, together with the oral evidence that were presented in this matter. We find that the Defendant complied with the terms of sections 55(2) and 55(3) of the CPA. The testimony presented confirmed that there was not a defect in manufacture of the mattress. The evidence furthermore shows that there was a discussion relating to the guarantee during the time of the sale, to the extent that the Plaintiff not only signed the guarantee, but also insisted that it be noted on the invoice. Testimony presented also indicated that there was a warning label on the mattress relating to liquids. We are therefore satisfied that the Defendant complied with section 49 of the CPA. We are satisfied that damage to the mattress was due to external factors, which cannot be attributed to the Defendant. The plaintiff’s claim is dismissed.

 

ORDERED as such at JOHANNESBURG on 26 October 2020.

 

Prof. M A du Plessis

CHAIRPERSON

 

MEMBERS P Samuels and P Opperman concurred

 

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