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PROCEEDINGS BEFORE THE CONSUMER AFFAIRS COURT FOR THE

NORTH WEST PROVINCE, HELD AT KLERKSDORP

 

CASE NO: NW001/2023

 

 

In the matter between: -

 

Ms PUSELETSO RAMPEU                                            PLAINTIFF

 

And

 

AGENBAG MOTOR GROUP                                          DEFENDANT

 

 

JUDGEMENT

 

 

CORAM: KJP KGOMONGWE (TJ Rakoloka and ML Kortjas Concurring)

 

For Plaintiff -        Consumer Protector - Mr SE. Letsogo

 

For Defendant -    Mr D. Van Rooyen

 

 

THE PARTIES

 

1.      The plaintiffs in this matter is PUSELETSO RAMPEU an adult female person residing at Orkney within the province of North West hereinafter referred to as the plaintiff at the hearing represented by the consumer protector Mr. S.E LETSOGO.

 

2.      The defendant in this matter is Agenbag Motors Pty limited conducting. its business at KLERSKDORP represented in this proceedings by their legal representative Mr. D van Royen from the firm Lizel Swanepoel Inc.

 

3.      JURISDICTION

 

It is common cause that this matter falls within the jurisdiction of the Consumer Protection Act of the North West Provincial Court and both parties confirmed and consented to the jurisdiction.

 

4.      DISPUTE TO BE DECIDED UPON

 

4.1   Whether there's a valid cancellation of the agreement between the parties.

 

4.2   Weather the consumer or the plaintiff has the right to terminate the agreement after having reported defective delivery on the motor vehicle purchased.

 

5.      BACKROUND

 

5.1   The plaintiff purchased a Hyundai H1 motor vehicle from the defendant and both parties signed a written agreement which had several terms and conditions amongst them.

 

Clause 5.2 read as follows "The parties to the contract agree that any notice of cancellation will be in written and delivered to the seller's business address by hand or registered post".

 

5.2   After conclusion of the agreement and delivery of the motor vehicle the plaintiff experienced several mechanical breakdowns with the motor vehicle and reported same to the defendant where after the defendant undertook to remedy the defects which took several times before the defects were remedied.

 

5.3   According to the defendant he had honored their obligations to remedy and repair the defects complained of by the plaintiff and that the motor vehicle was ready to be delivered to the plaintiff together with a further warranty to remedy any defects that may surface within 6 months. Plaintiff •rejected the offer and demanded cancellation and refund of the money paid.

 

6.      THE HEARING

 

On the 28th of June 2023 the trial commenced and the plaintiff and their witnesses provided evidence and detailed sequence of events leading to the current proceedings. The facts will not be fully repeated as they have been set out above under the heading and background.

 

7.      PLAINTIFF'S CASE

 

7.1   The plaintiff in their own case tendered viva voce evidence and evidence of 2 further witnesses in support of their case.

 

7.2   In summary the plaintiff in her case testified that she purchased a motor vehicle from the respondent after she has been searching for motor vehicle which she intended to use for purposes of scholar transport having discovered that there was a need and the demand for same in her neighbourhood. She had on the day gone looking for and where she saw several motor vehicle amongst them a Mercedes benz sedan motor vehicle. She received the call from the second witness that she had seen an H1 motor vehicle being advertised online by the defendants and at the time she was in the company of the second witness and they drove to Klerksdorp where they found the third witness already at the garage of the defendant and they saw the H1 motor vehicle where after they were happy with the motor vehicle and negotiated and agreed on the purchase price payment arrangement were made and she left with the second witness to go to the bank to do the necessary transfer of the payment agreed upon.

 

7.3   Upon arrival back at the dealership, they gave proof of payment and the deal was concluded where they signed documents and the car was delivered to her and they drove away with the motor vehicle which at the time been driven

 from the dealership by the third witness Ms Suzan Makgwana in her presence.

 

7.4   They drove the motor vehicle home to Kanana Orkney and did not experience any problems and she on the following day only drove the motor vehicle to a nearby garage and drove back home without any problems being experienced. According to evidence two weeks after delivery of the motor vehicle the vehicle stopped as a result of mechanical problems and they informed the defendant accordingly and the defendant undertook to come and assist to have the motor vehicle fixed which was not done on the same day but the vehicle was collected on the following day by the defendants and taken to their workshop. The plaintiff then delegated the second witness Mr Hendrick Makgwana to attend and monitor the repairs to the motor vehicle. She in evidence informed the court that she approached the defendant to demand that she must be given a new contract or another car which she saw on the floor which was sedan motor vehicle to which the defendant refused and indicated that the motor vehicle she purchased has been duly repaired at the particular cost and free from any defects.

 

7.5   The second and the third witness in the plaintiffs case confirm the plaintiffs version how the motor vehicle was purchased and delivered and manifested with defects and was taken back to the respondent and defendants undertook to repair and rectify the defect which according to them was not duly done as the motor vehicle was smoking and did not have power as they drove it after it was repaired. I must point out that there were certain contradictions on the plaintiffs case and her witnesses regarding at what stage and the actual defects complained of and further on the route that the motor vehicle would have manifested itself with defects on the one hand it was testified that the defects where detected on the way to Kanana or within Klerksdorp town contracting evidence that it was on way to Ventersdorp road at the bridge.

 

8.      DEFENDANT CASE

 

8.1   The defendant in their case tendered evidence of two witnesses to the effect that indeed the plaintiff purchased a motor vehicle from them and after delivery the motor vehicle it was test driven and the plaintiff was happy with the motor vehicle. She after sometime came back complaining of certain defects on the motor vehicle of which they attended to and remedied the defects amongst others they replaced the turbo and went further to overhaul the engine then further offered to deliver the motor vehicle to the plaintiff with an offer of a further six month warranty in case of any defects. The plaintiff refused to accept the offer and demanded the refund of the money paid or to be given another smaller vehicle.

 

8.2   The defendant further testified that the plaintiff did not as per signed written agreement give them written notice of intention to cancel the agreement thus the contract was not duly cancelled as per agreement consequently they were not liable to refund the plaintiff and that the vehicle is ready for delivery to the plaintiff with an extended warranty as provided for by the Consumer Protection Act.

 

9.      ISSUES TO BE DECIDED

 

1.  The court is Required to decide whether in terms of the Consumer Protection Act the plaintiff is entitled to the following;

 

-          Refund of the amount of the purchase price paid and cancellation of the contract and or whether she is or entitled to cancel the agreement and for the defendant to refund the claimed amount.

 

-          The court has to decide whether defendant has complied with obligations as provided for in the legislation that is provided for within our laws and the Consumer Protection Act and whether the vehicle delivered was suitable for the purposes it was intended for.

 

10. The Law and applicable legislation

 

10.1        Section 53(1) of CPA

 

(a)    "defect" means-

(i)     any material imperfection in the manufacture of the goods or components, or in performance of the services, that renders the goods or results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or

(iii)    any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances;

(b)    "failure" means the inability of the goods to perform in the intended manner or to the intended effect.

 

10.2       Section 55 (1) sets out the consumer rights as follows:

 

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; 106 5 10 15 20 25 30 35 40 45 50;

(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)    Subsection (2)(a) and (b) do not apply to a transaction if the consumer-

 

(a)      has been expressly informed that particular goods were offered in a specific condition; and

(b)      has expressly agreed to accept the goods in that condition, or knowingly acted in a manner consistent with accepting the goods in that condition.

 

10.3       In terms of Section 56. (1) OF CPA

 

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 di covered, the supplier must-

 

(a)    replace the goods; or

(b)    refund to the consumer the price paid by the consumer for the goods.

 

(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.

 

11. CONSIDERATION OF THE MERITS

 

11.1   It is trite law in contracts that there should be performance by both parties of their respective obligations. The plaintiff paid for the purchase of the motor vehicle and the defendant had to deliver the motor vehicle as agreed between the parties.

 

11.2       The plaintiff complained of defective performance and on the other hand the defendant pleaded that he had remedied all the defects in the purchased motor vehicle.

 

11.3       The key question to answer is whether the applicant's cancellation of the arrangement was justified or not?

 

11..3.1  In STRACHAN V PRINSLOO 1925(6)PHA9(TPD) the court held that:-

 

1.      To determine if the cancellation was justified the test to apply was whether a party had failed to perform a vital term express or implied of the agreement

2.      An important factor in deciding whether such term was vital was the question whether the party would not have entered onto the agreement in the absence of such a term.

 

12. It is this courts view that the plaintiff did in fact complain about the defects on the motor vehicle and that the defendant did endeavour to remedy the defects in the motor vehicle. The defendant ultimately provided proof to the court of the repairs done on the motor vehicle in the total sum of R137 597. 85 and further submitted that the motor vehicle was readily available to be delivered to the plaintiff and further committed to offer a further warranty on the workmanship of the repaired motor vehicle for 6 months.

 

13. It appeared from the plaintiff's evidence during her testimony that upon cancellation of the agreement she would have demanded that the defendant should provide her with an alternative smaller car which proposal the defendant did not accept as he already incurred financial losses in repairing the H1 the plaintiff had purchased. This factor also arises from the plaintiffs conduct before she went to the defendant's dealership wherein she looked for motor vehicles at Gauteng however she looked at sedans and though she wanted a combi. This to the court's mind brings the conduct of the plaintiff as having second thoughts on the purchase she made and thus seeks to cancel the agreement to have another choice of motor vehicle.

 

14. It is true that the general purpose of the consumer protection legislation it's a strike balance between the rights and perceived vulnerabilities of the consumer on the one hand and the rights and obligations of the supplier of goods or services on the other. The objectives of the CPA is to protect the interests of the consumer it also seeks to ensure accessible transparent and efficient ways for consumers who have been disadvantaged abused and exploited in the market place and gives effect to the internationally recognized consumer rights.

 

15. On the other hand the intention of legislature was not intended to prejudice Suppliers of goods in cases where they would have made all attempts to comply with the provisions of the legislation as the CPA is intended to level the plain field and not only focus on the wishes of consumers who may abuse the court system to the prejudice of the suppliers.

 

16. It is so that the consumer or the plaintiff give an impression to the court that she was not aware of the existence of the contract terms provided as she's purportedly signed without reading but during her testimony she presented documents amongst which the said contract was in her possession.

 

17. Termination by cancellation of the agreement in accordance with general principles of contract either party may elect to terminate the contract where the other party commits a material breach of the contract or where the agreement contains a cancellation clause providing that the non-defaulting party's right to cancel the contract may arises on receipt of the notice to do so, then in accordance with the general principles of contract the party seeking to rely on such failure as a ground for cancellation of the contract has to show that it has complied strictly with the provisions of such clause.

 

17.1   In the matter before this court the contract did make provisions for cancellation of the contract however the plaintiff has not convinced this court that she had fully complied and gave notice of cancellation in writing as per agreement between the parties which clause this court finds to be a valid and binding agreement.

 

17.2   It has also not been submitted that the requirement of notice of termination of the agreement to be in writing in this matter offends against the provisions of Section 48(1) of the CPA to be regarded as an unfair, unreasonable or unjust contract term.

 

18. The conduct of the plaintiff in regard to her taking control of the purchased motor vehicle also seems to be surprising to this court.

 

18.1   On her own evidence she had not been in full control and drove the vehicle to satisfy herself of its quality.

 

18.1.1     Upon taking delivery from the dealership she did not drive the car home but the third state witness is the one that drove the car to Kanana where it was parked. She was just a passenger in her own newly bought motor vehicle.

18.1.2     Plaintiff claims to have on an accession only drove the vehicle for about two kilometers to a nearby garage and back home.

18.1.3     On a later date when the vehicle was now again driven she was again not the driver of the car as it was driven by the second witnesses Mr Hendrick Makgwana.

18.1.4     After the car manifested she apparently delegated Mr Hendrick Makgwana to attend to complaints with the dealership.

18.1.5     The.plaintiff in her testimony confirmed that she was in a possession of a valid driver's licence and capable of driving the H1 motor vehicle which was an automatic yet she was seldom driving the motor vehicle.

 

19. During her testimony the plaintiff when probed on what prejudice would she suffer should the motor vehicle be returned to her in a repaired state together with a further warranty on only defects that may surface her response was that she would not suffer any prejudice safe to say she no longer trust the defendants.

 

20. This court is not satisfied that a proper case had been made OGT by the plaintiff for a remedy under Section 65(3)(b) of the CPA having regard to the evidence presented in-this matter, to the extent that at the time the matter proceeded to trial there was no dispute regarding the nature of the defects in the vehicle as the vehicle was ready to be delivered to the plaintiff with a further warranty.

 

21. In trying to assess and evaluating and also bringing balancing act the court enquired from the plaintiff as to what prejudice would she suffer should the motor vehicle be repaired to her satisfaction and delivered to her and her answer was to the effect that she would not suffer any prejudice.

 

22. In the submissions made on behalf of the consumer it has been not argued that clause with a requirement for written cancellation offends against the prescription of the Consumer Protection Act and the law.

 

23. CONCLUSION

 

23.1 On the conspectus of submissions and evidence provided and on the balance of probabilities it is this courts view that the defendant did not engage in prohibited conduct and accordingly not in breach· of the Consumer Protection Act and he indeed have remedied the defect on the vehicle and further give warranties which are in favor of the plaintiffs interests and to her benefit.

 

23.2 It is this court's finding that the consumer or the plaintiff is not entitled to cancellation of the agreement and demand the monies paid however she is entitled to receive the motor vehicle that is free from defects as offered by the defendant.

 

23.3 As the court was not furnished with a complete report confirming the remedied defects and the vehicle was not inspected prior to the making of this order the court deems it necessary to make an ancillary order to ensure compliance by the defendant.

 

ORDER

 

 

Accordingly, the following order is made:

 

1.          The contract between the parties is ordered valid.

 

2.          The defendant is ordered to deliver the H1 motor vehicle to the plaintiff and to give six months the written warranty within seven days from the date of this order.

 

3.          The defendant is ordered to take vehicle for road worthy test and effect change of ownership to have the motor vehicle registered in the plaintiff's name. within 7 days from the date of this order.

 

4.          It is ordered that should the defendants fail to deliver the H1 motor vehicle to the plaintiff as per no order 2 and 3 the motor vehicle shall be subjected to inspection by an independent expert and a report to be complied whereafter the court shall make an alternative appropriate order which may include and not limited to invoking the provisions of Section 52(1)(2)(3) read with Section 41(1(a) of the CPA.

 

5.          No order to costs is made.

 

 

DATED AT KLERKSDORP ON THIS THE 15^th OF SEPTEMBER 2023.

 

 

KJP KGOMONGWE

CHAIRPERSON

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