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Henning v South Cape Auto (Pty) Ltd (NCT/94740/2017/75(1)(b)) [2018] ZANCT 10 (26 February 2018)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/94740/2017/75(1)(b)

In the matter between:

CARINE MARIANNE HENNING                                                                      APPLICANT

and

SOUTH CAPE AUTO (PTY) LTD                                                                  RESPONDENT


Coram:

Prof K Moodaliyar – Presiding member


CONDONATION JUDGMENT


THE PARTIES

1. The Applicant in this matter is Carine Marianne Henning, a major female person residing in George (hereinafter referred to as “the Applicant”).

2. The Respondent is South Cape Auto (Pty) Ltd, a Hyundai motor vehicle dealership, based in George, incorporated as a company and registered in terms of the company laws of the Republic of South Africa, having its principal place of business in Johannesburg (hereinafter referred to as “the Respondent”).

 

APPLICATION TYPE

3. This is an application to the National Consumer Tribunal (“the Tribunal”) to condone the Applicant’s non-compliance with its rules.

4. The application is brought in terms of Rule 34(1) of the Regulations for Matters relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal[1] (hereinafter the “Rule” or “Rules”).

5. The Respondent is not opposing the application for condonation and the application is accordingly considered on an unopposed basis.

 

FACTS OF THE MATTER

6. On or about the 8th of January 2016, the Applicant purchased from the Respondent, a motor vehicle, a 2009 BMW X6 xDrive50i for the amount of R378 853 (three hundred and seventy eight thousand, eight hundred and fifty three Rand). The vehicle was bought second-hand and according to the Applicant, the deal was done in good faith and with the assurance from the dealer that the vehicle was roadworthy, accident free, and in perfect running order with a FSH and an Extended Warranty.

7. The Applicant alleges that within the first week of purchasing the vehicle from the Respondent, the radio console as well as the mileage console reverted to blank screen every time the ignition was switched off.  This had to be re-set manually upon starting the engine.

8. The Applicant consulted with Lynn Shroeder BMW George (“BMW, George”), an authorised and registered BMW dealer where it was explained to her that the on-board battery power saving system resets these console indicators automatically should the vehicle not be driven regularly.

9. Shortly after this initial consultation with BMW George, the Applicant was driving en route to Cape Town when the “low oil” warning light appeared.  She states that she topped up the oil with an approved brand.

10. One week later, the “low oil” warning light appeared again, and she again, topped up with oil of an approved brand.

11. Soon after, the “fuel combustion” warning light appeared. She returned to BMW, George where this indicator was reset using as she alleges, authorised BMW diagnostic equipment.  No mechanical work was performed at this stage.

12. The Applicant alleges that the same warning light appeared again, and at this stage BMW, George diagnosed a “missing O-ring” in the engine.  The Applicant states that she does not have any knowledge of vehicle mechanisms and she trusts the expertise and explanation of the diagnoses by BMW, George.

13. The Applicant alleges that she informed Respondent from the very first incident she experienced after the purchase of the vehicle and every subsequent item that required attention.  She informed the Respondent of BMW, George’s diagnosis of the vehicle.

14. BMW, George’s diagnoses report revealed that the initial fault codes indicated a valve timing malfunction.  During the disassemble process to inspect this timing mechanism, a broken timing chain guide was found.  Non-genuine bolts on various positions, as well as two loose foreign objects in the oil sump were also found.  The battery was a ‘non-BMW’ battery.

15. The Applicant alleges that she made numerous calls to the Respondent shortly after the purchase of the vehicle, to explain her situation and to discuss a mutual arrangement to have the vehicle repaired to a driveable state.

16. The Applicant says she appealed for assistance from the Respondent within the 6 month period after the purchase of the vehicle, to no avail.  The Respondent did not want divulge from whom they purchased the vehicle, nor were they prepared to repair or replace the vehicle or refund the Applicant for her purchase amount that she requested.

17. The Applicant states that that the Respondent does not employ any one of the 25-26 BMW Master Mechanics in South Africa, who she alleges, are the only mechanics qualified and authorised to work on the BMW X6 series.

18. The Applicant stresses that after months of engagement with the Respondent who did not offer her any assistance and who were aware that her vehicle was in a non-running state and that repairs had to be performed to return the vehicle to a roadworthy and running state, the Respondent refused to give their consent for the repair or to come to an amicable agreement (Sec 56 of the Consumer Protection Act).

19. Having experience much delay and no success with the Respondent to get her car in a roadworthy position, the Applicant approached BMW, George to commence repair of her vehicle.

20. The Applicant alleges that the repair begun on 4 August 2016 and took approximately 11 months to complete at a cost of approximately R122 000.24. Further accumulated costs amounted to approximately R66 000, costing the Applicant approximately R 188 00.24 in total to repair her vehicle.

21. The Applicant approached the Motor Industry Ombudsman of South Africa (“MIOSA”), which subsequently issued a letter to the Applicant on 26 June 2017 stating that the car is beyond the 6 months warranty period and that the vehicle was repaired without the consent of the Respondent. MIOSA closed the case file, telling the Applicant that she can approach the National Consumer Commission (“NCC”) if she so wishes.

22. The Applicant thereafter filed a complaint with the NCC on 27 June 2017.  The NCC issued her a notice of non-referral on 22 September 2017.   The Notice indicated to the Applicant that she had a right to approach National Consumer Tribunal to lodge an appeal.

23. It is against this background that the Applicant subsequently lodged the application with the Tribunal in terms of Section 75(1) of the CPA during 15 November 2017.  The Tribunal must now decide whether to grant the condonation taking into account various factors.

 

LEGAL PRINCIPLES

24. According to Rule 34(1) of the Tribunal Rules, a party may apply to the Tribunal for an order to, among others; condone the late filing of a document or application. The Tribunal may grant the order on good cause shown.

25. Whilst the Act does not provide criteria that may be considered when assessing whether to condone non-compliance with Tribunal rules or not, jurisprudence has been developed by the courts over time, providing guidance to the Tribunal.

26. For instance, in Melane v Santam Insurance Company Limited[2] when dealing with the question of condonation it was held that:

The approach is that the Court has discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degrees of lateness, the explanation therefor, the prospects of success and the importance of the case. These facts are inter-related: they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay.”

27. Similarly in Mbutuma v Xhosa Development Corporation Ltd[3] the court held that:

The main issue in these proceedings is whether this Court should grant the indulgence sought, notwithstanding the inordinate delay in approaching the court for condonation. The Court has a very wide discretion in these matters. Condonation may be granted under Rule 13 of the Rules of this Court if the applicant has satisfied the Court that sufficient cause has been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause has been shown, the Court will consider all the relevant facts and circumstances of the particular case, such as the degree of non-compliance with the Rules, for example the length of the delay, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice…”

28. From these two judgments it can be seen that not only must the Tribunal act fairly in arriving at a decision to grant or not to grant condonation, it must also consider a number of factors, including the degree of lateness of the application, the reasons therefor and the prospects for success by the applicant should the matter be heard and the importance of the case.


CONSIDERATION OF FACTORS

29. Whilst there is no exhaustive list of factors to be considered by a court or tribunal when deciding whether or not to condone non-compliance with its rules, the following factors were considered by the Tribunal in this matter:

(a) Degree of lateness;

(b) Reasons thereof;

(c) Prospects of success; and

(d) Importance of the matter.


Degree of lateness and reasons therefor

30. The Applicant filed its answering affidavit on 15 November 2017, more than 20 days after receiving the notice of non-referral from the NCC.

31. The Applicant sent correspondence to the NCT on 29 September 2017 with her supporting documents and was under the belief that this was her official application to the Tribunal.  She only later came to realise on 14 November 2017 after receiving a call from the Tribunal’s registrar’s office that her application required an affidavit in addition to the TL forms that she had completed and sent in earlier.

32. The Applicant is a lay person and it is reasonable to assume that she did not know the application processes of the Tribunal. The delay is not unreasonable and the Applicant did correspond with the Tribunal timeously, even though her application was not filed correctly.

33. The degree of lateness has to be considered in light of the other factors.

 

Prospects for success

34. The Applicant’s case is premised on the fact a week after purchasing the vehicle she began to experience mechanical problems. She kept in communication with the Respondent regarding the faults of the vehicle; the Respondent did not offer to repair the vehicle. After receiving the diagnoses from BMW and being informed that non-BMW brand parts were used on the vehicle she approached the Respondent again, who did not take up the matter with the Applicant.  The Applicant says she had to get her vehicle repaired and trusted that BMW, George to do the repair as they had the requisite authorised expertise to work on her vehicle.

35. Section 56(2) of the CPA provides that –

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.”

36. The Applicant argues due to the Respondent’s delay and refusal to assist her when she approached the Respondent within 6 months of purchasing the vehicle, she approached BMW, George to repair her vehicle.

37. Without attempting to pronounce on the merits of the case at this stage, the Applicant appears to have a prospect of success. However, there are various elements of the case that are at dispute and the Tribunal can determine the veracity of each allegation in a full hearing of the matter.

38. The Tribunal will have to adjudicate the matter taking into account the evidence presented by both parties. 


Importance of the matter

39. The Applicant takes the allegations levelled against it seriously as evidenced by her arguments proffered. She also approached the Motor Industry Ombudsman of South Africa and the NCC in an attempt to seek redress. This indicates the importance of the matter to the Applicant.


CONCLUSION

40. Having considered the reasonable explanation by the Applicant regarding the degree of lateness, the prospect of success and the importance of the matter to the Applicant, the Tribunal finds that it will be in the interest of justice to grant condonation for the late filing of the Applicant’s application. The importance of the case warrants that it be heard and finalised.

41. Therefore, the Tribunal having considered all the documents filed of record and all the factors relevant to the determination of this application makes the order below.

 

ORDER

42. The application for condonation is granted.

Thus done and handed down in Centurion on this 26th day of February 2018.

 

Signed

_____________________________

K MOODALIYAR

PRESIDING MEMBER

 


[1] Published under GN 789 in GG 30225 of 28 August 2007 as amended by GenN 428 in GG 34405 of June 2011 (published in terms of the Consumer Protection Act 68 of 2008). GN R203 in GG 38557 of 13 March 2015 and GN 157 in GG 39663 of 4 February 2016.

[2] 1962 (4) SA 531 (A) at 532C-F.