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Chetty v Bidvest MnCarthy Volkswagen (Pty) Ltd (NCT/105595/2018/75(1)(b)) [2018] ZANCT 138 (29 October 2018)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN DURBAN

Case number: NCT/105595/2018/75(1)(b)

In the matter between:

PAVESHN CHETTY                                                                                           APPLICANT

and

BIDVEST MCCARTHY VOLKSWAGEN UMHLANGA (PTY) LTD               RESPONDENT

Coram:

Mr A Potwana                      -           Presiding Tribunal Member

Ms H Devraj                        -           Tribunal Member

Adv J Simpson                    -           Tribunal Member

Date of Hearing                  -           24 October 2018

Date of Judgment               -           29 October 2018


JUDGMENT AND REASONS


APPLICANT

1. The Applicant is Paveshn Chetty; an adult male person who resides in Westville, Durban, KwaZulu-Natal (“Mr Chetty”). At the hearing; Mr Chetty represented himself.

 

RESPONDENT

2. The Respondent is Bidvest McCarthy Volkswagen Umhlanga (Pty) Ltd; a private company that is duly incorporated and registered in accordance with the company laws of the Republic of South Africa; with its registered address at 6-7 Sunset Crescent Umhlanga Ridge, Durban, KwaZulu-Natal (“the Respondent”). At the hearing; the Respondent was represented by its legal representative; Ms B Larratt of Larratt Attorneys.

 

BACKGROUND TO THE COMPLAINT

3. On 25 April 2018; Mr Chetty filed an application for leave to refer his complaint to the National Consumer Tribunal (“Tribunal”). Also; he applied for condonation for the late filing of the application for leave to refer. Condonation was granted and judgement was issued on 5 July 2018. Subsequently; leave to refer the complaint to the Tribunal was also granted. The ruling was issued on 7 September 2018.  The matter was then set down for hearing of the merits on 24 October 2018.

4. According to Mr Chetty; on 19 July 2016 he took his VW Golf VI GTi motor vehicle (“the vehicle”) to the Respondent for a brake fluid change. On 27 August 2016; he noticed a warning light indicating “Brake fluid-workshop”. On 29 August 2016; the vehicle was taken to the Respondent for a diagnostic report. The diagnostic report stated that the “ABS pump was defective”. Mr Chetty alleged that; the cause for the damage to the ABS pump was that; the Respondent did not change the brake fluid when he brought the vehicle for a brake fluid change. He wants the Respondent to pay the cost of replacing the ABS pump and module. The cost of replacement is R41 000.00. Also; he wants the Respondent to pay the labour and diagnostics costs of R910.00.

5. Prior to approaching the Tribunal; Mr Chetty filed a complaint with the Motor Industry Ombudsman of South Africa (“the MIOSA”). The MIOSA concluded that; the Respondent should engage the services of an independent third party to inspect the ABS pump; at no cost to Mr Chetty. The MIOSA also advised Mr Chetty that if the Respondent did not adhere to its findings; Mr Chetty should approach the National Consumer Commission (“the Commission”). Mr Chetty approached the Commission and the Commission issued a notice of non-referral. Mr Chetty then approached the Tribunal.

 

FACTS

6. At the hearing; Mr Chetty gave evidence under oath. The nub of Mr Chetty’s complaint is that; on 19 July 2016 he took his vehicle to the Respondent for a brake fluid change. On 27 August 2016; he noticed a” Brake Fault-Workshop” warning light on the dashboard of his vehicle. He checked his vehicle and noticed that the brake fluid was a dark black colour. He concluded that; although he paid for a new brake fluid and was issued with an invoice; the Respondent did not replace the brake fluid. Also; he observed that there were some particles in the brake fluid. This was approximately two months after he took the vehicle for a brake fluid change.

7. He argued that the Respondent’s failure to change the brake fluid caused damage to the vehicle’s ABS pump and module. In support of this assertion; he referred to an email he received from the manufacturers of the ABS pump, ATE Germany. In this email; it is stated; amongst others; that:

It is possible that the brakefluid is the reason for the destroyed pump. Otherwise is it possible that the electronic inside has a damage. But only your workshop can check this.” (sic in toto)

8. Under cross examination; Mr. Chetty admitted that in his statement to the MIOSA; he incorrectly stated that the manufacturer said that the dirty/ contaminated brake fluid caused the ABS pump to fail prematurely. However, he submitted that it was for the Respondent to prove that the brake fluid did not cause damage to the ABS pump and module.

9. The Respondent denied that it did not replace the brake fluid with a new brake fluid. According to the Respondent; brake fluid changes colour due to circulation in the braking system. The Respondent called Mr James Candey as a witness. Mr Candey testified that he has been the Respondent’s Service Manager for nine years and is a qualified mechanic. He testified that new brake fluid is collected from the store using a “picking slip”. This is done under camera surveillance. A pressure machine is then used to flush out the old brake fluid and replace it with new brake fluid. This is done according to Volkswagen (“VW”) standards. He testified that the Respondent tries to assist its customers and does its job properly and fairly. Under cross examination; Mr Candey admitted that he had no direct evidence to prove that the old brake fluid oil was actually replaced. The only way one can have first-hand knowledge that old brake fluid was indeed replaced is if a person actually stands with the mechanic at all times to verify the replacement process.

10. On the issue of whether dirty brake fluid can cause damage to the ABS pump; Mr Candey testified that there is no way that brake fluid can cause damage to the ABS pump. He testified that the ABS pump has a hydraulic and an electrical component. The brake fluid cannot affect the hydraulic component and cannot cause mechanical faults. However; corrosion over a period of time could damage the electronic connections in the electrical component. Age could also play a role. In his view, the diagnostic findings were conclusive that the fault was electrical. In addition; the test drive that was conducted in the presence of Mr Chetty showed that; the hydraulics were fine as the vehicle stopped when braked and continues to do so.

11. Regarding the contamination of brake fluid; he stated that since Mr Chetty’s vehicle was old; the rubber around the hydraulic part of the pump could crack and small particles fall off.  This could contaminate the brake fluid. Mr Chetty pointed out that; the first diagnostic report showed that the ABS Hydraulic Pump was defective. Mr Candey responded by stating that the entire pump is sometimes referred to as the ABS Hydraulic Pump but it has two components i.e. the electrical and the hydraulic parts.

12. Regarding the contents of the email from the manufacturer; Mr Candey pointed out that the manufacturer never tested the pump. He stated that he tried to assist by offering Mr Chetty a second hand part but Mr Chetty rejected the offer.    

 

THE LAW

13. In Section 53(1)(a) of the CPA; a “defect” is defined as-

(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 services less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or

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

14. Section 54(1) of the CPA states-

When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to –

(a) the performance of the services in  manner and quality that persons are generally entitled to expect;

(b) the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services.”

 

ANALYSIS OF THE EVIDENCE

 

Brake fluid change

15. Mr Chetty did not adduce any evidence to prove that the Respondent did not change the brake fluid. His conclusion that the Respondent did not change the brake fluid was based on the change in the colour of the brake fluid. He rejected the Respondent’s explanation that the brake fluid changes colour after circulating in the brake system. But; he did not submit any evidence to prove the contrary. The Respondent’s witness, Mr Candey, clearly explained the procedure that the Respondent follows when replacing brake fluid. He explained that the contamination of the brake fluid might have been caused by the cracking of the rubber around the hydraulic part of the ABS pump. The age of the vehicle makes this probable. He testified in a coherent and straightforward manner. There is no reason to believe that that the Respondent did not follow its standard procedure in changing the brake fluid in Mr Chetty’s vehicle. In any event; Mr. Chetty did not submit any evidence to prove that the Respondent did not follow its usual procedure in changing the brake fluid in his vehicle.

 

Damage to the pump

16. Mr Chetty admitted that; although he is a mechanical engineer; he is not an expert on hydraulic pumps. Therefore; he could not say whether the brake fluid caused damage to the ABS pump and module. He was relying on what the manufacture said. And; he wanted the Respondent to prove that the brake fluid did not cause damage to the ABS pump and module.

17. Mr Candey explained that the diagnostic report showed that only the electrical part of the ABS pump was damaged. There was no way that the brake fluid could cause damage to the ABS pump. The manufacturer never tested the ABS pump. Except where there has been corrosion over a period of time; the brake fluid could not affect the hydraulic part of the ABS pump.

 

CONCLUSION

18. As Mr Chetty was alleging that the Respondent caused the damage; he bore the onus to prove; on a balance of probabilities; that the Respondent’s actions caused damage to the ABS pump and module. In Pillay v Krishna[1]; Davis AJA the Appellate Division held that:

If one person claims something from another in a Court of Law; then he has to satisfy the court that he is entitled to it. But there is a second principle which must always be read with it…Where the person against whom a claim is made is not content with a mere denial of that claim, but sets up a special defence, then he is regarded as qou ad that defence as being the claimant; for his defence to be upheld he must satisfy the court that he is entitled to succeed on it.” (sic in toto)

19. Mr Chetty did not submit any evidence that could refute the Respondent’s version that it replaced the old brake fluid with a new one. This is where this matter should rest. But; for the sake of completeness; it should also be mentioned that Mr Chetty did not prove that the brake fluid caused damage to the ABS pump and module. He merely required that the Respondent prove that he was wrong in asserting that the brake fluid caused damage to the ABS pump and module.

20. Authors Hoffman and Zeffertt[2] state that:

There is, however, Appellate Division authority that the practical difficulty of proving a negative does not affect the incidence of the onus of proof; nor does it, normally, have the effect of shifting the evidential burden.”

21. Mr Chetty bore the onus but failed to prove; on a balance of probabilities; that the Respondent did not change the brake fluid and that this caused damage to his vehicle’s ABS pump and module.

22. There is no basis for a finding that the Respondent did not change the brake fluid thereby causing damage to Mr Chetty’s ABS pump and module.

 

ORDER

23. The Tribunal makes the following order:-

23.1. the application is refused; and

23.2. there is no order as to costs.

 

Thus; done and signed at Centurion on 29 October 2018.

{signed}



Mr A Potwana

Presiding Tribunal Member

Ms H Devraj (Tribunal Member) and Adv J Simpson (Tribunal Member) concurring.


[1] 1946 AD 946 at 951-52.

[2] Hoffman LH and Zeffertt D (1989), The South African Law of Evidence, Butterworths at 512.