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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/118285/2018/75(1)(b)

In the matter between:

THEMBA JOSHUA NKOSI                                                                               APPLICANT

and

THE GLEN MULTIFRANCHISE (PTY) LTD

T/A KIA IMPERIAL SELECT                                                                       RESPONDENT

 

Coram

Mr A Potwana           - Presiding Tribunal Member

Date of Hearing        - 14 May 2019

 

JUDGEMENT AND REASONS

 

THE PARTIES

1. The Applicant is Mr Themba Joshua Nkosi; an adult male person. The Applicant is a consumer as defined in Section 1 of the Consumer Protection Act 68 of 2008 ("the CPA"). At the hearing; the Applicant represented himself.

2. The Respondent is The Glen Multifranchise (Ply) Ltd trading as Kia Imperial Select; a company that is duly registered in terms of the company laws of the Republic of South Africa. At the hearing; the Respondent was represented by Mr Pieter Jacobs; the Respondent's legal advisor.

 

TYPE OF APPLICATION

3. The application brought before the Tribunal is in terms of Section 75(1)(b) of the CPA. The Applicant filed the application after the National Consumer Commission ("Commission") decided not to refer his complaint to the Tribunal and issued a Notice of Non-Referral. The Applicant has applied for leave to self-refer the complaint to the Tribunal. In accordance with Section 75(1)(b) of the CPA, only the application for leave to refer is being considered at this stage.

4. This judgment follows a consideration of the documents filed of record as well as arguments presented by both parties at the hearing held in Centurion on 14 May 2019.

 

BACKGROUND

5. On 19 October 2018; the Applicant served Form Tl.r30A together with Form Tl.73 & 75(1)(b) & (2) CPA on the Respondent; and filed the same with the Registrar of the Tribunal. Form Tl.r30A is a Filing Notice. Form Tl.73 & 75(1)(b} & (2) is the prescribed form for referring complaints to the Tribunal after the Commission issued a Notice of Non-Referral. A supporting affidavit was attached thereto. In the affidavit; the Applicant alleged that: " This is an application in terms of section 75(1)(b) of the CPA for a vehicle that has been continuously giving engine problems since I purchased." (sic-in-toto)

6. The Applicant alleged that he bought a used car; a 2009 model Ford Focus; from the Respondent for the sum of R193080.82. On 22 July 2016; he collected the car. At the time of delivery; the car's odometer showed that the car had travelled 121 034 kilometres. A week later; he noticed "the opposite of what the salesperson said" as the engine sign kept illuminating and then switching off. He took the car back to the Respondent. Although there was some work done on the car; the car was never properly repaired as the engine sign was still illuminated. In October 2016; less than 3 months after the car was repaired; the engine overheated. He took the car back to the Respondent. Initially; the Respondent refused to repair the car; and the Applicant drove away with the car.

7. It was only after lodging a complaint with the Motor Industry Ombuds of South Africa ("MIOSA ") that the Respondent agreed to take the car. Sometime in October 2016; the Applicant left the car with the Respondent for 6 months as·the Respondent kept telling him-that it was looking for a replacement engine. The Respondent took the car to Ford McCarthy ("Ford"). In April 2017; Ford called the Applicant and told him that the car was ready. He took the car; but it broke down in less than 11 hours. He drove the car back to the Respondent on the same night. The Respondent proposed to repair the car. Sometime in May 2017; the Respondent attended to a water leak and other repairs at no cost to the Applicant. On or about 9 June 2017; the Respondent asked the Applicant to collect the car. However; when the Applicant collected the car; the Respondent's Service Advisor discovered that the engine was not turning. The engine was stripped and repairs were done at a cost of R8620.00 which the Respondent accepted liability.[1]

8. Towards the end of June 2017; once again the Respondent asked the Applicant to collect the car. The Applicant noticed that the engine sign was still illuminated. When he questioned this; he was told that he would be contacted within a week and a diagnosis would be done. When he was not contacted as promised; he drove to the Respondent's premises where a certain Andreas told him he was going on leave and Cecilia would be assisting him. But; he was never assisted.

9. The Applicant drove the car for about four weeks and the engine started mixing oil with water. He called the Respondent and the latter promised to call him. When the Respondent did not contact him; he took the car to Sangoma Motors ("Sangoma") for repairs and paid. On 7 December 2017; he went to the Respondent's premises where he argued with the Dealer Principal; Ralph. He requested a refund of the purchase price but Ralph suggested that Respondent should replace the engine and the engine control unit. Ralph asked the Applicant if he would be happy if the Respondent repaired the car or paid for repairs. The Applicant agreed. He was then asked to get a quotation but nothing was done after he agreed that the car be repaired by Sangoma Motors. He struggled to get hold of Ralph and was later told that there was a new dealer principal; Mike. Mike told him that the Respondent will not repair the car. The Respondent has been ignoring him since.

10. The Applicant averred that he suffered by paying an instalment of R4470 for 26 months for a vehicle that he could not even drive for more than 7 months. He alleged that he only covered approximately 9000km in the car. He wants the Respondent to take the car, pay the outstanding balance of R136 500.00 owed to the financial institution, refund him the sum of R142 000.00 being the total amount for an the instalments he has paid, and refund him the purchase price of R193 080.82.

11. After the Respondent failed to comply with the MIOSA recommendation to complete the repairs; the Applicant filed a complaint with the Commission. On 24 August 2018; the Commission issued a Notice of Non-Referral stating that the applicant did not allege any facts. if true, would constitute grounds for a remedy under the CPA.

12. On 24 August 2018; the Applicant filed an application with the Tribunal but failed to comply with certain filing requirements. On 19 October 2018; the Applicant managed to file the application but had to seek condonation. Condonation was granted on 20 February 2019 and issued on 25 February 2019.

13. On 18 March 2019; the Respondent filed an opposing affidavit. The basis of the Respondent's defence is that paragraph 8.2.2 of the terms and conditions of the purchase agreement state that any warranty will be voided if the goods were subjected to misuse or abuse. The car passed a roadworthy test on 18 July 2017 before delivery to the Applicant. The Respondent denies that it sold a defective vehicle to the Applicant and alleged that the warranty expired on 21 January 2017.

14. At the hearing; Mr Jacobs denied that the Applicant left the car at the Respondent's premises for 6 months. He stated that the 6 months' statutory warranty lapsed when the Applicant took the car to a third party; Ford, The Glen. He argued that the Applicant's case was not supported by documents. Notwithstanding; the fact that the warranty lapsed; the Respondent replaced the engine in the beginning of April 2017. The warranty on the engine replacement lapsed on 02 July 2017. Although the Respondent performed some repairs in May and June 2017; these were minor repairs which did not carry any warranties.

15. In reply; the Applicant submitted that he took the car to Ford, The Glen; in October 2016 because the Respondent was denying that there were defects and refusing to accept liability. It was only after he obtained advice from Ford, The Glen; that he was able to successfully argue with the Respondent which resulted in the Respondent agreeing to replace the car's engine.

 

ISSUES TO BE DECIDED

16. The Tribunal is required to determine whether the Applicant should be granted leave to refer his complaint lo the Tribunal.

 

THE LAW APPLICABLE TO THE APPLICATION

17. Section 54{1)(a) to (c) 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 timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;

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

(c)  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."

18. Section 55{2) of the CPA states -

"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 5 No. 29 of 1993), or any other public regulation."

19. Section 55(6) qualifies consumers' rights in section 55(2) and states-

"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".

20. Section 56 states-

"(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) 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 discovered, 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."

21. Section 57(1) of the CPA states-

“A service provider warrants every new or reconditioned part installed during any repair or maintenance work, and the labour required to install it for a period of three months after the date of installation or such longer period as the supplier may specify in writing."

22. The CPA does not specify the factors which the Tribunal must consider in determining whether an applicant should be granted leave to self-refer a matter to the Tribunal. In previous decisions; the Tribunal has referred to Westinghouse Brake and Equipment (Ply) Ltd[2] where the court was dealing with the issue of leave to appeal against a judgment. In Westinghouse; the court held that the relevant criteria are whether the applicant has reasonable prospects of success on appeal; and whether or not the case was of substantial importance to the applicant or to both him and the Respondent.

23. When considering whether to grant an applicant leave to refer; the Tribunal has adopted the same test as applied in the High Court for applications for "leave”.[3] The Tribunal will therefore consider the following factors:

23.1. whether the matter is of substantial importance to the Applicant; and

23.2. the Applicant's reasonable prospects of success with the referral.

 

ANALYSIS OF THE EVIDENCE AND REASONS FOR JUDGEMENT

24. It is apparent from the submissions made by both parties that; this matter is of substantial importance to both parties. This is evidenced by the extensive papers filed by both parties wherein arguments and counter arguments related to this matter are expressed.

25. Regarding the Applicant's reasonable prospects of success; the first question is whether the substance of the Applicant's complaint falls within the ambit of the CPA. The second question is whether there are sufficient facts upon which the Tribunal may make a finding in favour of the Applicant; without deciding on the merits of the matter. The matter cannot be referred to the Tribunal as a fishing expedition to establish the facts.

26. Section 56 of the CPA makes it clear that the Applicant had the right to receive a car that was of good quality, in good working order and free of any defects. And; the car had to be usable and durable for a reasonable period in time; having regard to the use to which a car would normally be put. The Applicant argued that his vehicle was defective within a week of purchase. For purposes of the current proceedings; the Tribunal must give weight to the fact that the Applicant's car exhibited defects within six months of purchase. Although the Respondent has raised some defences as referred to in paragraphs 13 and 14 above; the Respondent's conduct in replacing the car's engine suggests that the Respondent acknowledged that it was liable.

27. With regard to Section 55; the fact that the Respondent replaced the car's engine and continued to repair it; suggests that the Applicant's right to receive goods that were of good quality, in good working order and free of any defects; and would 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; might have been infringed.

28. With regard to section 56(3); it is common cause that within three months after the engine replacement; the car exhibited engine problems and had to be repaired again.

29. Having considered the facts and the law; the Tribunal finds that the Applicant enjoys reasonable prospects of proving; on a balance of probabilities; that his rights as encapsulated in sections 55 and 56 of the CPA were infringed and that he is entitled to a refund of the purchase price.

 

CONCLUSION

30. The Applicant has satisfied the requirements for granting leave in terms of Section 75(1)(b) of the CPA.

 

ORDER

31. The Tribunal makes the following order:

31.1 The Applicant is granted leave to refer his complaint directly to the Tribunal; and

31.2 There is no order made as to costs.

 

Thus; done and signed on this the 20th day of May 2019.

 

 

___________________

Andisa Potwana

Presiding Tribunal Member

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