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[2023] ZANCT 24
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Ramangwa v Pro-Quick (Pty) Ltd and Another (NCT/254908/2023/75(1)(b)) [2023] ZANCT 24 (28 July 2023)
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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case number: NCT/254908/2023/75(1)(b)
In the matter between:
LUCAS NARE RAMANGWA APPLICANT
and
PRO-QUICK (PTY) LTD 1ST RESPONDENT
WESBANK LIMITED 2ND RESPONDENT
Coram:
Adv C Sassman - Presiding Tribunal member
Mr S Hockey - Tribunal member
Mr C Ntsoane - Tribunal member
Date of Hearing - 27 July 2023
Date of Judgment - 28 July 2023
JUDGMENT AND REASONS
THE PARTIES
1. The applicant is Lucas Nare Ramangwa (the applicant). 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 was represented by Advocate Lloyd Matseembi.
2. The first respondent is Pro-Quick (Pty) Ltd (the first respondent). The first respondent is a supplier, as defined in section 1 of the CPA.
3. The second respondent is WesBank Limited (the second respondent). The second respondent is a credit provider as defined in section 1 of the National Credit Act[1].
4. Collectively, the first and second respondents will be referred to as the respondents.
5. The respondents did not oppose this application and did not appear at the hearing.
TERMINOLOGY
6. A reference to a section in this judgment refers to a section of the CPA.
7. A reference to a rule in this judgment refers to the Rules of the Tribunal[2] (the rules).
APPLICATION TYPE
8. This is an application in terms of section 75(1)(b). In this application, the applicant, with leave granted by the Tribunal, seeks redress against the respondents.
9. The applicant alleges that the first respondent contravened the CPA by selling him a vehicle which had previously been involved in a major collision and failed to disclose it to him. He further alleges that the second respondent is a party to the contravention as it financed the transaction between himself and the first respondent.
PROCEEDING ON A DEFAULT BASIS
10. On 17 May 2023, the Tribunal granted the applicant leave to refer the matter. On 8 June 2023, the Registrar issued the ruling. In terms of Rule 13(2), the respondents had 15 business days to serve an answering affidavit and file it with the Registrar. However, they failed to do so.
11. The applicant did not file an application for a default order in terms of Rule 25(2).
12. Due to the pleadings being closed, the Registrar issued a notice of set down to all parties on 29 June 2023, setting the matter down for 27 July 2023.
13. Rule 13(5) provides that any fact or allegation made by the applicant, which is not explicitly denied or admitted by the respondents, will be deemed to have been admitted by the respondents.
14. Therefore, in the absence of any answering affidavits before the Tribunal, the applicant’s application and all of the allegations contained therein are deemed to be admitted by the respondents.
BACKGROUND
15. On 14 October 2021, the applicant concluded a credit agreement with WesBank to purchase a motor vehicle from the first respondent. The vehicle, a 2015 model Isuzu KB300 with registration number HN [....]P, was purchased for R342 900.00. The credit agreement provided for accessories and other charges amounting to an additional R45 965.01. Within two months of the purchase, the applicant experienced problems with the vehicle and informed the first respondent. The first respondent advised the applicant to bring the vehicle in for repairs. The applicant tendered the vehicle for repairs, but the problems persisted. On 2 December 2021, the applicant took the vehicle to Latac Motor Service Centre for repairs. He paid R2 900.00 for the repairs and requested a refund from the first respondent, who refused to refund the applicant.
16. On 6 April 2022, the applicant complained to WesBank and was advised to refer the matter to the Motor Industry Ombudsman of South Africa (MIOSA). On 12 May 2022, the applicant referred his complaint to MIOSA and alleged that the vehicle showed evidence of previous accident damage, which was not disclosed to him at the time of purchase. On 17 May 2022, MIOSA indicated that it was not mandated to solicit refunds or financial compensation. Accordingly, it referred the applicant to the National Consumer Commission (the NCC) for further redress. On 1 September 2022, the applicant lodged a complaint with the NCC. On 14 November 2022, the NCC issued a notice of non-referral indicating that the alleged facts, if true, do not constitute a remedy under the CPA. The matter is now before the Tribunal for adjudication.
THE APPLICANT’S SUBMISSIONS
17. At the hearing, the applicant submitted that the first respondent sold the vehicle to him while being aware that it had previously been involved in a major collision and failed to disclose this material fact. The applicant referred the Tribunal to two independent reports which confirm the condition and indicate that the vehicle shows signs of accident damage which has been poorly repaired. One report is contained in the case record,[3] and the second was emailed to the Registrar a day before the hearing. The applicant was under the impression that the vehicle was in a good condition when he bought it, but it presented with several problems soon after he took possession of it. The fact that the vehicle has a history of being accident damaged has considerably reduced the value of the vehicle causing financial prejudice to the applicant. Both respondents failed to correct the misapprehension of the applicant that the vehicle was of good quality. Although different versions of the relief sought by the applicant appear in his application and heads of argument, at the hearing he confirmed that he seeks an order that the first respondent has contravened the CPA and that its conduct be declared prohibited conduct. He further seeks an order entitling him to approach the Chairperson of the Tribunal to obtain a certificate in terms of section 115(2)(b) of the CPA to prove and claim his damages in a civil court certifying that the conduct of the first respondent constitutes prohibited conduct for purposes of him instituting proceedings in a civil court.
APPLICABLE SECTIONS OF THE ACT
18. Section 75(1)(b) states that if the NCC issues a notice of non-referral in response to a complaint, other than on grounds contemplated in section 116, the complainant concerned may refer the matter directly to the Tribunal, with leave of the Tribunal.
19. Section 55(2)(b) states that every consumer has the right to receive goods of good quality, in good working order and free of defects.
20. Section 25(1) states that a person who supplies any goods that have been reconditioned, rebuilt or remade must apply a conspicuous notice to those goods indicating it to be so.
21. Section 41(1)(a) states that in marketing goods, a supplier must not, by words or by conduct, directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer.
22. Section 41(3)(b)(ii) and (iii) states that it is a false, misleading or deceptive representation on the part of a supplier when it fails to correct an apparent misapprehension on the part of a consumer to the effect that any goods are of a particular standard, quality, grade, style or model or that they are new, unused, reconditioned or reclaimed when they are not.
CONSIDERATION OF THE EVIDENCE
23. Since the matter was heard on an unopposed basis, it is not clear what the respondents’ versions are regarding the alleged defects of the vehicle and the allegations that the accident damage existed at the time the sale was concluded. The respondents, by failing to file answering affidavits and appear at the hearing, have lost the opportunity to put forward a proper defence against the allegations made by the applicant and have placed themselves in the hands of the Tribunal.
24. The two accident reports provided by the applicant differ significantly and do not confirm whether the damage to the vehicle occurred before or after the sale of the vehicle. However, in terms of Rule 13(5) and in the absence of any other version of events, the Tribunal accepts the version as put forward by the applicant, which is that the vehicle was involved in a major collision before he purchased it, and that this material fact was not disclosed to him by the respondents.
25. By failing to disclose the true condition and history of the vehicle to the applicant, and failing to correct the applicant’s misapprehension that he was purchasing a vehicle which was not accident damaged, the first respondent has contravened sections 25(1), 41(1)(a), 41(3)(b)(ii) and 41(3)(b)(iii). It must be noted that these sections specifically place a duty on a supplier and not a credit provider who finances the transaction. For this reason, no order can be made against the second respondent who acted as a credit provider to the transaction.
26. The applicant purchased the vehicle for R342 900.00 on 14 October 2021. The credit agreement provided for accessories and other charges amounting to an additional R45 965.00. The accident report in the case record generated on 20 June 2022 reflects the vehicle’s trade value as R230 900.00. This is a considerable decrease in value over approximately eight months, which can be attributed to the vehicle now being valued as an accident-damaged vehicle. The applicant has therefore been significantly financially prejudiced as a result of the first respondent’s conduct.
CONCLUSION
27. The Tribunal accepts the version of the applicant that the vehicle he purchased from the first respondent was involved in a major collision before it was sold to him, and that this material fact was not disclosed to him. In failing to inform the applicant of the vehicle’s condition and history, the first respondent contravened the CPA and engaged in prohibited conduct. The prohibited conduct has caused the applicant financial prejudice, and he is entitled to compensation.
ORDER
28. Accordingly, the Tribunal makes the following order:
28.1 The first respondent has contravened sections 25(1), 41(1)(a), 41(3)(b)(ii) and 41(3)(b)(iii);
28.2 The first respondent’s contravention of sections 25(1), 41(1)(a), 41(3)(b)(ii) and 41(3)(b)(iii) is declared prohibited conduct;
28.3 The applicant may approach the Chairperson of the Tribunal for a certificate in terms of section 115(2)(b) to claim damages in a civil court;
28.4 No order is made in respect of the second respondent; and
28.5 There is no cost order.
Adv C Sassman
Presiding Tribunal member
Tribunal members Mr S Hockey and Mr C Ntsoane concur.
[1] 34 of 2005.
[2] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, 2007 (Government Gazette No. 30225).
[3] See pages 101 – 103 of the case record.