Byleveld v Execor Twelve (Pty) Ltd t/a Motor City and Another (NCT/10686/2013/75(1)) [2014] ZANCT 2 (24 February 2014)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/10686/2013/75(1)

In the matter between:

PETRO BYLEVELD...................................................................................................APPLICANT

and

EXECOR TWELVE (PTY) LTD t/a MOTOR CITY.................................... FIRST RESPONDENT

NATIONAL CONSUMER COMMISSION............................................SECOND RESPONDENT

Coram:

Ms P. Beck – Presiding member

Mr F. Sibanda – Member

Adv. N. Sephoti – Member

Date of Hearing – 9 December 2013

JUDGMENT AND REASONS

APPLICANT

1. The Applicant in this matter is Petro Byleveld, an adult female residing at Lynnwood Ridge, Pretoria (hereinafter referred to as “the Applicant”).

2. The Applicant deposed to her own founding affidavit.

3. At the hearing of 9 December 2013, the Applicant represented herself.

RESPONDENTS

4. The Applicant cited two Respondents in her application.

5. The First Respondent is Execor Twelve (Pty) Ltd, a company duly registered in terms of the Company Laws of the Republic of South

Africa (herein referred to as “the First Respondent”).

6. The First Respondent did not oppose the application. At the hearing, Mr Louis Van der Merwe represented the First Respondent.

7. The Second Respondent is the National Consumer Commission, an organ of state within the public administration, but as an institution outside the public service, established in terms of Section 85 of the Consumer Protection Act 68 of 2008 (“the CPA” or “the Act”) (“the Second Respondent”).

8. The Second Respondent did not oppose the application and there was no appearance by or on behalf of the Second Respondent.

APPLICATION TYPE

9. This is a referral in terms of Section 75 of the CPA, in a matter where the Second Respondent issued a notice of non-referral in response to a complaint, which matter may be referred to the Tribunal, with the leave of the Tribunal. Even though the Applicant indicated on the application form (Form TI.75(1)(b)), that this matter is brought in terms of section 75(2) the parties confirmed that this matter was not brought before a consumer court and is accordingly brought in terms of section 75(1)(b).

BACKGROUND

10. The Applicant purchased a Toyota Prado on 10 June 2011 from the First Respondent.

11. The Applicant informed the First Respondent’s representative (“Mr van der Merwe”) that she wanted to use the vehicle for 4x4 tours. The first of such tours were scheduled for 30 June 2011.

12. Subsequent to purchasing the vehicle the Applicant had the vehicle assessed by Dastek, Pretoria. Dastek pointed out a few faults and the Applicant also made a list of problems with the vehicle which she identified at that time.

13. Dastek pointed out the following faults to the vehicle (the list is annexed to the Applicant’s affidavit marked “ Page 7” and “Addendum F” to “Annexure A – Details of Complaint”):

13.1 Wheel alignment

13.2 ABS warning light was on all the time

13.3 Front brakes and drums

13.4

Fan belts

13.5

Steering rack leaks

13.6

Cam belt had to be replaced with the next service

14. The list compiled by the Applicant included the following faults (the list is annexed to the Applicant’s affidavit marked “Page 6” and “Addendum F” to “Annexure A – Details of Complaint”):

14.1 No spare key

14.2 Electrical problem that blew the fuses and caused the vehicle not to start

14.3 he driver’s seat had difficulty adjusting

14.4 The “drive” globe on the instrument panel was out of order

14.5 The dipstick tube at the gearbox was leaking

14.6 The Air Cleaner Housing was loose due to a broken portion where it fix to the vehicle body

14.7 The choke cable’s rubber was broken and had open wires

14.8 The spare wheel had a huge hole in it and could not be fixed

15. The list was handed to Mr van der Merwe, of the First Respondent, who assured the Applicant that he would go through the list and have the faults repaired at the First Respondent’s expense. The Applicant explained to Mr van der Merwe that she would need the vehicle back to fit a dual battery system and roof rack and to have two new front tyres fitted before the trip on 30 June 2011.

16. Mr van der Merwe informed the Applicant that “he will personally come and fetch me in Mozambique, if there is any problem and I have a six month guarantee on the vehicle for any repairs or latent faults”[1].

17. The First Respondent kept the vehicle for two weeks to attend to the repairs. The First Respondent sent the vehicle to “Toyota

Barlow” to repair the ABS wiring (invoice attached to Attachment “A” – Details of Complaint”) and

ordered a spare key (“invoice attached to Attachment “A” – Details of Complaint”). The vehicle was also sent to “Moto-Mec” to conduct certain of the repairs. Mr. van der Merwe attributed the delay to the fact that a lot of repairs had to be conducted.

18. The Applicant only received the vehicle from the First Respondent on 27 June 2011. The vehicle was then taken directly to LA Sports for two days in order to have the dual battery system and roof rack fitted and from there to Supa Quick to have the tyres fitted.

19. While on holiday in Mozambique the Applicant realised that the vehicle did not brake properly. She needed to pump the brake and then it “shuddered under foot”. The vehicle behaved erratic on the dirt road while in 4H and did not feel like it was actually in 4x4. The gear also did not want to come out of 4H and the vehicle felt unsafe when driving quicker than 40km/h on the dirt road (which road was in a good condition).

20. Upon her return and after receiving advice from her brother-in-law, the Applicant took the vehicle to N1 4x4 on 20 July 2011. N1 4x4 assessed the vehicle and informed the Applicant of the following faults:

20.1 The vehicle’s brakes did not work due to the fact that the incorrect size parts were fitted. The brake disc was cracked;

20.2 The ABS system did not work and certain parts were simply not there;

20.3 The diff ratio between front and back differed causing the vehicle to not be able to come out of 4H mode;

20.4 The air cleaner housing and choke cable was not replaced as promised;

20.5 The suspension sagged, was in poor condition and had to be replaced urgently;

20.6 The vehicle was not serviced recently as stated;

20.7 The vehicle was actually two different bodies, welded together, confirming that the vehicle was in a serious accident. The body is not set squarely on the chassis and is about 5cm off centre. The welding done is poor workmanship and is starting to crack. The vehicle was put together very badly and that is why there is dust in the vehicle when driving on a dirt road.

21. The Applicant did not have any repairs affected at N1 4x4.

22. The Applicant, on 21 July 2011, sent an email to Mr. van der Merwe together with the quotation that she had received from N1 4x4. She also contacted him via telephone. The total amount quoted to conduct the repairs were R 23 692. 49.(Twenty Three Thousand Six Hundred and Ninety Two Rand and Forty Nine Cents) A follow up email was sent on 29 July 2011, titled “foute op Prado.docx;

BLY007.pdf; N1 4x4 Invoice…”, directed to Louis, of the First Respondent;

23. Mr. van der Merwe requested the Applicant to send him the details once all of the repairs were done and that he would then have a look at it. The Applicant had the repairs conducted, paid an amount of R 23 692.49 (Twenty Three Thousand Six Hundred and Ninety Two Rand and Forty Nine Cents)and then requested the First Respondent to repay her the amount of R 11 038.49.(Eleven Thousand Thirty Eight Rand and Forty Nine Cents) The amount of R 11 038.49 (Eleven Thousand Thirty Eight Rand and Forty Nine Cents) was made up out of the replacement of the air cleaner housing and choke cable as promised by the First Respondent, consumables, oil etc, repair of the ABS system and brakes and the repair of the diff (the diff had to be replaced but N1 4x4 managed to find a second hand diff which was much less costly).

24. The Applicant replaced the suspension with a new Australian one and did not include this cost in the amount demanded from the First

Respondent. The Applicant is however of the view that the First Respondent must reimburse her for at least part of the costs incurred. She also did not require the First Respondent to reimburse her for the cost of a spare wheel.

25. During the weekend of 12 August 2011, the Applicant had to go on a rescue mission to Mozambique. One of the vehicle’s “repaired”

fan belts broke and took of the rest of the belts. According to the mechanic in Mozambique the parts that were placed in the vehicle were of inferior quality and were not the correct parts to be used on the vehicle. The Applicant was warned never to use pirate parts. The Applicant was not aware that the dealership had put such an inferior part in the vehicle. The Applicant had to pay a further 520 meticais plus labour charges to have the vehicle repaired.

26. The First Respondent is refusing to pay for anything, saying that it has spent enough money on the vehicle. The First Respondent did eventually send the Applicant some invoices of the parts that he replaced, some of these invoices are dated February, March and April 2011, months before the Applicant bought or even knew of the vehicle. The invoices also do not show that the cam belt was replaced as the First Respondent made the Applicant believe.

27. Applicant approached the Gauteng Provincial Consumer Affairs Offices to assist with resolving the matter. Applicant was then advised to contact the Offices of the Second Respondent and on 5 August 2011, Applicant proceeded to inform the First Respondent of this next step. It needs to be mentioned that this was on the same day that Applicant received an email response from the First Respondent indicating that the First Respondent was not going to reimburse Applicant for expenses incurred as the First Respondent claimed that the First Respondent had acted reasonably in addressing the issues raised by the Applicant.

28. As a result the Applicant lodged a complaint with the Second Respondent on 19 August 2011. A copy of the complaint form is annexed to the application. The form used is however the Complaint Form utilised by the Office of Consumer Protection. The Applicant has since, by way of email to the Tribunal, clarified that the complaint was indeed lodged with the Second Respondent and that the Second Respondent, at that time, utilised this form for complaints to be lodged with it. The Applicant in fact received this form from the Second Respondent and was advised by the Second Respondent to utilise this form to lodge a complaint with it.

29. Subsequent to the complaint being lodged with the Second Respondent, a conciliation hearing was scheduled to take place on 08 August 2012. It appears from the record that this conciliation meeting was postponed and no details relating to further conciliation is

provided.

30. On 16 January 2013 the Second Respondent issued a “Lack of Jurisdiction Notification” to the Applicant. The Applicant received this notification on 14 May 2013. A copy of the notice is annexed to the application and marked Addendum “B” thereto. In such notice the Commission indicated to the Applicant that:

“The National Consumer Commission has assessed your complaint and has determined that the transaction between yourself and the supplier was concluded or entered into before the 1st of April 2011.

In terms of Schedule 2, Item 3 of the Consumer Protection Act, the Act does not apply to:

(a) The marketing of any goods or services before the general effective date.

(b) Any transaction concluded, or agreement entered into, before the general effective date being 01 April 2011.

The National Consumer Commission has jurisdiction to deal with complaints in terms of the Consumer Protection Act.

31. The Applicant then proceeded to make this referral to the Tribunal on 4 September 2013. The application for leave to refer in terms of Section 75(1)(b) was filed out of the allowed 20 day period for filing of such an application. The Notice of Lack of Jurisdiction was issued on 16 January 2013 and received by the Applicant on 14 May 2013. The Applicant lodged this application on 04 September 2013. The Applicant did however apply for condonation for the late filing, which the Tribunal will deal with in the following paragraphs.

Condonation

32. The Applicant filed an application for condonation of the late filing of the application on 11 October 2013. The application for condonation was brought in the form of Form T.I r34 and is accompanied by an affidavit setting out the reasons for non-compliance and supporting documentation.

33. The Applicant submits that the application in terms of Section 75 was not lodged within 20 business days after the date of issuance of the notice of non-referral by the Second Respondent. The notice is dated 16 January 2013 but was only issued to the Applicant on 14 May 2013 as per the email received by the Applicant from the Second Respondent on such date (a copy of which is annexed to the condonation application).

34. The Applicant states that, at the time of receiving the notice, she was not even aware of the existence of the Tribunal. She proceeded to send emails to the Second Respondent on 28 May 2013, 31 May 2013, 03 July 2013 and 05 July 2013, explaining that they were incorrect in finding that the transaction occurred prior to the effective date of the CPA. She also made several phone calls to the Second Respondent over the next few months in an attempt to resolve the matter. The Applicant submits that the Second Respondent’s phone was just ringing and that her calls were only answered twice. She never received any feedback from the Second Respondent.

35. The Applicant conducted a search on the internet to find alternative contact numbers and email addresses for the Second Respondent and came across the Tribunal’s website. The Applicant then proceeded to make the referral to the Tribunal.

36. The Applicant requested the Tribunal to grant an order that the non-compliance as described be condoned.

37. The Tribunal considered the submissions of the Applicant as well as various factors such as the degree of lateness of the Application,

the reasons therefore, the prospects of success of the Applicant should the matter be heard and the importance of the case. As seen in Melane v Santam Insurance Company[2], these factors need to be considered in conjunction or as a conspectus and not in isolation. Based on the submissions, relevant case law and on the papers indicating the Applicant’s attempts to get a response from the Second Respondent, the application for condonation, in the interests of fairness and justice, is granted.

ANALYSIS OF THE LAW AND FACTS

38. Section 75(1)(b) of the Act stipulates that the Applicant may, in the event of the issuing of a notice of non-referral by the NCC, refer the matter directly to the Tribunal, with the leave of the Tribunal.

39. The Tribunal confirmed in the matter of Coertze and Burger v Young[3] with reference to a previous decision of this Tribunal in the matter of MV Chauke v Standard Bank et al [4], that the rationale underpinning the approach taken in that matter must be applied. The panel quoted from the decision of Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[5] and held the following:

“11.4 When determining whether the Applicant should be granted leave to refer the matter to the Tribunal, the Tribunal considered the requirements for the granting of “leave”. A similar application can be found in the High Court practice, where an applicant applies for leave to appeal a judgment. It was held in Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[6] that “in applications for leave to appeal properly brought before the appropriate court in terms of the old sec 20, read with sec 21 as it then was, the only relevant criteria were whether the applicant had 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”[7] This was so irrespective of whether the appeal lay to the full court or to the Appellate Division.

11.5 The Tribunal will therefore, when considering whether to grant the Applicant leave to refer or not, use the same test as applied in the High Court for applications for “leave” and will therefore consider:

11.5.1 The Applicant’s reasonable prospects of success with the referral;

11.5.2 Whether the matter is of substantial importance to the Applicant or Respondents.”

40. In the light of the above, the Tribunal is of the view that the basis upon which leave should be granted has to be measured against the -

40.1. Reasonable prospects of success; and

40.2. Substantial importance of the matter.

41. The Tribunal therefore considered the issue of granting or refusing the Applicant leave to refer the matter to it, prior to considering the main application before it.

42. The Applicant’s prospects of success with the referral depend on whether the Tribunal is of the view that the Applicant is entitled to relief in terms of the Act. Bearing in mind the value of the repair costs incurred by the Applicant, it is submitted that the matter is evidently of substantial importance to the Applicant.

43. Therefore in the view of the Tribunal the Applicant has made a case to be considered by the Tribunal and the relief sought is within the powers of the Tribunal. Leave to refer the matter to the Tribunal is accordingly granted.

44. In terms of section 73(1) of the CPA the Commission has the following options available to it after it has concluded an investigation into a matter:

(a) Issue a notice of non-referral in the prescribed form;

(b) Refer the matter to the National Prosecuting Authority;

(c) Refer the matter to the equality court;

(d) Propose a draft consent order;

(e) Make a referral in accordance with subsection (2);

(f) Issue a compliance notice in terms of section 100.

45. The prescribed form for a notice of non-referral appears in Annexure F - Regulation 36 of the Regulations[8] to the Act. It requires certain information to be set out in the notice such as:

(1) A heading: “Form – section 72(1)(a) Notice of non-referral”

(2) Date

(3) Name of the Complainant

(4) ID/Registration Number

(5) Postal Address

(6) Fax Number

(7) E-mail Address

(8) A paragraph setting out the details of the complaint and the specific wording “I regret to inform you that the Commission will not refer your complaint, as the complaint-…“ either appears to be frivolous or vexatious, does not allege facts which would constitute a remedy under the Act or is prevented to be referred due to the provisions of section 116.

(9) Signed by the Commissioner or Deputy Commissioner.

46. In the present matter the Commission issued a document entitled “Lack of Jurisdiction Notification”.

47. The notice issued to the Complainant, which is attached to the application marked Addendum “B” thereto, contains the

following information:

(1) A heading: “Lack of jurisdiction notification”

(2) Date: “16 January 2013”

(3) Name of the Complainant: “Petro Byleveld”

(4) E-mail Address: “accounts@mindmuzik.com”

48. It does not contain the following information that is required in Annexure F – Regulation 36:

(1) ID/Registration Number

(2) Postal Address

(3) Fax Number

49. It is said that the court will invariably regard the substance rather than the form of things[9], so that in construing a statute, as was held in the matter of Dadoo Ltd v Krugersdorp Municipality[10] “the words of the lawgiver must be read in the light of his intention to be gathered from the enactment as a whole and from a consideration of the mischief dealt with…That interpretation should be adopted…which is most calculated to attain the object and most in accordance with the mind of the lawgiver; not a hide-bound interpretation, nor one which circumvents the aim of the law so as to allow that which the law does not wish to be done, though it has not expressly prohibited it”.

50. It was also held in University of Cape Town v Cape Bar Council[11] that the court had to examine all the contextual factors in ascertaining the intention of the legislature, irrespective of whether or not the words of the legislation were clear and unambiguous.

51. When the provisions of the CPA specifically are considered, the following gives an indication as to how the Act should be interpreted:

51.1 Section 4(2)(a) provides that the Tribunal should, in any matter brought before it, develop the common law as necessary to improve the realisation and enjoyment of consumer rights ;

51.2 Section 4(2)(b) provides that the Tribunal must promote the spirit and purposes of the Act and make appropriate orders to give practical effect to consumer’s right of access to redress, including orders provided for in the Act and innovative orders that better advances, protects, promotes and assures the realisation by consumers of their rights in terms of the Act.

52. Furthermore, Section 39(2) of the Constitution provides that “When interpreting any legislation, and when developing the common law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

53. It would appear that, even though the correct format i.e. the correct form has not been used by the Commission, the notice still, in substance, appears to contain most of the information that must be contained in a notice of non-referral. The Tribunal, therefore, considered the substance of the notice (and intent thereof) as opposed to the form for the purposes of determining this matter and holds that the notice will suffice for purposes of section 75: Makkink v Accordian Investment[12] .

54. Section 75(4)(b) of the CPA provides that the Tribunal may “may make any applicable order contemplated in this Act or in section 150 or 151 of the National Credit Act, read with the changes required by the context”.

55. The First Respondent issued the Lack of Jurisdiction Notification on the basis that the CPA is not applicable to the present matter as the transaction between the Applicant and First Respondent was concluded or entered into before the 1st of April 2011.

56. It is however not disputed that the transaction was concluded on 10 June 2011 and that the entire Act is applicable to the transaction

concluded between the Applicant and the First Respondent.

57. The First Respondent was the retailer and/or supplier of the vehicle and also supplied certain of the services that are complained about.

58. Section 56(1) provides that “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 or 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 retailer, as the case may be.”

59. It is evident from the above that, if we conclude that the Act is applicable to the transaction, that the First Respondent, as retailer

and/or supplier and service provider in respect of the vehicle, warranted that the goods comply with the standards set out.

60. Section 55 provides as follows:

“55 Consumer’s rights to safe, good quality goods

(1) 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;

(b) are of good quality, in good working order and free from 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 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 purpose 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; and

(b) 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 another 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.”

61. It is submitted that, from the case made out by the Applicant on the papers, the vehicle did not meet the required standards as set out in Section 55(2). It was not of good quality, not in good working order, nor was it free of any defects (section 55(2)(b)) and in the state in which it was sold it was not going to be usable and durable for a reasonable period of time (section 55(2)(c)).

62. It is therefore submitted that a case has been made out that the Applicant is entitled to the relief set out in section 56(2). Section

56(2) provides as follows:

“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 suppliers 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 purchase price paid by the consumer, for the goods.”

63. Applicant made every effort, upon discovering the vehicle’s defects, to bring these to the attention of the First Respondent and afford him an opportunity to correct them. It should be mentioned that the Applicant does not seek the replacement of the vehicle or a refund of the purchase price, but a refund of the repair costs, for costs she incurred after having taken delivery of the vehicle from the First Respondent. Even with the repairs effected, Applicant still was willing to forego some claims despite the fact that First Respondent was evidently responsible for same.

64. The Tribunal further considered the provisions of Section 56(3) which provides that :

“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.”

65. It is submitted that the repairs conducted by the First Respondent, which repairs did not remedy the defects on the vehicle, meet the requirements of section 56(3). The First Respondent gave the Applicant the “permission” to proceed with the repairs

and agreed to refund the Applicant once the repairs were effected and it was not disputed that he reneged on this agreement as soon as he was asked to pay for the repairs.

66. Section 54(1) of the Act deals with a consumer’s right to demand quality service. In terms of such section:

“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 a 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; and

(d) The returns of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services,

Having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services.”

67. The receipts submitted by the First Respondent shows repairs done and some parts having been purchased months before the vehicle was bought by the Applicant (February and March 2011). There is little or no evidence of repairs effected after the Applicant purchased the vehicle. .

68. Section 54(2) of the CPA provides as follows:

(2) If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either-

(a) Remedy any defect in the quality of the services performed or goods supplied; or

(b) Refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.

‘supply’ when used a verb-

(a)…

(b) in relation to services, means to sell services, or to perform or cause them to be performed or provided, or to grant access to any premises, event, activity or facility in the ordinary course of business for consideration”

69. It would appear from the submissions made by the Applicant that the First Respondent affected some of the repairs itself and caused the balance of the services required from the Dastek list and list issued by the Applicant to be performed by other service providers.

70. It should also be mentioned that the Applicant has been conciliatory in this matter.

71. The report by N1 4x4 indicated that the vehicle has serious structural faults, inter alia that this is two vehicles welded together and the body is still not set right which resulted in some of the problems being experienced.

The First Respondent did not respond to this allegation which is viewed by the Tribunal in a dim light.

72. The basis upon which the Tribunal may grant the relief requested by the Applicant must be apparent from a contravention of the CPA. From the above, the Applicants have clearly set out a basis for a remedy under the CPA.

73. The Applicant is accordingly entitled to either have the defect in the quality of the services performed or goods supplied remedied or be refunded a reasonable portion of the price paid for the services performed, having regard to the extent of the failure in terms of section 54(2) of the CPA.

74. Section 54(2) of the CPA provides that if a supplier fails to perform a service to the standards contemplated in subsection (1),

the consumer may require the supplier to either—

“(a) remedy any defect in the quality of the services performed or goods supplied; or

(b) refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.”

75. Section150(i) of the National Credit Act, 34 of 2005 (“the NCA”), read with section 75(4)(b) of the CPA, empower the

Tribunal to make any appropriate order required to give effect to a right, as contemplated in the CPA.

76. In the matter of Coertze and Burger v Young[13] the Tribunal stated that a ‘refund’ is defined as returning money to somebody, usually because he or she paid too much or did not receive what was paid for, and “pay back (money), typically to a customer who is not satisfied with goods or services bought.

77. It was also confirmed by the Tribunal in the Coertze-matter that the Tribunal may in terms of Section 75(4)(b) of the Act make any applicable order contemplated in the CPA or in section 150 or 151 of the NCA. It is further submitted that in terms of Section 150(i) of the NCA the Tribunal may make any other appropriate order required to give effect to a right, as contemplated in the Act.

78. Section 54(1) of the CPA stipulates that when a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to the performance of the services in a manner and quality that persons are generally entitled to expect.

79. Subsection (2) provides that if a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either—

a. remedy any defect in the quality of the services performed or goods supplied; or

b. refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.

80. In the light of the above, the Applicant is entitled to choose whether they require to be refunded or whether they require for the defect in quality of service to be remedied. The Applicant opted for a refund.

81. The Respondent is accordingly, in the light of the aforegoing, obliged to refund the Applicant a reasonable portion of the price

paid for the services.

82. FINDINGS

The Tribunal finds that:

82.1. The Applicant has made out a case that the Respondent is a service provider in terms of CPA.

82.2. The Respondent has contravened section 54 of the CPA and consequently engaged in prohibited conduct as envisaged in section 1 of the CPA;

82.3. The Applicant has established a basis upon which the Applicant is entitled to a remedy under the CPA.

82.4. Accordingly, the Applicant is entitled to a refund of R. 33 000, 00 (thirty three thousand rand) based on the provisions of section 54(2)(b) of the CPA read with sections 54(1) and section 75(4)(b) of the CPA and section 150(i) of the NCA.

RULING

83. The Tribunal accordingly makes the following order –

83.1 The Application for condonation is granted.

83.2 The Application for leave to refer is granted in par 43 above. The Tribunal further holds the First Respondent liable for the defective

goods and repairs offered to the Applicant; the standard of the goods did not meet the standards required by Section 55 and 56 of the CPA and the services rendered did not comply with the provisions of Section 54 of the CPA.

83.3 The Tribunal grants the Applicant a refund in the amount of R 33 000-00 (Thirty Three Thousand Rand) made up of R23 692.49 (Twenty Three Thousand Six Hundred and Ninety Two Rand and Forty Nine Cents) being the cost of the repairs to the vehicle plus the replacement cost of the diff, the fan belts and new tyres. These make up the total amount of repairs necessary to render the vehicle usable by the Applicant.

83.4 The Respondent is ordered to refund the Applicant the amount of R33 000-00 (Thirty Three Thousand Rand) by 31 March 2014.

{signed}

Adv Neo Sephoti

Tribunal member

Ms P. Beck (Presiding Member) and Mr F. Sibanda (Tribunal member) concurring

[1] Extract from Attachment A to the application marked “Details of complaint.”

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

[3] NCT/7142/2012/73(3)&75(1)(b).

[4] NCT/4658/2012/141(1)(P).

[5] 1986 (2) SA 555 (A) at par 15.

[6] 1986 (2) SA 555 (A).

[7] Odendaal v Loggerenberg en Andere NNO (2) 1961 (1) SA 724 (0) at p 727 C; Attorney-General, Transvaal v Nokwe and Others 1962 (3) SA 803 (T), at p 807.

[8] Regulations re: National Consumer Tribunal published under GN 489 in GG 34348 OF 03 June 2011, as amended (hereinafter “the Regulations”).

[9] Dictionary of Legal Words and Phrases, Volume 2, D – I, F-47 “Form”

[10] 1920 AD 547

[11] 1986 (4) SA 903 (A)

[12] NCT 8473/2013/75

[13] NCT/7142/2012/73(3)&75(1)(b).