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

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

The Tribunal found that the Applicant failed to discharge the onus of proof that the Respondent did not change the brake fluid or that such failure caused damage to the ABS pump and module. The Applicant's evidence was based on inference from the colour and contamination of the brake fluid, which the Respondent credibly explained as resulting from the age and condition of the vehicle. The Respondent's witness provided a coherent account of the standard procedure for brake fluid replacement and explained that the diagnostic report indicated an electrical fault not attributable to brake fluid. The Applicant admitted he was not an expert and relied on an ambiguous manufacturer email. The...

Citation
[2018] ZANCT 138
Parties
Applicant: Paveshn Chetty; Respondent: Bidvest McCarthy Volkswagen Umhlanga (Pty) Ltd
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
29 October 2018
Case Number
NCT/105595/2018/75(1)(b)
Procedural Posture
Leave to Appeal / Merits Hearing After Leave to Refer Granted
Outcome
Application refused; no order as to costs.
Judges
A Potwana, H Devraj, J Simpson
Legal Topics
Consumer Protection Act, Onus of Proof, Defective Services, Balance of Probabilities
Commercial and Corporate Consumer Protection Act Onus of Proof Defective Services Balance of Probabilities

Case Brief

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Parties

Paveshn Chetty

Applicant

Bidvest McCarthy Volkswagen Umhlanga (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Merits Hearing After Leave to Refer Granted

Legal Issues

  1. 1 Whether the Respondent failed to change the brake fluid in the Applicant's vehicle as contracted.
  2. 2 Whether the alleged failure caused damage to the ABS pump and module.
  3. 3 Whether the Applicant discharged the onus of proof on a balance of probabilities.

Ratio Decidendi

The Tribunal found that the Applicant failed to discharge the onus of proof that the Respondent did not change the brake fluid or that such failure caused damage to the ABS pump and module. The Applicant's evidence was based on inference from the colour and contamination of the brake fluid, which the Respondent credibly explained as resulting from the age and condition of the vehicle. The Respondent's witness provided a coherent account of the standard procedure for brake fluid replacement and explained that the diagnostic report indicated an electrical fault not attributable to brake fluid. The Applicant admitted he was not an expert and relied on an ambiguous manufacturer email. The...

Court Disposition

Application refused; no order as to costs.

Orders

  • The application is refused.
  • There is no order as to costs.