Defective Gazebo (201504-0027) [2015] ZACGSO 5 (27 July 2015)

Defective Gazebo (201504-0027) [2015] ZACGSO 5 (27 July 2015)

The Ombud found that the evidence did not establish how the damage to the Gazebo occurred or whether it was altered contrary to instructions. The supplier's report indicated the damage was caused by an act of nature, and the applicant was not present when the damage occurred. The Consumer Protection Act places responsibility on the consumer for goods after they leave the supplier's control, and the supplier cannot be held liable for damage occurring in the consumer's possession unless a manufacturing defect is proven. On a balance of probabilities, the Ombud could not conclude that the supplier was at fault and therefore dismissed the complaint.

Citation
[2015] ZACGSO 5
Parties
Applicant: Complainant; Respondent: House & Home
Court
Consumer Goods and Services Ombud
Jurisdiction
South Africa
Judgment Date
27 July 2015
Case Number
201504-0027
Procedural Posture
Consumer Complaint / Assessment
Outcome
Complaint dismissed due to insufficient evidence and inability to determine liability on a balance of probabilities.
Legal Topics
Consumer Protection Act, Implied Warranty, Burden of Proof, Act of God, Goods in Possession, Dismissal on Probabilities
Commercial and Corporate Consumer Protection Act Implied Warranty Burden of Proof Act of God Goods in Possession Dismissal on Probabilities

Case Brief

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Parties

Complainant

Applicant

House & Home

Respondent

Procedural Posture

Consumer Complaint / Assessment

Legal Issues

  1. 1 Whether the supplier is liable for damage to the Gazebo discovered by the consumer after purchase.
  2. 2 Whether the damage was caused by a manufacturing defect or an act of nature.
  3. 3 Whether the supplier's refusal to assist is justified under the Consumer Protection Act.

Ratio Decidendi

The Ombud found that the evidence did not establish how the damage to the Gazebo occurred or whether it was altered contrary to instructions. The supplier's report indicated the damage was caused by an act of nature, and the applicant was not present when the damage occurred. The Consumer Protection Act places responsibility on the consumer for goods after they leave the supplier's control, and the supplier cannot be held liable for damage occurring in the consumer's possession unless a manufacturing defect is proven. On a balance of probabilities, the Ombud could not conclude that the supplier was at fault and therefore dismissed the complaint.

Court Disposition

Complaint dismissed due to insufficient evidence and inability to determine liability on a balance of probabilities.

Orders

  • The file is closed and the Ombud declines to make a recommendation in favour of the complainant.
  • The complainant may refer the matter to the National Consumer Commission in accordance with section 71 of the Consumer Protection Act.