Khumalo v RZT Zelpy 4300 (Pty) Ltd t/a Automax George and Another (NCT-328494-2024-75(1)(b)) [2025] ZANCT 34 (18 June 2025)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT-328494-2024-75(1)(b)

In the matter between: NELISIWE MAGRET KHUMALO APPLICANT And RZT ZELPY 4300 (PTY) LTD T/A AUTOMAX GEORGE 1ST RESPONDENT WIZ LINK (PTY) LTD 2ND RESPONDENT WESBANK, A DIVISION OF FIRSTRAND BANK LIMITED 3RD RESPONDENT

Coram:

Dr MC Peenze – Presiding member

Dr A Potwana – Tribunal member

Mr CJ Ntsoane – Tribunal member

Date of hearing: 13 June 2025

Date of judgement: 18 June 2025

JUDGMENT AND REASONS

THE PARTIES

1. The applicant is Nelisiwe Magret Khumalo (the applicant), 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 Adv Lerato Zikalalala, on brief by Cliffe Dekker Hofmeyr Attorneys.

2. The first respondent is RZT Zelpy 4300 (Pty) Ltd, trading as Automax George (Automax), a private company registered as such under the company laws of the Republic of South Africa and a supplier in terms of section 1 of the CPA. At the hearing of this matter, the first respondent was represented by Mr Johannes Jumat of Raubenheimers Attorneys.

3. The second respondent is Wiz Link (Pty) Ltd (Wiz Link), a supplier as defined in section 1 of the CPA. At the hearing of this matter, the second respondent was represented by Ms Pamela Ditshego of Ngoetjana Attorneys.

4. The first and second respondents will be collectively referred to as "the suppliers”.

5. The third respondent is Wesbank, a division of Firstrand Bank Limited (Wesbank), a credit provider with registration number NCRCP20. The third respondent did not oppose the matter and was not present or represented at the hearing.

6. The first to third respondents will be collectively referred to as "the respondents”.

TERMINOLOGY

7. A reference to a section in this ruling refers to a section of the CPA.

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 suppliers. The applicant alleges that the suppliers contravened the CPA by selling her a defective vehicle and refusing to refund the purchase price.

9. The Tribunal has jurisdiction in terms of section 27(a)(ii)[1] of the National Credit Act 34 of 2005 (the NCA) to hear this application.

ISSUE TO BE DECIDED

10. The Tribunal must decide whether the first and second respondents engaged in prohibited conduct and, if so, whether the relief sought should be granted.

BACKGROUND

11. The complaint relates to alleged defects in a 2014 Kia Rio (the vehicle), which the applicant purchased on 1 April 2023 for R147,797.50. She purchased the vehicle from Wiz Link's dealership premises, but the sale agreement was in Automax's name.

12. On the day of purchase, 67 kilometres from the Wiz Link’s premises, one of the vehicle’s tyres suffered an explosion, which caused the vehicle to be in an accident. The vehicle was damaged beyond repair. Old Mutual Insure (the insurer) repudiated the applicant’s claim because the vehicle was not roadworthy. Thereafter, she submitted a complaint to the Ombudsman for Short-Term Insurance, who confirmed that the insurer was correct in repudiating the claim. She eventually referred her complaint to the Motor Industry Ombudsman of South Africa (MIOSA) and thereafter to the NCC,

which issued the notice of non-referral.

13. The applicant alleges that the vehicle had a defect (i.e. a defective tyre) as defined in section 53 and that she is entitled to relief in terms of section 56, read with the provisions in section 55. The applicant seeks an order declaring the suppliers’ conduct prohibited and a refund of the purchase price. No specific relief is sought against the third respondent.

14. The vehicle was written off after the accident and could not be returned to the suppliers.

15. The suppliers filed opposing papers, denying the allegations and contesting the Tribunal's jurisdiction in this matter.

THE HEARING

The applicant’s argument

16. According to the applicant, the vehicle’s tyres were past the acceptable industry standard; the tyre that exploded on the day of purchase was 13 years old. The applicant relied on an expert report, confirming the accident's cause as defective tyres.[2] The applicant argued that the vehicle was not fit to be driven due to the defective tyre.

17. The applicant submitted that the defective tyre is a material defect that warrants a return and a refund. According to the applicant, worn tyres pose a significant risk to driver safety. As the applicant was not informed of the tyres' type, age or defective condition before purchase, the applicant expected the tyres to be in good condition for a reasonable period. She could not have anticipated any defect leading to an accident 67 kilometres after the vehicle’s collection on the day of purchase.

18. The applicant further argued that section 56(2) should be interpreted as confirming a consumer’s right to a refund despite being unable to return the defective goods.

The first respondent’s argument

19. The first respondent does not dispute that the vehicle was in an accident. However, according to the first respondent, driver error cannot be ruled out, and contributory negligence should be considered. Hence, the first respondent argued that the complaint is, in essence, a common law claim for damages, which places the matter outside the jurisdiction of the Tribunal.

20. The first respondent obtained a roadworthy certificate and argued that the testing centre is responsible for scrutinising the condition of tyres. As no defects were evident when the roadworthy certificate was issued, the first respondent submitted that the tyres were not sold in a defective state.

21. According to the first respondent, tyres are not a material part of the vehicle, and a defective tyre would not render the vehicle as a whole defective. The first respondent submitted that the applicant should have brought a civil claim against the insurance company.

The second respondent’s argument

22. The second respondent reiterated the first respondent’s arguments repudiating the alleged defectiveness of the tyre. It emphasised that a roadworthiness certificate is sufficient proof that the vehicle had no defects on the date of purchase. The second respondent further confirmed the reliability of the testing station used.[3]

23. According to the second respondent, the accident's cause is unclear and could involve reckless driving. Therefore, despite the old tyres, the vehicle would have been safe if driven responsibly.

THE RELEVANT LEGAL PROVISIONS

24. Section 53(1)(a) states that a defect means a material imperfection in manufactured goods or components or a characteristic that renders the goods less acceptable than persons generally would be reasonably entitled to expect. Per section 53(1)(b), a defect is any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances. Section 53(1)(d) further defines goods as unsafe when, due to a characteristic, failure, defect or hazard, they present an extreme risk of potential injury or property damage to the consumer or other persons.

25. Section 55(2)(a)-(c) states that consumers have the right to receive goods that are reasonably suitable for their intended purposes. They have a right to goods of good quality and in good working order. The goods must be free of defects and be usable and durable for a reasonable time.

26. Section 56 deals with an implied warranty of quality. Subsection (2) states that within six months after 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. The supplier must then, at the election of the consumer, either repair or replace the failed, unsafe, or defective goods or refund the consumer the price paid by the consumer for the goods.

27. If a supplier repairs any goods or any component of any such goods and the failure, defect, or unsafe feature has not been remedied within three months after that repair, section 56(3) outlines that the supplier must replace the goods or refund the consumer the price paid by the consumer for the goods.

CONSIDERATION

28. The following issues require determination:

(a) whether the vehicle was defective at the time of sale; and

(b) whether the applicant is entitled to a refund.

Selling of defective and unsafe goods

29. The Tribunal has considered whether the suppliers’ conduct constitutes prohibited conduct[4] in terms of the CPA.

30. In doing so, the Tribunal is mindful of its wide-ranging powers to make appropriate orders concerning prohibited conduct.[5]

31. The applicant alleged the transgression of section 55(2), as the vehicle failed to satisfy the requirements and standards contemplated in section 55(2). Consequently, the Tribunal considered whether the vehicle had a defect, failure, hazard, or was unsafe per the definitions of these terms in section 53(1).

32. In Motus Corporation (Pty) Ltd and Another v Wentzel,[6] the Supreme Court of Appeal (SCA) held that not every small fault is a defect as defined. It must render the goods less acceptable than people generally would be reasonably entitled to expect from goods of that type or less useful, practicable, or safe for the purpose for which they were purchased.[7] The SCA opined that not every rattle or unfamiliar noise is a defect, that some defective modules may be readily replaced, as has occurred with the immobiliser, and that these issues do not render the vehicle defective enough to entitle the purchaser to return it and demand repayment of the purchase price.

33. According to the undisputed evidence before the Tribunal, the vehicle’s tyres were old, and one of these tyres exploded within 67 kilometres of the second respondent’s premises on the day of purchase.

34. Peter Walker's Opinion Report in the iWYZE Claim (Number Cl 245964) (the expert report) confirms the tyres’ age and explains why one suffered a blowout.

“2. The incident driver was travelling in a general Eastern direction of travel on the N12 highway when the right rear tyre of the vehicle suffered a blow-out due to the age of the tyre…

4. The vehicle was inspected at Auction Nation Kempton Park. Upon inspection, it was noted that the right rear tyre was in a poor condition due to the age of the tyre.”[8]

35. The suppliers did not disclose the old and deteriorated state of the vehicle's tyres before purchase.

36. As the suppliers could not provide any reason why the expert report should not be accepted, the Tribunal accepted the conclusions contained in the expert report as sufficient evidence that the tyre’s age rendered the blown-out tyre defective at the time of purchase:

“As tyres age and are exposed to the elements, the rubber compounds start to deteriorate, and cracks begin to form. You may be able to detect cracks on the surface of a tyre, but inner cracks can also form. Cracks in a tyre, whether visible or not, are extremely dangerous to drive on. Tyres should be checked regularly for signs of ageing, damage, and tread wear. Rubber compounds used in tyres contain anti- oxidising chemicals that help to slow down the natural ageing process of untreated rubber. However, tyres will always deteriorate with age, which increases the risk of tyre failure, and there are many ways in which this can be spotted:

• Cracking/crazing on the side wall of the tyre, caused by its flexing.

• Distortion of tyre tread.

• Deformation of the carcass of the tyre.

• There will also be a deterioration of the ride quality caused by vibrations through the tyre. This may signify the tyre's performance has been affected by age and should be investigated as soon as possible.

• Excessive or irregular wear can indicate problems such as misalignment.”[9]

37. As per the evidence, the vehicle was sold with Goodyear tyres. Goodyear (the manufacturer) recommends that "any tyre in service (meaning inflated and mounted on a rim of your vehicle, including your spore tyre regardless of whether that tyre is in contact with the roadway) 6 years, or more be replaced even if such tyre appears serviceable and even if it has not reached the legal treadwear limit.[10]

38. Based on the above exposition, the Tribunal is persuaded that the right rear tyre suffered a blowout due to age, confirming that the tyre was defective at the date of purchase. The respondents’ hearsay evidence that the applicant contributed to the accident is unsubstantiated and considered irrelevant in determining whether the tyre was defective when purchased.

39. The applicant argued convincingly that a defective tyre renders the whole vehicle defective and unsafe. The Tribunal considered the seriousness of the defect and is persuaded that a defective tyre in a vehicle can be a serious defect if not identified and replaced or repaired. Tyres are crucial components of a vehicle, not just a characteristic. They are the only point of contact between the vehicle and the road, and their design, construction, and condition directly impact the vehicle's handling, braking, and overall performance.[11] Tyres are crucial components of vehicles that play a fundamental role in ensuring safety, performance, and comfort on the road

40. In this matter, the applicant’s right to a safe vehicle of good quality was infringed, as she did not get an opportunity to fully enjoy the vehicle before the defective tyre rendered the vehicle unsafe and a blow-out resulted. The accident that occurred is undisputed before the Tribunal and confirms the unsafe condition of the vehicle. The vehicle’s failure to operate properly due to the defective tyres was no minor issue and rendered the vehicle unsafe.

41. The defective tyre is, therefore, found to be a characteristic that presented an extreme risk of personal injury to the applicant. It posed a safety risk, rendering the vehicle less useful, practicable or safe than persons generally would be reasonably entitled to expect. As the blow-out occurred on the first day of purchase, the Tribunal is persuaded that the defective tyre constitutes a serious defect in this case.

42. A consumer has the right to usable and durable goods for a reasonable period. In this case, the applicant purchased a vehicle, expecting it to be in good working order and defect-free. The Tribunal finds that a reasonable period should extend beyond 67 kilometres after purchase.

43. The Tribunal finds that the vehicle was unsuitable for its intended purpose: driving on the highway. It was neither of good quality nor in good working order. It was 'plainly' not safe and usable for a reasonable time.

44. The Tribunal further considered the suppliers’ failure to advise the applicant of the age of the tyres before purchase. The Tribunal finds that reliance solely on a roadworthiness report is inadequate for purposes of compliance with the CPA. The CPA’s protection of consumers applies to latent and patent defects. A consumer has the right to a safe and good-quality vehicle. To escape liability imposed by section 55(2)(a) and (b) of the CPA, a supplier must have disclosed the specific condition of goods, and the consumer must have expressly agreed to accept the goods in that condition or knowingly acted in a manner consistent with accepting goods in that condition.

45. The CPA aims to protect consumers from exploitation and abuse in the marketplace. It promotes an economic environment that supports and strengthens a culture of consumer rights and responsibilities. By failing to respect the consumer's right to safe and good quality goods, the suppliers have not only engaged in prohibited conduct as defined in the CPA but also infringed on the consumer's right to fair consumer practices.

46. Consequently, the Tribunal finds that the first and second respondents transgressed section 55(2)(a) – (c).

RELIEF

47. The applicant argued that a consumer has the right to a refund even if they do not return the defective goods. The vehicle was written off following the accident and could not be returned to the supplier.

48. Section 56(2)(a) regulates a reciprocal obligation between supplier and consumer:

“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.” [own emphasis]

49. The applicant argued that the legislator’s use of the word “may” should be interpreted as non-obligatory. According to the applicant, using “may” in section 56(2) gives the consumer the right to keep the defective goods and not return them to the supplier. Notwithstanding the consumer’s choice or inability to return the goods to the supplier, the applicant argued that the supplier will still be obliged to refund the defective goods.

50. The Tribunal finds the applicant’s legal reasoning partially flawed. While “may” generally indicates a permissive or discretionary power, the Tribunal can deviate from this literal meaning when interpreting legislation. The Tribunal may consider the legislation's context, purpose, and broader framework to determine if the use of "may" is intended to create an obligation or duty. The surrounding words, phrases, or sentences within the legislation can clarify whether the use of "may" is intended as permissive or obligatory. In section 56(2), for example, the word "may" is followed by language specifying

the consequences of deciding to return the defective goods, namely that the supplier “must” repair, replace or refund. The Tribunal is persuaded that the legislator intended to provide a consumer with the discretion whether or not to return or tender the return of defective goods. Once a consumer exercises the discretion to return defective goods, section 56(2) clearly states that the supplier is obligated to respect the consumer’s choice between refund, repair or replacement. As the word “may” in section 56(2) is used in conjunction with other contextual factors prescribing the supplier’s duty to act, the right to request a refund is directly linked to the consumer returning the defective goods.

51. The Tribunal, therefore, finds that an obligatory interpretation of the word “may” in section 56(2) would promote the values and objectives of the CPA. Hence, the Tribunal finds that a consumer can only request a refund under section 56(2) if the defective goods are returned or tendered for return. Any other interpretation would be nonsensical and may lead to a result inconsistent with the principles and values contained in the CPA. For instance, it would be practically impossible for a supplier to repair or replace goods if the word “may” could be interpreted as not placing an obligation on a consumer to return the goods. In our view, the Legislature could not have intended such an absurdity.

52. The CPA does not prescribe what should happen if the goods have been destroyed or depleted as a result of a supplier’s actions or fault. What is clear, however, is that such a loss amounts to damages which might be specific or general. The Tribunal has no jurisdiction to assess the amount that should be awarded to the applicant for the damages she suffered. What would be appropriate in the circumstances is for the applicant to institute a civil claim for damages before a civil court.[12]

53. In terms of section 115(2)(a), a person who has suffered loss or damage as a result of prohibited conduct must file with the registrar or clerk of the court a notice from the Chairperson of the Tribunal in the prescribed form:

“(i) certifying whether the conduct constituting the basis for the action is prohibited or required conduct in terms of [the CPA];

(ii) stating the date of the Tribunal’s finding, if any; and

(iii) setting out the section of [the CPA] in terms of which the Tribunal made its finding, if any.”

54. The certificate referred to in section 115(2)(b) is sufficient proof of its contents.[13]

ORDER

55. In the result, the Tribunal makes the following order:

55.1 It is declared that the first and second respondents contravened section 55(2)(a)-(c) of the CPA.

55.2 The contravention listed above is declared prohibited conduct.

55.3 There is no cost order.

DR. MC PEENZE PRESIDING MEMBER

Tribunal members Dr A Potwana and Mr CJ Ntsoane concur.

[1] This section provides that the Tribunal or a member of the Tribunal acting alone in accordance with the NCA or the CPA may adjudicate in relation to any allegations of prohibited conduct.

[2] See page 26, paras 31 – 33 and page 47 of the Tribunal record.

[3] See page 19 of the Tribunal record.

[4] Prohibited conduct is defined in section 1 as meaning an act or omission in contravention of the CPA.

[5] See National Credit Regulator v Dacqup Finances CC trading as ABC Financial Services – Pinetown and Another (382/2021) [2022] ZACSA 104 (24 June 2022).

[6] [2021] ZACSA 40; [2021] 3 All SA 98 (SCA) (13 April 2021).

[7] Ibid at pare [41].

[8] See page 49 of the record.

[9] See page 57 of the Tribunal record.

[10] See page 58 of the Tribunal record.

[11] See My Car Dictionary https://www.my-cardictionary.com/tyres-and-wheels/tyres.html

[12] See Steyn NO v Ronald Bobroff & Partners [2012] ZASCA 184; 2013 (2) SA 311 (SCA).

[13] Section 115(3).