Lephoto v Frankle Motors CC t/a Swan Motors (NCT/257336/2023/75(1)(b)) [2023] ZANCT 53 (7 December 2023)
- Citation
- [2023] ZANCT 53
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- National Consumer Tribunal
- Panel
- MC Peenze, S Hockey, A Potwana
- Case number
- NCT/257336/2023/75(1)(b)
More details
- Court
- National Consumer Tribunal
- Panel
- MC Peenze, S Hockey, A Potwana
- Case number
- NCT/257336/2023/75(1)(b)
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the parties had reached a settlement agreement outside its proceedings and that the applicant had formally withdrawn the application. As the applicant did not wish to make the settlement agreement an order of the Tribunal and requested removal of the matter from the roll, the Tribunal complied. No finding was made on the merits of the application, and no cost order was issued.
Court disposition
Application withdrawn and matter removed from the roll following settlement between the parties.
Orders
- The matter is removed from the roll.
- There is no cost order.
02
Material facts
Parties
Bonakele Hendrik Lephoto
Applicant Counsel: Mfundo MbathaFrankle Motors CC t/a Swan Motors
Respondent Counsel: Graig ThomasAmounts and remedies
- Purchase Price of Vehicle: ZAR 215,000
- Initial Settlement Deduction for Wear and Tear: ZAR 60,000
03
Procedural history
Posture
Review Application / Application for Redress Under Section 75(1)(b) of the Consumer Protection Act
04
Questions and positions
Legal issues
- 01
Whether the respondent breached the Consumer Protection Act by failing to repair the applicant's vehicle as requested.
- 02
Whether the applicant is entitled to redress under section 75(1)(b) of the Consumer Protection Act.
- 03
Whether the matter should be removed from the Tribunal's roll following settlement.
Party arguments
- Applicant
- The applicant alleged that the respondent failed to repair his Hyundai vehicle satisfactorily after purchase, despite multiple attempts. He sought redress under section 75(1)(b) of the Consumer Protection Act, relying on the supplier's obligation to repair defects. The applicant initially accepted a settlement involving a deduction for wear and tear but later withdrew acceptance on legal advice.
- Respondent
- The respondent argued that the applicant repeatedly identified new faults and that his use of the vehicle on gravel roads contributed to suspension issues. The respondent participated in settlement negotiations and maintained that repairs were effected as requested. The respondent agreed to settle the matter contractually without a Tribunal order.
05
Court’s reasoning
Legal principles
- 01
Consumer Protection Act 68 of 2008
A consumer is entitled to redress under section 75(1)(b) of the Consumer Protection Act if a supplier fails to comply with repair obligations.
- 02
National Consumer Tribunal Rules
A matter may be removed from the Tribunal's roll if the applicant withdraws the application and the parties settle outside the Tribunal.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the parties had reached a settlement agreement outside its proceedings and that the applicant had formally withdrawn the application. As the applicant did not wish to make the settlement agreement an order of the Tribunal and requested removal of the matter from the roll, the Tribunal complied. No finding was made on the merits of the application, and no cost order was issued.
Obiter and limits
- The Tribunal cautioned the applicant that withdrawal of the matter would preclude re-enrolment.
- The Tribunal noted that the contents of the settlement agreement were not disclosed and would not be confirmed as a consent order.
Court disposition
Application withdrawn and matter removed from the roll following settlement between the parties.
- The matter is removed from the roll.
- There is no cost order.
Source and reliance status
National Consumer Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
National Consumer Tribunal
Judgment
IN THE NATIONAL CONSUMER
TRIBUNAL HELD IN CENTURION
Case number: NCT/257336/2023/75(1)(b)
In the matter between:
BONAKELE
HENDRIK LEPHOTO
APPLICANT And
FRANKLE MOTORS CC T/A SWAN MOTORS
RESPONDENT
Coram:
Dr MC Peenze - Presiding Tribunal Member
Mr S Hockey - Tribunal Member
Dr A Potwana - Tribunal Member
Date of Hearing - 5 December 2023
Date of Judgment - 7 December 2023
JUDGMENT
AND REASONS
APPLICANT
1. The applicant in this matter is Bonakele Hendrik Lephoto (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 Mr Mfundo Mbatha (Candidate Attorney) of De Wet Lyell Nell & Maeyane Attorneys.
RESPONDENT
2. The respondent is Frankle Motors CC t/a Swan Motors (the respondent). The respondent is a supplier, as defined in section 1 of the CPA. At the hearing, the respondent was represented by Advocate Graig Thomas under instruction from Keith Sutcliffe & Associates Inc.
TERMINOLOGY
3. A reference to a section in this judgment refers to a section of the CPA.
APPLICATION TYPE
4. 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 respondent.
5. The applicant alleges a breach of the CPA because the respondent allegedly failed to comply with the applicant’s request to repair his vehicle in accordance with section 56(2)(a).
BACKGROUND
6. The applicant bought a Hyundai vehicle on 28 April 2021 for R215 000 from the respondent. He experienced mechanical and structural defects and returned the vehicle the day after purchase for repairs. The supplier affected repairs as requested. Hereafter, the consumer returned the vehicle several times, followed by repairs by the supplier every time.
7. Eventually, the consumer decided that the defects were not satisfactorily repaired and referred the matter to the Motor Industry Ombudsman of South Africa (MIOSA). The respondent alleges that the consumer found different faults in the vehicle every time and that his driving on gravel roads aggravated the risk of suspension malfunction.
8. The MIOSA advised that the purchase be cancelled, and the consumer is refunded with a deduction for reasonable wear and tear after using the vehicle. The consumer initially accepted the settlement, with around R60 000 deduction for wear and tear, but later retracted the settlement following advice from his legal representatives.
9. At the hearing, the parties advised that settlement negotiations had been renewed. Forthwith, they wished to settle the matter contractually without making the settlement an order of the Tribunal. The Tribunal advised the applicant that such an arrangement can only occur if he removes the matter from the roll. The Tribunal further cautioned the applicant that the matter cannot be re-enrolled in such an instance. Alternatively, the parties were advised to postpone the matter to allow for settlement negotiations to be completed. The parties did not want to postpone the matter.
10. As the settlement details were not yet finalised, the Tribunal allowed the matter to be stood down, permitting the parties to finalise their negotiations. The Tribunal reconvened and was informed that the parties had signed a settlement agreement and that the applicant had withdrawn the matter. The applicant confirmed that he would send the signed Tribunal form, confirming the removal of the matter, before 13:00 on 5 December 2023.
CONCLUSION
11. The parties settled outside the Tribunal, and the applicant subsequently requested that the matter be removed from the Tribunal’s hearing roll.
12. As the parties wish not to disclose the contents of the settlement agreement and further wish not to confirm the settlement agreement as a consent order, the Tribunal noted the withdrawal of the matter by the applicant. It made no finding on the merits of the application.
ORDER
13. Accordingly, the Tribunal makes the following order:
13.1 The matter is removed from the roll; and
13.2 There is no cost order.
DATED ON THIS 7TH DAY OF DECEMBER 2023.
(signed)
Dr MC Peenze
Presiding Tribunal Member
Tribunal Members Mr S Hockey and Dr A Potwana concur.
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