Maharaj v We Buy Cars (Pty) Ltd (NCT/144806/2019/75(1)(b)) [2021] ZANCT 40 (23 August 2021)

IN THE NATIONAL

CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/144806/2019/75(1)(b)

In the matter between:

ANAND

MAHARAJ

APPLICANT

And

WE BUY CARS (PTY)

LTD

RESPONDENT

Coram:

Mr F Sibanda – Presiding Tribunal Member

Ms D Terblanche – Tribunal Member

Prof T Woker – Tribunal Member

Date of hearing – 10 August 2021

Date of judgment – 23 August 2021

JUDGEMENT

AND REASONS

PARTIES

1 The Applicant in this matter is Anand Maharaj, an adult male residing in Lenasia, Johannesburg (the "Applicant"), who lodged a complaint with the National Consumer Commission (“the NCC” or “the Commission”), against the Respondent. The Applicant was represented by his son, Pawan Maharaj (the “Applicant’s son”), at the hearing.

2 The Respondent is We Buy Cars (Pty) Ltd, a private company duly registered in terms of the company laws of the Republic of South Africa, with its registered address at Unit 1, Louwlardia Logistics Park, Olievenhoutbosch Road, Louwlardia, Centurion (the "Respondent"). The Respondent was represented by Adv Andre Gautschi[1], at the hearing.

TYPE

OF APPLICATION AND JURISDICTION

3 This application is brought in terms of section 75 (1)(b) of the Consumer Protection Act, No. 68 of 2008 ("the Act"), which states that –

"If the Commission issues a notice of non-referral in response to a complaint, other than on the grounds contemplated in section 116, the complainant concerned may refer the matter directly to –

(a) …

(b) the Tribunal, with the leave of the Tribunal."

4 The application for leave to refer the matter directly to the Tribunal was heard on 18 February 2021. The Tribunal granted the application on 23 February 2021. Therefore, this hearing is about the merits of the matter.

5 The Tribunal has jurisdiction to hear this matter, in accordance with section 75 (1)(b) of the Act.

ISSUES

TO BE DECIDED

6 The Tribunal must decide whether the Respondent engaged in prohibited conduct, by selling a defective vehicle to the Applicant, in contravention of section 56 read with section 55 of the Act. The Tribunal must also decide whether it can grant the relief sought, should it find in favour of the Applicant.

BACKGROUND

The Applicant’s submissions

7 The Applicant’s founding affidavit was deposed to by the Applicant’s son. For purposes of convenience, henceforth, reference to the Applicant shall mean both the Applicant and the Applicant’s son, unless specifically stated.

8 On 30 October 2018, the Applicant purchased a 2010 Audi A4 1.8T motor vehicle from the Respondent, after paying a deposit of R5 000. The motor vehicle had an odometer reading of approximately 172 000 kilometres. On the same day, during the test drive and inspection, the Applicant and the Respondent found and confirmed that –

8.1. A 180 000km service was required;

8.2. The driver’s window switch had fallen into the door panel and needed to be fixed;

8.3. The tyres on the vehicle were worn and needed to be replaced; and

8.4. The paintwork to the front of the vehicle appeared to have stone chips.

9 The Applicant and his son agreed that the faults identified during inspection and test driving would require further funding to be corrected once they took possession of the car.

10 On 14 November 2018 the Applicant booked the vehicle into an Audi workshop for a 180 000km service and paid for a new window switch. From the service, the Applicant and his son discovered that the front and rear brake discs and pads needed to be replaced. According to the Applicant, he was also advised that the vehicle required an engine overhaul.

11 On 19 November 2018, the Applicant and his son took the car to Minty’s-Gordon Road to replace the tyres. After replacing the tyres, they drove to a nearby panel-beater to have the front of the car assessed. The owner of the panel-beating establishment advised that the chips on the front of the car resulted from a poorly done spray-painting job. This would not be corrected by touching up and polishing the affected area but by removing the panels, sanding and re-spraying the entire front portion of the vehicle.

12 On 29 November 2018, the vehicle was booked in at Audi-Northcliff to have the window switch installed. After the window switch was installed, the Applicant was informed that the bonnet switch/sensor and the rear right door lock were faulty and needed to be replaced. The Applicant and his son submit that at this stage they were frustrated that the vehicle was not in the condition that the Respondent represented. However, given the end-of-year work pressure and the upcoming holidays, the Applicant and his son decided that they will deal with these issues at a later stage.

13 On 9 January 2019, while taking the car out of the garage, the Applicant’s son noticed a pool of coolant on the garage floor and immediately called Audi-Northcliff to book the car for inspection. The inspection revealed that the water pump needed to be replaced. The Applicant’s son was given a spare bottle of coolant and advised to drive back home, topping up the coolant on the way whenever necessary, and to park the car until the fault had been repaired.

14 On 15 January 2019, the Applicant reported the water pump defect to the Respondent. On 23 January 2019, the Respondent reverted to the Applicant stating, among other things, that:

14.1. The vehicle was bought “as is”;

14.2. The cost of repair would be for the consumer’s account.; and

14.3. The consumer may refer its complaint to the office of the Motor Industry Ombudsman of South Africa (“MIOSA”).

15 On 24 January 2019, the Applicant’s son, in an attempt to provide the Respondent with an opportunity to review its decision wrote a review on the Respondent’s Hello Peter[2] profile detailing his concerns and asked that the Respondent review its decision. The Respondent reverted with the same response as in paragraph 14 above.

6 On 30 January 2019, the Applicant lodged a complaint with MIOSA. On 5 February 2019, the MIOSA closed its file on this matter, stating, among other things, that "… it must be noted that the MIOSA is not mandated to solicit refunds and / or financial compensation of this nature…"

17 On 9 April 2019, the Applicant lodged a complaint with the National Consumer Commission (the “Commission”). On 19 June 2019, the Commission issued a letter of non-referral, as envisaged by section 75 of the Act, stating that "the redress sought could not be provided for in terms of the CPA, as the Applicant had the vehicle repaired by a third party, which voided the warranty in terms of the CPA".

18 On 30 November 2019, the Applicant applied to the Tribunal, in terms of section 75 (1) (b) of the Act, for leave to refer the matter directly to the Tribunal. The Tribunal granted the leave as sought.

19 Given the above, the Applicant alleges the following against the Respondent:

19.1. False, misleading or deceptive representations of the vehicle at the time of sale, as outlined in

section 41 of the Act;

19.2. Unconscionable conduct, as outlined in section 40(1) of the Act;

19.3. Disregard for the consumers’ rights to safe, good quality goods, as outlined in section 55 of the Act;

19.4. Disregard for the implied warranty of quality, as outlined in section 56 of the Act;

19.5. Misconduct through ineffective safety monitoring and recall systems, as outlined in section 60(2) of the Act;

19.6. Disregard for consumers’ rights to a warranty on repaired goods, as outlined in section 57 of the Act;

19.7. Lack of supplier entitlement to sell the goods, as outlined in section 44 of the Act;

19.8. Disregard for the consumers’ rights to fair and responsible marketing when selling goods, as outlined in section 32(1) of the Act;

19.9. Discriminatory marketing by not enforcing equality in the consumer market, as outlined in section 8 (2)(d) of the Act;

19.10. Offences relating to the Commission and Tribunal by diminishing the authority; grounds and, as a result, its affiliated entities, as outlined in section 109(2) of the Act;

19.11. Prohibited transactions, agreements, terms and/or conditions, as outlined in section 51(1) of the Act; and

19.12. Fraudulent schemes and offers by collusion with an agent, as outlined in section 42(4) of the Act.

20 The Applicant seeks the following relief –

20.1. The vehicle to be returned to the Respondent, in accordance with section 56 of the Act;

20.2. Refund for the full amount paid for the vehicle, together with interest; as outlined in section 47(3) of the Act;

20.3. Refund for all provable service and maintenance expenses incurred; together with interest, in accordance with section 47(3) of the Act;

20.4. Refund for all provable loan and insurance instalments incurred for the vehicle, until such time as the matter is resolved, as the vehicle has not been and will not be drivable. This together with interest, in accordance with section 47(3) of the Act;

20.5. The Tribunal to provide the Applicant with a certificate outlining the Respondent’s prohibited conduct, as outlined in section 115 (2)(b) and (3) of the Act;

20.6. The Respondent to be investigated with relation to unfair, unsafe and prohibited conduct as well as varying offences pertaining to diminishing the relevance and legal authority of the Act and its affiliated authorities, as outlined in section 72(d) of the Act; and

20.7. An order as to the research, compilation and costs of the application.

The Respondent’s submissions

21 The Respondent’s opposing affidavit was deposed to by Christopher James Rein, a director and chief financial officer of the Respondent. Essentially, the Respondent argues that the Applicant purchased a well-used, second-hand vehicle from the Respondent, which needed the usual and expected repairs arising out of fair wear and tear. Yet, more than two months after having taken delivery, and having driven some 4 000 kilometres, when the water pump needed replacing, instead of requesting the repair to the water pump, the Applicant promptly and unreasonably demanded a refund of the purchase price and to return the vehicle to the Respondent.

22 The Respondent further argues, among other things, that:

22.1. The water pump defect cannot be shown to have been present when the vehicle was delivered since; it first manifested itself more than two months and some 4 000 kilometres later;

22.2. The need to repair the water pump (the only real complaint) does not objectively warrant a refund of the purchase price against return of the vehicle;

22.3. The other smaller complaints were either caused by fair wear and tear to be expected in a vehicle with more than 170 000 kilometres on the odometer, or were known to the Applicant at the time of purchase;

22.4. The Respondent has made a generous offer, which remains open, but which the Applicant’s son will not accept because he is hoping for an outrageous amount of damages to be paid to him (more than R11 000 000.00), which damages, if suffered at all, were suffered by the Applicant not by his son. The Respondent’s offer is to refund the vehicle’s purchase price against return of the vehicle, to pay all provable costs incurred on repairs of the vehicle, less usage costs at AA rates for kilometres travelled; and

22.5. The Applicant has made out no case that the Respondent is or was guilty of prohibited conduct or that an investigation into its affairs is warranted.

23 Regarding a possible engine overhaul, the Respondent points out that the job card[3] shows the results of a compression test that reads: “Carry out compression test”. The invoice further states that “c/o compression test shows within tolerance, but it drops below 7 bar, engine overhaul is required.” According to the Respondent, the word “it” makes no sense and was clearly intended to read “if”. This is so since the compression tests were all above 7 bar per cylinder. The compression test does not indicate and support the need for an engine overhaul. The Applicant’s reliance on the need for an engine overhaul allegedly based on the compression test is therefore dishonest.

24 The Respondent goes on to argue that if the Applicant’s statements were true, it means that, despite the knowledge on 14 November 2018, of the need for an engine overhaul, the Applicant continued to drive the vehicle for two months and some 4 000 kilometres, and only ceased to use the vehicle further because of the water pump problem. In addition, the need for an engine overhaul may be considered far more serious, and would presumably be far more costly, than a water pump which needs replacement, yet the Applicant did not complain of the need for an engine overhaul to the Respondent at that stage (i.e., shortly after 14 November 2018) or at any stage until 30 August 2019. Also, the Applicant did not mention this in his complaint to Hello Peter.

25 With respect to the applicable legal principles, the Respondent submits that section 56(2) of the Act enjoins the supplier, at the direction of the consumer, either to repair or replace the goods or to refund the purchase price to the consumer if the supplier supplied defective goods or services to the consumer. As such, the question arises whether the consumer can demand that the goods be replaced, or that he be refunded the purchase price, for any defect, no matter how minor or trivial.

26 According to the Respondent, at common law, a latent defect would give rise to either the actio quanti minoris, or the actio redhibitoria. Reliance upon the actio redhibitoria is only justified if the latent defect was serious enough that the purchaser would not have bought the product had he been aware thereof on conclusion of the contract, which test has both a subjective and an objective element. If the defect could be corrected quickly and for a relatively inconsequential amount, the purchaser would not be entitled to cancel the agreement. On that basis, it is neither logical nor sensible that any defect, no matter how minor or trivial, would entitle the consumer to demand a replacement of the goods or a refund of the purchase price, as opposed to demanding a repair of the defect.

27 The Respondent argues that the Tribunal has recognised this, and there are at least four cases in which the Tribunal has fettered the consumer’s discretion on the grounds that the choice was impractical or unfair. Therefore, the Respondent submits that section 56(2) should be interpreted with that limitation in mind.

28 Consequently, it should be noted that the only relief claimed by the Applicant is the return of the vehicle to the Respondent, without claiming the lesser, and obviously more appropriate (on the Applicant’s version), relief afforded to him under section 56(2), namely repair.

29 Furthermore, according to the Respondent, the Applicant is not entitled to the relief as envisaged by section 47(3) of the Act, as set out above, and claimed in 2b to 2d of Part D in the Applicant’s application, as section 47(3) relates specifically to the situation where the supplier fails to supply goods, as opposed to remedies consequent upon the supply of alleged defective goods. Therefore, section 47(3) is simply not applicable to this case.

30 This notwithstanding, the Respondent states that it has tendered to take back the vehicle and to refund the Applicant the purchase price of the vehicle, along with all repair costs, less the reasonable travel expenses (at AA rates), in respect of the distance travelled from date of sale to date or return.

31 Given the above, the Respondent prays for the dismissal of the application with costs, or alternatively that an order be made in accordance with the Respondent’s tender, which remains open.

THE

LAW APPLICABLE TO THE APPLICATION

32 The Applicant listed various sections of the Act that the Respondent is alleged to have contravened. However, on close scrutiny, the Applicant’s complaint can be categorised into two broad parts. The first part relates to false, misleading or deceptive representations of the vehicle at the time of sale as outlined in section 41 of the Act. The second part deals with the right to safe, good quality products and the implied warranty on products, as outline in section 56 read with section 55 of the Act. Below, we consider the sections of the Act that are applicable to this case.

33 Section 41 of the Act deals with false, misleading or deceptive representations and states that –

(1) “In relation to the marketing of any goods or services, the supplier must not, by words or conduct –

(a) directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer;

(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception; or

(c) fail to correct an apparent misapprehension on the part of a consumer, amounting to a false, misleading or deceptive representation, or permit or require any other person to do so on behalf of the supplier.

(2) …

(3) Without limiting the generality of subsections (1) and (2), it is a false, misleading or deceptive representation to falsely state or imply, or fail to correct an apparent misapprehension on the part of a consumer to the effect, that –

(a) the supplier of any goods or services has any particular status, affiliation, connection, sponsorship or approval that they do not have;

(b) any goods or services –

(i) have ingredients, performance characteristics, accessories, uses, benefits, qualities, sponsorship or approval that they do not have;

(ii) are of a particular standard, quality, grade, style or model;

(iii) are new or unused, if they are not or if they are reconditioned or reclaimed, subject to subsection (4);

(iv) have been used for a period to an extent or in a manner that imaterially different from the facts;

(v) have been supplied in accordance with a previous representation; or

(vi) are available or can be delivered or performed within a specified time; …”

34 In section 53 (1)(a) of the Act, a "defect" is defined as follows:

(i) "any material imperfection in the manufacture of the goods or components, or performance of the services, that renders the goods or results of the services less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or

(ii) any characteristic of the goods or components renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances."

35. Section 55(2) of the Act states as follows –

“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 of 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 5 No. 29 of 1993), or any other public regulation.”

36 Section 55(6) of the Act states as follows –

“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.”

37 Section 56 of the CPA states as follows –

“(1) 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 and the 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 the retailer, as the case may be.

(2) 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.

(3) 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.

(4) The implied warranty imposed by subsection (1), and the right to return goods set out in subsection (2), are each in addition to –

(a) any other implied warranty or condition imposed by the common law, this Act or any other public regulation; and

(b) any express warranty or condition stipulated by the producer or importer, distributor or retailer, as the case may be.”

ANALYSIS

OF THE EVIDENCE

38 Given the fact that these are motion proceedings, the Tribunal was guided by the Plascon Evans rule[4], in considering the evidence presented. The Plascon Evans rule as articulated by the honourable judge in Dwele v Phalatse and Others[5] states that –

“In motion proceedings a final order may be granted if those facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. In certain instances the denial by a respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. It is bona fide disputes in motion proceedings which fall to be determined on the facts contained in the opposing papers which must be preferred in accordance with the rule in Plascon-Evans Paints Ltd v. Van Riebeeck Paints (Pty) Ltd”.

39 The first part of the Applicant’s case is premised on alleged misrepresentation by the Respondent. According to the Applicant, the fact that ‘cumulative defects’[6], inclusive of the faulty water pump, were found in the vehicle within two months of purchase, raises the probability that the Respondent made a false, misleading or deceptive representation of the vehicle at the time of sale, in breach of section 41 of the Act. The Applicant further alleges that the discovery of defects within two months of taking delivery of the vehicle implies that the vehicle was not inspected prior to sale.

40 However, it is common cause that the Respondent advised the Applicant of the condition of the vehicle and pointed out the items that needed repairing. It is also common cause that the Applicant did a test drive and inspection of the vehicle prior to purchase. Furthermore, the Applicant proceeded to attend to the identified repair items, after taking delivery of the vehicle. With respect to the cumulative defects, there is no evidence that these were present at the time of sale and that the Respondents knew about them but chose to misrepresent the condition of the vehicle to the Applicant. As such, the Applicant has not provided evidence to support the allegation of false, misleading or deceptive representation by the Applicant.

41 On the other side, the Respondent relies on the fact that the Applicant was advised of the items that needed repairing, to suggest that the Applicant cannot invoke the implied warranty as provided for in section 56 of the Act. This is so, argues the Respondent, because the Applicant was expressly informed that the vehicle was offered in a specific condition, thus triggering the operation of section 55(6) of the Act. However, as pointed out by Barnard (2020)[7] –

“…although compliance with s 55(6) can allow for the standard of goods to be of a lower quality, it can never be equated with an exclusion of implied warranty in s 56. Even if the standard of quality of the goods is lowered in terms of s 55(6), the implied warranty of quality will continue to apply to those particular goods in that particular condition.”

42 Thus, despite the Applicant having been expressly informed of the condition of the vehicle, the Respondent would still have been bound by section 56 of the Act.

43 We now turn to the second part of the Applicant’s case relating to the allegation of a defective product and the application of section 56 of the Act. As outlined above, on 9 January 2019, the Applicant noticed a pool of coolant in the garage as he was taking out the vehicle. He took the vehicle for inspection by Audi-Northcliff, where it was discovered that the water pump was faulty and needed to be replaced. The Applicant informed the Respondent of the fault and that he would like to return the vehicle and “try to find a solution that would be mutually beneficial to both parties”[8].

44 The Respondent admitted this allegation in the answering affidavit[9]. However, at the hearing the Respondent stated that the Applicant wanted to return the vehicle in order to cancel the contract and get a refund of the purchase price of the vehicle. On the one hand the Respondent seems to be saying the return was for purposes of a repair but that the Applicant would have to foot the bill, while on the other hand the Respondent says the return was for purposes of a refund. Section 56(2) of the Act says the consumer may return the goods, and then direct the supplier to repair or replace the unsafe or defective goods or refund the consumer the purchase price. The Applicant denied the Respondent’s version that the Applicant wanted a refund of the purchase price, and stated that such an interpretation is misplaced. Instead, he intended to return the vehicle so that the Respondent would assess the defect and the two parties would decide a mutually beneficial outcome.

45 The Applicant further indicated in the founding affidavit[10] that after reporting the water pump problem to the Respondent, the Respondent emailed a response on 25 January 2019, stating that the vehicle was bought “as is” and that the cost of the repairs would be for the Applicant’s account. Again, this allegation is admitted by the Respondent in the answering affidavit[11]. It is also important to point out, as emphasised by Barnard (2020)[12], that section 55(6) of the Act is not an endorsement of the voetstoots (selling goods “as is”) clauses that were prevalent to these types of agreements prior to the promulgation of the Act and that any attempt to exclude liability when transacting, goes against the letter and spirit of the Act.

46 Thus, as stated above, despite section 55(6), the Applicant would have been entitled to return the vehicle to the Respondent, without penalty, and at the Respondent’s risk and expense, if the vehicle was defective and satisfied the requirements of section 56 of the Act. This is the essence of this case, and consequently, what the Tribunal must determine.

47 The issue of a defective vehicle was dealt with recently in Motus Corporation (Pty) Ltd and Another v Wentzel[13]. Ms Wentzel brought a case in the Gauteng Division of the High Court, against Motus Corporation (Pty) Ltd, trading as Zambezi Multi Franchise (Renault). Ms Wentzel sought to return a Renault Kwid motor vehicle, against the refund of the purchase price, claiming that Renault had sold her a brand new car that was ‘woefully defective’, in breach of sections 49 (1)(b), 55 (2)(b) and (c), 56 (2)(a) and (b) and 56(3) of the Act. The court found in Ms Wentzel’s favour. Renault took the matter on appeal at the Supreme Court of Appeal (SCA).

48 The SCA had to decide, among other things, whether Ms Wentzel made out a case in terms of section 56(2) and (3) of the Act for the refund of the purchase consideration paid to Renault in respect of the vehicle. The court opined that –

“Not every small fault is a defect as defined. It must either render the goods less acceptable than people generally would be reasonably entitled to expect from goods of that type, or it must render the goods less useful, practicable or safe for the purpose for which they were purchased… Is every rattle or unfamiliar noise a defect in terms of the statute? A defective module may be readily replaced, as occurred with the immobiliser. Does that render the vehicle defective so as to entitle the purchaser to return it and demand repayment of the purchase price? Clearly not.”

49 In the end the court found that a consumer is not entitled to a refund of the purchase price unless they satisfy the court that all requirements stipulated in section 56(3) have been met. Ms Wentzel failed to show that the requirements of section 56(3) were satisfied and that she was entitled to return the vehicle against refund of the purchase price of the vehicle. Thus, the SCA upheld the appeal.

50 In the case at hand, the question that arises is whether the faulty water pump could be considered a defect within the meaning of section 53 read with section 55 and 56 of the Act, having regard to the nature of the vehicle: being a used vehicle, that had done about 172 000 kilometres on purchase and went on to do an additional 4 000 kilometres over a period of two months since purchase. The Tribunal was not proffered with evidence indicating that the faulty water pump rendered the vehicle defective as opposed to being the result of normal wear and tear to be expected of a vehicle of this nature.

51 Similarly, with respect to the other ‘cumulative defects’ the Applicant did not provide evidence to prove that these were defects within the meaning of the Act as opposed to normal wear and tear.

52 Regarding the need for an engine overhaul, the Respondent’s version appears probable. This is so, because the results of the compression test show readings of over ‘7’ and that the wording of the invoice[14] imply that ‘if’ the compression readings drop below ‘7’ bar then an engine overhaul would be required. As such, it doesn’t appear that there was a need for an engine overhaul as yet, contrary to the allegation made by the Applicant.

53 The Applicant made several other allegations against the Respondent, as outlined in paragraph 19 above. The Applicant appears to have misdirected himself regarding the following sections of the Act: 8 (2)(d); 32(1); 40; 42(4); 44; 47; 48; and 109. Moreover, the Tribunal has no jurisdiction to deal with allegations relating to the retrieval of information from Audi-Northcliff by the Respondent, without a subpoena.

54 Also, the Applicant had compiled a number of complaints from the HelloPeter website as part of the evidence against the Respondent. Those complaints are not before the Tribunal, and therefore cannot be regarded as evidence. Similarly, in the Applicant’s heads of argument the Applicant makes an allegation that the repair items disclosed by the Respondent to the Applicant during the inspection of the vehicle prior to the sale, are not listed in the sales invoice. Despite this being a new allegation that is not contained in the founding affidavit, and therefore cannot be dealt with by the Tribunal, there is no requirement in the Act that a supplier should list in the sales invoice the representations made to a consumer when selling a product.

CONCLUSION

55 Having considered the evidence submitted, the Tribunal finds that the Applicant failed to prove that the faulty water pump rendered the vehicle defective within the meaning of the Act and that the engine required an overhaul. Similarly, the Tribunal finds that there is no evidence to prove that the ‘cumulative defects’ satisfy the requirements of section 56 of the Act.

56 Regarding the rest of the allegations made by the Applicant against the Respondent, the Tribunal finds that either the Applicant misdirected himself regarding the law applicable to those allegations or that the Tribunal has no jurisdiction to adjudicate and make a finding on the allegations.

57 Given the above findings of the Tribunal, it is not necessary to deal with the Applicant’s prayers. However, the Respondent prayed for a cost order against the Applicant.

58 Section 147 of the National Credit Act, No 34 of 2005, provides that –

(1) Subject to subsection (2), each party participating in a hearing must bear its own costs.

(2) If the Tribunal –

(a) has not made a finding against a respondent, the member of the Tribunal presiding at a hearing may award costs to the respondent and against a complainant who referred the complaint in terms of section 141(1) or section 75 (1)(b) of the Consumer Protection Act, 2008, as the case may be; ..”

59 It is apparent from section 147 of the Act that the Tribunal can award a cost order against the Applicant in this case. However, the Tribunal considered the fact that the Commission’s finding that the Applicant altered the vehicle contrary to the instructions of the Respondent and thus voided the implied warranty, was incorrect. The Tribunal also considered the fact that the Applicant is unrepresented and that a cost order might dissuade future complainants and thus have a chilling effect on the administration of the Act.

60 Regarding the Respondent’s alternative prayer of making an order in accordance with the Respondent’s tender, the Tribunal only has powers to confirm a consent agreement as an order of the Tribunal. There is no consent agreement before the Tribunal in this case. The matter is left to the parties.

ORDER

61 Accordingly, for the reasons set out above, the Tribunal makes the following order:-

61.1. The Applicant’s application is dismissed; and

61.2. No order is made as to costs.

Thus done and signed on 23 August 2021.

[signed]

Mr F Sibanda

Presiding Tribunal Member

Ms D Terblanche (Member) and Prof T Woker (Member) concurring

[1] Instructed by ENS Africa Attorneys

[2] An online review platform that allows consumers to share their experiences in dealing with businesses

[3] Annexure WBC2, page 166 of the bundle

[4] Plascon-Evans Paints Ltd. v Van Riebeck Paints (Pty) Ltd. [1984]. ZASCA 51 [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E to 635C

[5] Dwele v Phalatse and Others (11112/15) [2017] ZAGPJHC 146 (7 June 2017)

[6] Para 36 of the Applicant’s founding affidavit and para 52.2 and 52.3 of the Applicant’s heads of argument

[7] Barnard, J. (2020). Suppliers, consumers and redress for defective vehicles – The reach of the National Consumer Tribunal: Tshehla v Aucamp Eiendoms Beleggings. The South African Law Journal. Volume 137/Part 2: 229-245

[8] Para 20 of Applicant’s founding affidavit

[9] Para 87 of Respondent’s answering affidavit

[10] Para 21 of the Applicant’s founding affidavit

[11] Para 87 of Respondent’s answering affidavit

[12] Barnard, J. (2020). Suppliers, consumers and redress for defective vehicles—The reach of the National Consumer

[13] SCA. Case no 1272/2019) [2021] ZASCA 40 (13 April 2021)

[14] Annexure WBC2, page 278 of the bundle