Masindwa v Hi Way Motors (Pty) Ltd and Another (NCT/347179/2024/75(1)(b)) [2025] ZANCT 30 (18 June 2025)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/347179/2024/75(1)(b)

In the matter between: XOLANI HANNET MASINDWA APPLICANT and HI WAY MOTORS (PTY) LTD FIRST RESPONDENT NATIONAL CONSUMER COMMISSION SECOND RESPONDENT

Coram:

Mr CJ Ntsoane

- Presiding Tribunal member

Ms Z Ntuli

- Tribunal member

Dr MC Peenze

- Tribunal member

Date of hearing

- 17 June 2025

Date of judgment

- 18 June 2025

JUDGMENT AND REASONS

THE PARTIES

1. The applicant in this matter is Xolani Hannet Masindwa (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 represented himself.

2. The first respondent is Hi Way Motors (Pty) Ltd (the first respondent), a supplier and service provider, as defined in section 1 of the CPA.

3. The second respondent is the National Consumer Commission (the NCC), an organ of the state within the public administration, established in terms of section 85 of the CPA.

4. The first and second respondents will collectively be referred to as “the respondents”. The respondents did not oppose the application and were not represented at the hearing.

TERMINOLOGY

5. A reference to a section in this judgment refers to a section of the CPA. A reference to a rule refers to the Tribunal Rules.[1]

APPLICATION TYPE

6. 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 first respondent. The applicant alleges that the first respondent contravened his rights under the CPA by failing to repair his vehicle correctly.

BACKGROUND

7. In June 2023, the applicant requested repair services for his 2010 Mitsubishi Triton (the vehicle) from the first respondent, as the vehicle could not start. The applicant’s previous mechanic advised him to take the vehicle to the first respondent. The first respondent quoted the applicant R19,500.00 to diagnose the problem and repair the vehicle to the best acceptable standard. The applicant expected the vehicle to start and drive for a reasonable period after the repairs.

8. The applicant paid a deposit of R6,500.00 to diagnose the vehicle's problem and R10,000.00 towards the invoice for services rendered. After the vehicle was collected, it broke down about 30 kilometres from the first respondent’s premises. After the first respondent’s mechanic failed to repair it on the spot, they towed the vehicle back to their workshop for further diagnosis. According to the first respondent’s response to the Motor Industry Ombudsman of South Africa (MIOSA), they found that the

cylinder head gasket had blown. Subsequently, the first respondent refused to make further repairs to the vehicle, alleging that the breakdown did not result from its repairs.

9. The applicant wants the first respondent to repair the vehicle as agreed and compensate him for the inconvenience of being unable to use it.

10. The applicant pursued the matter with the first respondent in vain. The applicant filed a complaint with MIOSA. On 13 February 2024, MIOSA found that it could not support the consumer’s expectations. The applicant then filed a complaint with the NCC. On 18 June 2024, the NCC issued a notice of non-referral.

THE APPLICANT’S SUBMISSIONS

11. The applicant submitted that the service he received from the first respondent was not of the quality and magnitude as agreed. He requested his vehicle to be repaired to such a standard that it would be driven for a reasonable period. As a layperson, he did not know what the problem was with the vehicle. That was why he requested the first respondent to do the necessary tests and make a professional diagnosis. The professional diagnosis was supposed to confirm the extent of repairs required to meet the applicant’s expectations. As the quotation was issued for all-encompassing repair, the applicant expected that the first respondent would properly repair the vehicle and that the vehicle would be driven once the quoted repairs were completed. With this understanding, the applicant accepted the quotation and made payments towards the invoice. He was never advised that there was a problem with the cylinder head gasket or that further repairs should be anticipated. According to the applicant, he was lured into repairs that did not address all the problems, including the alleged faulty cylinder head gasket. Hence, the vehicle was not properly repaired or driven for more than 30 km after the repairs.

12. The first respondent is still in possession of the vehicle, which the applicant returned with the request to remedy the repairs.

APPLICABLE RULES AND SECTIONS OF THE ACT

13. Rule 13(5) states that any fact or allegation in the application or referral not explicitly denied or admitted in an answering affidavit will be deemed admitted by the respondent.

14. Section 54(1) (b-c) states that when a supplier undertakes to perform any services for a consumer, the consumer has the right to the performance of those services, in a manner and quality that persons are generally entitled to expect. In addition, the goods used by the supplier must be free of defects and of a quality that persons are generally entitled to expect.

15. Section 54(2) (a-b) states that if a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to remedy the defect in quality or refund the consumer a reasonable portion of the price paid for the services performed.

CONSIDERATION OF THE EVIDENCE

16. By failing to oppose the matter, the first respondent lost the opportunity to defend the allegations made against it. The Tribunal is seized only with the applicant’s documentary evidence and oral arguments. In terms of rule 13(5), the Tribunal deems the facts alleged by the applicant as admitted by the respondents because they elected not to be represented at the proceedings or oppose the matter.

17. In June 2023, the applicant requested a complete vehicle repair, clearly outlining that he expects the vehicle to be roadworthy and repaired to the best acceptable standard. Given that the vehicle was old and failed to start, the Tribunal is persuaded that the first respondent should have done all the necessary tests to identify the problem, including tests such as a compression test or a cooling system pressure test. On the evidence before the Tribunal, the first respondent failed to identify all the problems with the vehicle correctly, and the professional diagnosis was, thus, incomplete.

18. After repairs, the head gasket blew within thirty kilometres of the collection point. The vehicle was returned immediately for the first respondent to remedy the defect in the quality of services performed. There is no evidence that the applicant misused or abused the engine or that the problems experienced resulted from ordinary wear and tear.

19. The Tribunal is persuaded that the first respondent failed to provide a service in a manner and of the quality that persons are generally entitled to expect. The vehicle failed to drive correctly after repair, the cylinder head gasket blew about thirty kilometres after collection, and the need for further repairs is clear.

20. The rights afforded to consumers under the CPA are there to protect them. An infringement of those rights could have serious financial consequences for a consumer. In this case, the applicant has been financially prejudiced by spending R16,500.00 in vain. This undoubtedly continues to cause him a great deal of distress.

21. The Tribunal considered the evidence before it and the extent of the repaired vehicle’s failure to perform as required. It finds that the applicant is entitled to insist that the returned vehicle is repaired in a manner and of the quality the applicant is entitled to expect.

CONCLUSION

22. The first respondent failed to properly diagnose and repair the vehicle as agreed between the parties.

23. By failing to provide its service in a manner and quality that persons are generally entitled to expect, the first respondent has contravened sections 54(1)(b). In line with section 54(2)(a), the applicant is entitled to require the first respondent to remedy its defective services.

ORDER

24. Accordingly, the Tribunal makes the following order:

24.1 The first respondent has contravened section 54(1)(b), read with section 54(2)(a) of the CPA.

24.2 The first respondent’s contravention of section 54(1)(b), read with section 54(2)(a) of the CPA, is declared prohibited conduct.

24.3 The first respondent is ordered to repair the vehicle in a manner and of the quality the applicant is entitled to expect and tender the vehicle for collection by the applicant within ten business days of issuing this judgment.

24.4 There is no cost order.

Dr MC Peenze

Presiding Tribunal member

Tribunal members Ms Z Ntuli and Mr CJ Ntsoane concur.

[1] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters

before the National Consumer Tribunal, 2007 (Government Gazette No. 30225).