Mia v Car King Second-Hand (Pty) Ltd and Another (NCT29083/2015/73(3)&75(1)) [2017] ZANCT 128 (1 November 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION

Case number: NCT 29083/2015/73(3)&75(1)

In the matter between:

SHERAZAAN

MIA

APPLICANT

and

CAR KING SECOND-HAND (PTY) LTD

FIRST

RESPONDENT

RABUTLA TRADING 33 CC

trading as

HOUSE

OF

TRADE

SECOND

RESPONDENT

Coram:

Professor Tanya Woker – Presiding member

Mr Trevor Bailey – Tribunal member

Ms Hazel Devraj – Tribunal member

Date of hearing: 31 October 2017

JUDGEMENT

PARTIES

1. The applicant is Sherazaan Mia ("Mia"), an adult female consumer who resides in Troyeville, Johannesburg, Gauteng. Mia appeared in person and was assisted at the hearing of this application by Zunaid Ally ("Ally").

2. The first respondent is Car King Second-Hand (Pty) Ltd ("the first respondent") duly registered and incorporated in terms of the company laws of the Republic of South Africa.

3. The second respondent is Rabutla Trading CC trading as House of Trade ("the second respondent"), a duly registered close corporation incorporated in terms of the close corporations laws of the Republic of South Africa.

4. The first and second respondents (who unless otherwise stated are interchangeably referred to as "the respondents") have their principal place of business at 44 Main Road, Newlands, Johannesburg, Gauteng.

5. The respondents were represented at the hearing of this application by Adriaan Britz ("Britz"), who is a director of the first respondent and the sole member of the second respondent.

APPLICATION

6. In this application Mia seeks to be reimbursed the amount of R27 376.51 that she paid to the first respondent alternatively the second respondent towards the purchase of a Tata Telcoline motor vehicle bearing registration number [...] ("the vehicle") in terms of a Master Rental Agreement ("the agreement"). The agreement is what is commonly known as a 'rent to own' agreement.

BACKGROUND

7. On 30 January 2014 Mia referred a complaint to the National Consumer Commission ("the commission").

8. The commission mandated the Motor Industry Ombudsman of South Africa ("the ombud") to investigate and resolve the complaint in terms of section 72 (1) (b) of the Consumer Protection Act, 68 of 2008 ("the CPA") The ombud was unable to resolve the complaint and referred it back to the commission.

9. The commission considered the complaint and on 15 July 2017 issued a notice of non-referral to Mia in terms of section 72 (1) (a) (ii) of the CPA because the complaint does not allege any facts which, if true, would constitute grounds for a remedy under the CPA. The commission elaborated in its covering letter to the applicant that:

"... The recourse you are requesting from the Respondent is a claim for damages which does not have remedy under the Consumer Protection Act. As such the Consumer Protection Act cannot be enforced. We advise that you can approach the competent Court of Law in order to make a claim."

10. The National Consumer Tribunal ("the Tribunal") has jurisdiction to hear an application of this nature in terms of section 27 of the National Credit Act, 34 of 2005 read with section 75(1) (b) of the CPA. Section 75 of the CPA provides 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…the Tribunal, with leave of the Tribunal.”

11. On or about 4 August 2015 Mia applied to the Tribunal in terms of section 75 (1) (b) of the CPA for an order granting her leave to refer this application directly to the Tribunal. On 8 April 2017 the Tribunal granted Mia such leave. The Tribunal therefore proceeded to hear the merits of this application at this hearing.

SUMMARY OF SUBMISSIONS

The applicant

Mia

12. Mia stated that the first respondent's manager, Morne Britz ("Morne"), initially requested Mia to pay an administration fee of R500.00 to the second respondent to determine whether or not Mia qualified to purchase a vehicle. Mia paid the administration fee. Morne subsequently informed Mia that he had a vehicle for sale and she paid a deposit R15 000.00 into the first respondent's bank account.

13. On 26 September 2013 Morne informed Mia that she could collect the vehicle. Ally, who was at the time Mia's fiance, accompanied Mia to the respondents' premises where she signed the agreement, paid the first respondent a pro rata rental of R1 400.00 for the month of September 2013 and took possession of the vehicle.

14. When Mia and Ally drove out of the respondents' premises the vehicle's hooter went off automatically and Morne instructed the mechanic to repair it. Ally also asked Morne about the noise when Ally pressed the vehicle's clutch. Morne requested Mia and Ally to make a list of all the vehicle's problems and to return the vehicle to the respondents. Mia experienced endless problems with the vehicle because the gearbox was defective. Ally eventually returned the vehicle to the respondents during the second week of October 2013. However, the respondents did not contact either Mia or Ally despite their continuous communications with the respondents. Ally eventually went to the respondents' premises on 29 November 2013 when he was told that the vehicle was ready to be collected.

15. Later that day Ally drove the vehicle away from the respondents' premises and two hours later was involved in a motor vehicle collision ("the collision"). Ally immediately notified Morne about the collision and the vehicle was towed to a panel beater. An insurance claim was eventually registered with Santam after numerous difficulties, which concerned amongst other things, that the vehicle was not insured, had been involved in an accident in 2012, the claim had been registered in the wrong province and the vehicle had been registered in the name of one S van Rooyen.

16. On 12 December 2013 Santam advised that the vehicle would be written off because the vehicle had suffered recent damage to the left passenger side and bumper as well as old damage on the driver side door. The respondents had not disclosed the old damage to Mia when she concluded the agreement. The recent damage occurred after Mia had taken possession of the vehicle.

17. Ally discussed these developments with Morne, who advised that there was nothing he could do because Britz was away on holiday and would only be returning in the New Year on 6 January 2014. Morne added that Santam would settle the outstanding amount due on the vehicle but Mia would have to enter into a new agreement and pay another deposit. Santam also sent Mia a short message service stating that the insurance claim had been settled for an amount of R70 890.90 on 8 January 2014. Mia requires a refund of the money she paid to the respondents.

Ally

18. Ally stated that the vehicle's engine had given problems from the outset. He confirmed that Morne had requested him to make a note of all the mechanical problems. He did so and returned the vehicle to the respondents the following week. The vehicle's gearbox had caused the biggest problem. Ally considered the respondents' service to have been poor and was aggrieved that the respondents had only provided him with a courtesy bakkie after he had protested that he was without transport.

19. The respondents repaired the vehicle and returned it to Ally about two and a half weeks later only for the noise to start again after one or two days. Ally therefore returned the vehicle to the respondents and was without a courtesy car for three to four days before Britz provided Ally with a Diahatsu courtesy car that was in a very poor condition.

20. The mechanic who repaired the engine eventually informed Ally that the repairs to the vehicle had been completed and Ally collected it from the mechanic. Ally then took the vehicle to the respondents' premises to show Morne that he had taken possession of the vehicle.

21. Unfortunately, Ally was involved in a motor vehicle collision later that day about eight kilometres from the respondents' premises. Ally informed Morne about the collision and suggested that the respondents should replace the vehicle because Mia and Ally had hardly been able to use the vehicle before the collision. Morne replied that Mia would be required to enter into a new agreement with a new vehicle. Ally was aggrieved because Mia and Ally had paid about R30 000.00 for a vehicle that had been handed over to them in a poor condition. In addition, Santam had paid the respondents about R70 000.00 when writing off the vehicle.

22. Mia and Ally experienced nothing but a bad attitude from the respondents after purchasing the vehicle. Ally felt that he and Mia had "got a bad deal". They did not suffer much financial loss from a business point of view as a result of not having had the use of the vehicle.

The respondents

Britz

23. Britz denied that Mia had received poor service and was adamant that the respondents did not run away from the problem. Morne had told Ally to draw up a list of defects and return the vehicle to enable the respondents to repair the defects. The respondents used an outside professional to repair the clutch and gearbox. They also gave Mia a bakkie and Diahatsu to use while the vehicle was being repaired. Morne also arranged for a truck to tow the vehicle away from the collision scene. The respondents were not bound to supply Mia with a courtesy vehicle after the collision because an insured can elect to take out insurance for that eventuality.

24. Santam elected to write the vehicle off for a settlement amount of R86 710.00 but only paid the respondents an amount of R70 890.90, which resulted in a shortfall of R15 819.10. Mia is responsible for the shortfall but the respondents elected to write the shortfall off as a bad debt.

25. Britz clarified that an amount of R950.00 was included in the monthly instalments of R3 492.17 to cover the warranty, roadside assistance, registration and insurance costs. If Mia had entered into an early settlement with the respondents by purchasing the vehicle in full then the R950.00 would have fallen away.

ANALYSIS

AND RELEVANT STATUTORY PROVISIONS

26. Mia did not formulate her case against the respondents clearly on the papers within the ambit of the CPA. Although Ally assisted her at the hearing he is not a lawyer. Nevertheless the Tribunal is satisfied that at the heart of Mia's complaint is that the second respondent sold Mia a vehicle with a defective engine.

27. The CPA defines "prohibited conduct" as "an act or omission in contravention of this Act". This Act is the CPA. Section 55 of the CPA deals with a consumer's right to safe, good quality goods. More specifically, subsections 55 (2) (a) and (b) respectively give to a consumer the "right to receive goods that are reasonably suitable for the purposes for which they are intended" and "are of good quality, in good working order and free of any defects".

28. Section 56 of the CPA deals with implied warranty of quality. Subsection 56 (1) provides that where there is an agreement pertaining to the supply of goods there is an implied provision that the retailer, amongst others, warrants that the goods comply with the requirements and standards contemplated in section 55. Subsection 56 (2) gives the consumer the right to within six months after taking delivery of the goods to return the goods to the supplier, and if the requirements and standards contemplated in section 55 are not met then the supplier must without imposing a penalty and at the supplier's risk either under subsections 56 (2) (a) or (b) respectively "repair or replace the defective goods" or "refund the consumer the price the consumer paid for the goods".

29. Subsection 56 (3) goes further and provides, amongst other things, that if the defect has not been remedied within a period of three months after the repair envisaged in subsection 56 (2) (a) then the supplier must either "replace the goods" or "refund the consumer the price paid by the consumer for the goods".

30. The evidence taken as a whole reveals that Mia purchased the vehicle from the second respondent in terms of a rent to own agreement. She paid the respondents a total amount of R27 376.51 that comprised an administration fee, deposit, pro rata September instalment and the October, November and December monthly instalments. The vehicle's engine, particularly the clutch and gearbox, gave problems from the outset. The respondents therefore commissioned what Britz referred to as an outside professional to repair the vehicle, which was involved in a collision within a matter of hours after Ally had collected the vehicle from the outside professional.

31. The Tribunal is satisfied that Mia was entitled under section 55 (2) (a) to receive a vehicle free of defects. In the face of Mia not receiving the vehicle free of defects and within six months after delivery of the vehicle, the respondents were at Mia's discretion bound by section 56 (2) (a) or (b) to respectively either repair or replace the defective vehicle or refund Mia that part of the purchase price she had paid to the respondents in terms of the agreement.

32. Since Mia elected to have the vehicle repaired the Tribunal is persuaded that the respondents complied with their obligation under section 56 (2) (a) by repairing the vehicle. If the vehicle had not been involved in the collision then Mia would have had the benefit of the repairs. Alternatively had the collision not occurred and the defects not been remedied within a period of three months after 29 November 2013 only then in terms of section 56 (3) would Mia have been entitled to exercise her right to have the respondents either replace the vehicle or refund her that part of the purchase price she had paid for the vehicle.

33. Consequently it does not help Mia or Ally to argue as they did at the hearing of this application that they should be refunded the full amount they had paid to the respondents because the vehicle was defective and they were inconvenienced while the vehicle was being repaired. In any event, it emerged at the hearing that the respondents gave Ally a bakkie and a Diahatsu courtesy car to use for a substantial portion of the time that the vehicle was being repaired. Moreover, on Ally's own version he did not suffer much financial loss in the absence of having been able to use the vehicle.

34. Ultimately, Mia seeks to unjustifiably place herself in a better position than she would have been had the vehicle not been involved in the collision or had she paid for the vehicle in full and insured it. In the latter event Mia would have been in an even worse position had she not insured the vehicle at all.

CONCLUSION

35. It follows that Mia has not discharged the onus borne by her that the respondents' actions amounted to prohibited conduct as envisaged by the CPA. This application must therefore fail.

ORDER

36. Accordingly:

36.1. This application is dismissed; and

36.2. There is no order as to costs.

DATED AT CENTURION ON THIS 11TH DAY OF NOVEMBER 2017

___

TREVOR

BAILEY

Tribunal member

With Professor Tanya Woker and Ms Hazel Devraj concurring.

Mia.CarKing.29083F