Miya v Nissan SA (Nissan South Africa (Pty) Ltd and Others (286461/2023/75(1)(b)) [2024] ZANCT 70 (5 December 2024)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: 286461-2023-75(1)(b)

In the matter between: THOKOZILE EDITH MIYA APPLICANT and NISSAN SA (NISSAN SOUTH AFRICA (PTY) LTD) FIRST RESPONDENT NISSAN BB HATFIELD (VALULINE 178) (PTY) LTD) SECOND RESPONDENT NISSAN KEMPTON PARK (IC AUTO KEMPTON PARK CFOA MOTORS (PTY) LTD THIRD RESPONDENT

Coram: Ms Z Ntuli: Presiding Tribunal member Mr S Hockey: Tribunal member Ms Phumla Manzi-Ntshingila: Tribunal member

Date of hearing: 2 December 2024

Date of judgment: 5 December 2024

JUDGMENT AND REASONS

THE PARTIES

1. The applicant is Thokozile Edith Miya (the applicant). The applicant is a consumer as defined in section 1 of the Consumer Protection Act 68 of 2008 (the CPA). Mr. Buhle Makhubu of Nkosi Attorneys represented the applicant.

2. The first respondent is Nissan South Africa (Pty) Ltd (the first respondent). The first respondent is a vehicle dealer and supplier, as defined in section 1 of the CPA. Adv. Hendrik Pretorius, instructed by Werksmans Attorneys, represented the first respondent.

3. The second respondent is Nissan BB Hatfield (Valuline 178) (Pty) Ltd) (the second respondent). The second respondent is a vehicle dealer and supplier, as defined in section 1 of the CPA. Mr. Andre Lemmer, Dealer Principal, represented the second respondent as an observer in the proceedings.

4. The third respondent is Nissan Kempton Park (IC Auto Kempton Park CFOA Motors (Pty) Ltd (the third respondent). The third respondent is a vehicle dealer and supplier, as defined in section 1 of the CPA. Ms. Michelle Germishuys, the Dealer Principal, represented the third respondent.

TERMINOLOGY

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

APPLICATION TYPE

6. This is an application in terms of section 75(1)(b), which the applicant referred to the Tribunal, with leave granted by the Tribunal. The applicant alleges that the respondents contravened the provisions of the CPA by failing to remedy the alleged defects identified in the vehicle, refusing to replace the engine and not performing the repairs timely.

BACKGROUND

7. The applicant, Ms. Thokozile Miya, asserts that she purchased a Nissan Juke (the vehicle) from the second respondent in June 2016. Within three months of the purchase, she detected defects in the vehicle’s start-and-stop function and instrument cluster. She reported these to the second respondent, who failed to address them. To mitigate the problem, she purchased a new battery, temporarily improving the situation. However, the defects reappeared approximately ten to eleven months later. She recently became aware of a recall by Nissan for this model, which reportedly involved a faulty electronic control unit (ECU). She believes the ECU

defects were the cause of the ongoing issues with her vehicle.

8. In January 2022, she took her vehicle to the third respondent for servicing, including an oil change for the 105,000-kilometer interval. After travelling approximately 5,500 kilometres, the vehicle began emitting a grinding noise. She returned the vehicle to the third respondent in November 2022. The third respondent informed her that the vehicle had little to no oil, resulting in engine seizure. She questioned how the vehicle could have no oil despite the January 2022 service. Also, no warning light was illuminated to signal the oil deficiency, and there was no evidence of an oil leak. She suspected the third respondent did not replace the oil during the January 2022 service. She also claims the third respondent deceitfully claimed to have serviced the vehicle when such was false.

9. She said that contrary to the engineer’s advice to replace the engine, the third respondent opted for repairs. The initial quote was R36,421.61, but the final invoice from the third respondent amounted to approximately R62,963.62. The warranty provider, Innovation Group, approved R45,000.00, leaving a shortfall of R17,963.62. The third respondent demanded this from the applicant,

who refused, insisting that the third respondent take full responsibility for the costs. Consequently, the third respondent withheld her vehicle.

10. She lodged a complaint with the first respondent as a brand, requesting intervention to hold the third respondent accountable for the full repair costs. She said the first respondent failed to resolve the issue amicably. After unsuccessful complaints to the Motor Industry Ombudsman of South Africa and the National Consumer Commission, she filed the direct referral application with the Tribunal on 13 September 2023. Soon after, the third respondent wrote off the outstanding R17,963.62 and released the vehicle.

11. According to the applicant, the repairs, initially promised for January 2023, were only completed in July 2023. No reasonable explanation was provided for why the repairs were delayed. After repairs were completed, the vehicle remained withheld until September 2023. This caused severe inconvenience and added costs as she stayed without her vehicle. She said the third respondent also kept the vehicle in an unsecured area, causing damage to the paintwork.

12. The applicant alleges contraventions of sections 41, 51, 54, and 57. She seeks an order directing the replacement of the vehicle’s engine with a new one, repair of scratches and paint damage incurred during the prolonged delay, and reimbursement for additional expenses arising from the delays. The first and third respondents opposed the application, while the second respondent did not file an answering affidavit. The hearing took place virtually via MS Teams.

THE APPLICANT’S SUBMISSIONS

13. The applicant’s submissions are captured comprehensively in the background above. In addition, the applicant explained that the application was brought against the three respondents because the first respondent was the manufacturer, the second respondent was the seller, and the third respondent was the service provider and repairer of the vehicle. Specifically, the first and second respondents are relevant for the manufacturing defects that caused her problems with the vehicle. These defects were reported to the second respondent, who failed to address them or to notify her. She was also not notified of the recall of this model around 2017/2018 due to a defect.

14. Regarding the repairs, the applicant said the third respondent opted to repair instead of replacing the engine, which repairs were not done in a timely manner and to a good quality standard. No reasonable explanation was provided for the delayed repairs and the decision to write off the R17,963.62 cost. In addition to the remedies she mentioned in her submission, she wants the third respondent to refund her the R45,000.00 that Innovation Group paid for the repairs. The applicant stated that the first respondent was cited to ensure accountability by the third respondent for the repairs.

FIRST RESPONDENT’S SUBMISSIONS

15. The first respondent contends that it has been incorrectly cited in this matter, as the applicant’s complaint pertains to quotations and services rendered outside the scope of its involvement. The applicant relies on sections 41 for different quotes given, section 54 for the service performed to her vehicle, and 57 for the service warranty provided, none of which involve the first respondent. As a manufacturer, the first respondent asserted that no claim or evidence has been presented alleging manufacturing defects.

16. The first respondent said the applicant’s only justification for citing the first respondent, as stated in the founding affidavit, is that the first respondent, as the brand owner, is responsible for holding the third respondent accountable. In response, the first respondent demonstrated that, while not obliged, it engaged the third respondent on multiple occasions to facilitate the resolution of the dispute. No contravention is alleged under the CPA against the first respondent.

The first respondent argues that this incorrect citing has caused unnecessary legal costs, which should not go unaddressed. It requests the Tribunal to order the applicant to pay its costs, including the costs of counsel.

THIRD RESPONDENT’S SUBMISSIONS

17. The third respondent acknowledged that it serviced the applicant’s vehicle in January 2022. However, it denies the applicant’s allegation that it failed to add oil during this service, asserting that such negligence would have caused the engine to seize long before November 2022, when the applicant returned the vehicle. Upon the vehicle’s return in November 2022, Innovation Group, the warranty provider, instructed the third respondent to procure a DEKRA report to ascertain the cause of the problem. According to the DEKRA assessor, the problem arose due to normal wear and tear, specifically the overbuilt condition of the sleeves, which caused oil to bypass the rings. This led to insufficient lubrication and a noisy timing chain. The report identified this as a common problem with HR82DTT Nissan engines.

18. The third respondent acknowledged that repairs were warranted. However, delays occurred as the initial engineering service provider could not source oversized pistons. To mitigate the delay, the third respondent transferred the vehicle to another service provider, Rutland Motor Engineering, which sourced the required parts and completed the repairs. The vehicle repairs were completed in July 2023. The repair costs included engineering services and additional services performed by the third respondent, such as stripping and reinstalling the engine. The applicant was liable for a balance of R17,963.62 because the warranty did not cover all costs. Hence, the third respondent withheld the vehicle until payment.

19. Subsequently, the third respondent discovered that its service manager had failed to obtain the applicant’s written authorisation for the repairs and decided to waive the outstanding amount. The vehicle was released to the applicant in September 2023. The third respondent said that, around December 2023, the applicant had raised concerns about engine noise and the air conditioning system. The third respondent offered to address these issues, as the one-year warranty covered the repairs. However, the applicant has not returned the vehicle for further assessment or repairs.

CONSIDERATION OF THE EVIDENCE

20. The panel notes that the applicant's case against the three respondents rests on three grounds: section 54(1) concerning the quality of service rendered, section 41 addressing discrepancies in quotations, section 51 regarding prohibited transactions, agreements, terms, or conditions, and section 57 involving warranty issues. In addition, she alleged manufacturing defects against the first and second respondents.

21. Regarding the first and second respondents, the panel finds that the applicant made no case for alleged manufacturing defects and contravention of sections 41, 51, 54, and 57. Specifically, defects are covered in sections 55 and 56. The vehicle in question was purchased in 2016, and the alleged defects were identified within the six-month implied warranty period. The applicant failed to act within this prescribed period. Furthermore, the statutory limitation imposed by section 116(1)(a)[2] precludes this panel from adjudicating complaints older than three years. As a creature of statute, the Tribunal lacks the authority to extend this limitation.[3] Consequently, the allegations must be dismissed.

22. The applicant’s allegations against the third respondent primarily relate to section 54(1). This section provides consumers' rights concerning services rendered by a supplier, namely, (a) timely performance and completion of services, with timely notice of any unavoidable delays; (b) services performed to a standard and quality that may reasonably be expected; (c) the use, delivery, or installation of goods of quality and free from defects if such goods are required for the service; and (d) the return of the consumer’s property in at least as good a condition as when it was provided, taking into account the circumstances and any specific agreements. The applicant asserts that the vehicle was not fully repaired. However, no evidence has been provided to demonstrate that the vehicle failed to perform optimally after the repairs. Similarly, there is no evidence that the engine required replacement or that sub-standard or defective parts were used during the repair process. Accordingly, the applicant has failed to substantiate her claims under sections 54(1)(b) and (c). These must be dismissed.

23. The third respondent admitted that the repairs were not completed in a timely manner. The respondent explained that delays arose due to difficulties in sourcing oversized pistons, necessitating the transfer of the vehicle to another service provider. However, no evidence was presented to demonstrate that the third respondent notified the applicant of these delays, as required under section 54(1)(a). Repairs spanned approximately eight months despite the promise that the vehicle would be done in January 2023. This is a substantial and unacceptable delay, aggravated by the lack of proper notice to the applicant. The panel finds that the third respondent contravened section 54(1)(a).

24. The third respondent further admitted withholding the applicant’s vehicle after repairs were completed, demanding payment of R17,963.62. Also revealed is that no pre- authorization of these additional costs was obtained from the applicant. Section 15(2)(a) stipulates that a supplier may not charge a consumer for goods or services unless an estimate meeting prescribed requirements has been provided and the consumer has authorized the work. The charge was unauthorized. The respondent, thus, unlawfully withheld the applicant's vehicle. The respondent’s actions regarding unauthorized charges contravened section 15(2)(a).

25. The panel is convinced that the vehicle was returned in a damaged condition. Contrary to the third respondent’s assertion that the vehicle was released on 12 July 2023, records indicate it was only released in September 2023, approximately ten months after the applicant brought it for repairs, during which the third respondent kept it in an unsecured area. After collection, the

applicant promptly reported concerns regarding damage to the bonnet and possible alignment issues. In an email dated 22 September 2023, the third respondent apologized for the delay and agreed to address these issues. Consequently, the third respondent contravened section 54(1)(d).

26. The panel noted that the repairs were covered under a one-year warranty. The third respondent was willing to address the damage and wheel alignment problem raised by the applicant on 22 September 2023. Further, the issues the applicant reported on 22 December 2023 were within the warranty period. The third respondent advised the applicant to return the vehicle so these problems could be assessed and addressed. The matter was before the Tribunal dispute, and the applicant has yet to return the vehicle. Therefore, the panel finds no evidence that the third respondent has failed to comply with the warranty provisions in section 57.

27. Having said the above, the panel is concerned that the third respondent disregarded the applicant’s consumer rights, depriving her of using and enjoying her vehicle without providing an alternative vehicle during the ten months. While the third respondent ultimately wrote off the payment and released the vehicle, this occurred only after the applicant had lodged a complaint with the Tribunal. The third respondent has shown no empathy for the applicant’s plight. Despite the unreasonable delay, no alternative vehicle was provided to ameliorate her troubles. Additionally, the third respondent unlawfully withheld the vehicle for a further period. Suppliers should not be permitted to undermine consumers’ rights in the CPA without repercussions.

28. The panel finds that the third respondent contravened section 54(1)(a) and (d) by delaying repairs and returning the vehicle in a damaged condition and section 15(2)(a) for demanding unauthorized charges from the applicant, resulting in her vehicle being withheld unlawfully for another two months. The third respondent’s actions amount to prohibited conduct. The panel finds no substantiation for the applicant’s claims against the first and second respondent.

29. In Coertze and Burger v Young,[4] the court affirmed that under section 75(4)(b), the Tribunal may issue any order contemplated under the CPA or sections 150 or 151. Section 4(2)(b)(ii)(bb) further empowers the Tribunal to issue appropriate orders upholding consumers’ rights to redress, including innovative orders that advance, protect, and promote these rights. Section 54(2) allows a consumer to require the supplier to either (a) remedy any defect in the quality of the services performed or goods supplied or (b) refund a reasonable portion of the price paid proportionate to the failure.

30. Considering the relief sought in this case, the panel noted that the third respondent had agreed to remedy the damage caused while the vehicle was in its possession, including the wheel alignment, as stated in the email of 22 September 2023. The panel also noted that the third respondent agreed to assess and address the issues in the email of 22 December 2023, which were reported within the warranty period. The applicant must return the vehicle to the third respondent to address these issues. The appropriate remedy would be for the third respondent to assess and repair these issues within a reasonable time.

31. The panel finds that the applicant is not entitled to a replacement engine, as there is no evidence that the vehicle is not functioning optimally, or a refund, as the warranty covered the repairs, and the third respondent wrote off additional costs. Further, the applicant’s request for reimbursement for delays constitutes a claim for damages outside the Tribunal’s jurisdiction. Under section 115, the applicant may seek redress in the appropriate court after obtaining a certificate from the Tribunal's chairperson.

32. The panel also considered the first respondent's cost order request and noted that the Tribunal's rules do not mandate legal representation, leaving this to each party’s discretion. While unsubstantiated, the applicant’s actions in citing the first respondent as the manufacturer of the alleged defective goods were not misplaced. No evidence suggests that the applicant acted vexatiously or frivolously. Accordingly, a cost order against the applicant is unwarranted.

ORDER

33. Accordingly, the panel makes the following order:

33.1 The applicant’s case against the first and second respondents is dismissed;

33.2 The third respondent has contravened sections 54(1)(a) and (d) and 15(2)(a);

33.3 The third respondent’s actions in contravening the above-mentioned sections constitute prohibited conduct;

33.4 The applicant must, within ten business days of this judgment, return the vehicle to the third respondent to assess and repair the vehicle as noted in the emails of 22 September and 22 December 2023;

33.5 The third respondent must, within thirty business days of receiving the vehicle from the applicant, assess and repair the applicant’s vehicle for issues noted in the emails of 22 September and 22 December 2023;

33.6 There is no cost order.

[Signed] Ms Z Ntuli

Presiding Tribunal member

Tribunal members Mr S Hockey and Ms Phumla Manzi-Ntshingila concur.

[1] Published under GN 789 in GG 30225 on 28 August 2007 as amended by GN 428 in GG 34405 on 29 June 2011, GN R203 in GG 38557 on 13 March 2015 and GN 157 in GG 39663 on 4 February 2016.

[2] Section 116(1) states that “A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after—

(a) the act or omission that is the cause of the complaint”.

[3] FirstRand Bank Ltd v Ludick A 277/2019 High Court of South Africa, Gauteng Division, Pretoria, 18 June 2020 (unreported) at para [16].

[4] NCT/7142/2012/73(3) & 75(b) & (2) CPA.