Mogale v Fazel t/a Auto City Spares (NW19/2021) [2022] ZACONAF 26 (18 October 2022)

IN

THE CONSUMER

AFFAIRS COURT FOR

THE NORTH WEST PROVINCE,

HELD

AT RUSTENBURG

CASE NO: NW19/2021

In the matter between: -

MR

ISAAC

MOGALE PLAINTIFF

And

MR RASHAAD FAZEL t/a

AUTO CITY

SPARES DEFENDANT

CORAM: K J P KGOMONGWE (T J Rakoka and M L Kortjas Concurring)

In Summary : Allegations of failure to deliver goods that are free from Defects, of good quality, and in good working order.

Result : Consumer

agreement cancelled, and Defendant ordered to refund the consumer.

JUDGMENT

(1)

INTRODUCTION

1.1 This matter concerns the purchase and delivery of a Volkswagen 1.8T Golf Engine. The Defendant is a supplier and is selling motor vehicle parts. The Consumer, Mr Isaac Mogale an adult male person resides at Seraleng Rustenburg in North West Province.

1.2 The Plaintiff case against the Defendant is to the effect that he purchased an engine from the Defendant and that the Defendant failed to supply the engine that is of good quality, in good working order and free of defects. Notwithstanding being afforded an opportunity to remedy the defects, the Defendant failed to supply the goods that are reasonably suitable for purposes for which they are generally intended.

(2)

FACTUAL MATRIX

A brief background on the consumer agreement between the Plaintiff and the Defendant is as follows:

2.1 The Plaintiff purchase a 1.8T Golf Engine from the Defendant on 17th March 2021 and paid a deposit of R5000.00 later paid the balance of R10.000.00.

2.2 The engine was delivered on 18th March 2021 but when tested, it was discovered that it was defective and not in good working order.

2.3 The engine was returned on 19th March 2021 and Plaintiff demanded cancellation of the contract and refund of the monies paid

2.4 The Defendant received back the engine and instead offered to replace the defective engine and further undertook to fit the engine on the Plaintiff's motor vehicle which he was afforded an opportunity to rectify and remedy the defective performance which yielded no success.

2.5 The matter having been reported to the Office of the Investigation of Unfair Business Practice in the North West Province. There is a consensus of opinion in regard to the fact that the engine cambelt was not in alignment and the only dispute by the expert is that the cambelt will not fall off and shear as he used silicon on the pulley to align the cambelt hence it will not fall off whereas the Plaintiff's expert dispute this averment by pointing out various defects as recorded in his findings.

2.6 Upon evaluation of the evidence it is evident that the Plaintiff purchased a manual engine, and the Defendant delivered an automatic engine which is contrary to the parties' agreement. It is further evident that the cambelt fitted on the engine was not aligned as secondhand parts that were fitted, and the Defendant further expects the Plaintiff to supply them with his other secondhand parts which the Defendant could not supply.

2.7 In the circumstances there is no doubt that the Defendant supplied defective goods to the Plaintiff and same cannot be regarded as goods solicited goods for purposes of the Act.

2.8 It follows that the Defendant is in breach of the contract entered into between the parties.

The following order is made:

(3)

ORDER

3.1 The matter is by agreement between the parties postponed to 09th December 2021 in order to afford the Defendant the opportunity to:

3.1.1 replace the defective engine and install and deliver same to the Plaintiff.

3.1.2 parties are warned to appear before the court on 25th December 2021.

3.1.3 No order to costs was made.

3.2 On 25th December 2021 all parties were present, Plaintiff being represented by the Consumer Protector Mr. Letsogo and Defendant represented by Mr. Mahomed Haroon. The case was postponed for a hearing to 02nd February 2022. As the court was informed the dispute has not been resolved.

(4)

DISCUSSIONS

Plaintiff's Case

4.1 The matter proceeded to trial on 02nd February 2022 and the Plaintiff, Mr Isaac Mogale testified that he purchased the 1.8T Golf engine from the Defendant on 17th March 2021 and paid R5000.00 and he further on 17th March 2021 paid the balance of Rl0 000.00 to Defendant and the engine was delivered to him on the 18th March 2021, but when tested it was discovered that it was defective and not in good working order. The engine was delivered back to the Defendant, and he demanded cancellation of the contract and refund.

4.2 The Defendant offered to replace the engine and further offered to install the engine on to the motor vehicle. The Plaintiff testified that on these occasions he was communicating with one Faizel and Chris at the Defendant's business premises.

4.3 It transpired during the testimony that the engine delivered to the Plaintiff was an automatic engine and the Defendant modified same to fit and function on the vehicle. Upon being returned and delivered to the Plaintiff when test driven it was not in a good working condition as it was cutting off, the engine switched off, the vehicle lacked power and the gear lever was tight and ultimately the gear lever broke.

4.4 The motor vehicle was again returned to the Defendant to remedy the defects where it was discovered that the cambelt was too small and later it was also discovered that the motor vehicle locks and ignition was removed and Defendant further undertook to replace the locks and remedy the defects to no avail.

4.5 William Johannes Andrian Dekker was called as the second and an expert witness in the Plaintiff's case and he testified that he inspected the motor vehicle at the Defendant's premises at Auto City Spares.

4.6 He compiled an expert report and finding were the same and accepted as evidence with the following findings:-

4.6.1 The engine on the vehicle has been worked on previously.

4.6.2 A secondhand throttle body was fitted to the engine as the aluminium from the intake manifold and aluminium of the throttle body differ in colour.

4.6.3 The alignment from the crank cambelt gear is out of alignment ±_1cm which will cause the cambelt to shear and will cause damage to the engine as this is a high performance turbo engine.

4.6.4 The mechanic who fitted the engine did not put the water hose clamp back to its original position to clamp the two water pipes where it connects.

4.6.5 The water pipe which is not clamped correctly will cause the engine to overheat as the coolant must be under pressure.

4.6.6 The vehicle is in a very bad condition with a scrap value of + Rl5 000,00 as per dealer.

4.6.7 Wiring on the engine compartment is in a very bad condition.

4.6.8 Wiring on the expansion bottle to regulate water level, was also in very bad condition.

4.6.9 The non-alignment of the cambelt is an indication that the engine was assembled using different secondhand engine parts.

Defendant's Case

4.7 The Defendant in their case presented evidence of Mr. Faizel Africa who was in the employ of the Defendant as a salesperson.

4.8 He confirmed that he sold the engine to the Plaintiff, and at the time of sale he did not have stock and had to order the engine, which he did order after receiving payment.

4.9 He confirms that the Plaintiff returned the engine complaining of defects therein and he undertook to obtain a replacement engine for the Plaintiff though the plaintiff indicated that he demanded cancellation of the agreement and refund.

4.10 He informed the Plaintiff that where they purchased the engine, they will not be able to get their refund hence the offer to replace and install the engine for the Plaintiff. Alternatively, he offered the Plaintiff a credit note wherein they would not refund him but instead he may come and buy parts to the value of the amount he paid to them which the plaintiff did not accept, and the parties opted for the replacement of the engine and for Defendant to fit the engine.

4.11 The Defendant received the engine and fitted it into the Plaintiff's vehicle whereafter it was test driven with the mechanic on the N4 road before Koster for about + 15km whereafter they handed the vehicle to the Plaintiff and made him sign a letter that he tested the vehicle and is aware that the gear lever was broken and the Defendant made additional effort to get it fixed and he is satisfied

and the vehicle is running smoothly. Same was accepted on record as Exhibit "C'.

4.12 Under cross examination by the Consumer Protector it came forth and the witness conceded that he was not present when the motor vehicle was test driven and further indicated their mechanic, Mr. Faizel indicated that the timing belt had to be replaced and further that he could not attest to whether same was remedied as he was hospitalized for some time and could not attest further to the condition of the replaced modified engine.

4.13 It also came further under cross examination of the witness that Mr. Mogale purchased a manual engine and was supplied with an automatic engine which was then modified into his vehicle. According to him no modification of the engine or parts had to take place.

4.14 The Defendant further called their expert witness/mechanic Mr. Chris Tricot Mchemo who testified that he is a mechanic employed at City Auto Spares and he is the person that had worked on Plaintiff's motor vehicle and fitted the engine and the parts on the vehicle.

4.15 After completing his job, he tests drove the vehicle with the Plaintiff on the N4 Koster road and the Plaintiff was satisfied with the vehicle though he brought the vehicle back where he later fitted a new petrol pump and noticed that the cambelt was not properly aligned and informed the Plaintiff that they may not be anything wrong with same as this was as a result of the modifications done on the vehicle, further that if there was some defects the cambelt would have fallen off during the test drive.

4.16 Under cross examination by the Consumer Protector, Mr. Mchemo denied compiling the expert report filed by the Defendant on the discovered documents. He further conceded and confirmed that the conclusions and findings by the Plaintiff's experts are correct safe to deny that the cambelt will not move/fall off as he had used silicon and a guide to the cambelt pulley not to miss align and fall off. He further admitted that he omitted to put the water hose clamp which may lead to water leakage which may cause the engine to overheat.

4.17 The Defendant expert witness further conceded that the engine pulley was not properly aligned as the second hand supplied pulley was slightly small and that he asked the Plaintiff to supply some other parts including the mounting brackets pulley, manifold as they are different and thus the pulley could not be properly aligned which the Plaintiff failed to purchase and supply.

(5)

URGUEMENTS

5.1 At the conclusion of the trial the Consumer Protector submitted that they made a case for defective performance by the supplier warranting cancellation of the contract and refund of the complainant's monies

5.2 On the contrary the Defendant argued that they duly complied with that contract obligations and that the Plaintiff's case be dismissed.

(6)

EVALUATION OF THE EVIDENCE AND APPLICABLE LAW

6.1 From the evidence presented it is common cause and cannot be disputed that a contract was concluded between the parties for the purchase of a 1.8 Golf Engine manual engine; and

6.2 The defendant supplied the engine that was defective and later undertook to remedy the defective engine by replacing it notwithstanding the consumer having exercised the option to cancel the agreement and demand refund the monies paid.

Section 55 CPA

6.3 Section 55.(1) This section does not apply to goods bought at an auction, as contemplated in section 45.

6.4 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; 106 5 10 15 20 25 30 35 40 45 50

(b) are of good quality, in good working order and free of any defects;

(c) will be useable and durable for a reasonable period,

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

(3) In addition to the right set out in subsection (2)(a), if a consumer has specifically informed the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier-

(a) ordinarily offers to supply such goods; or

(b) acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

(4) In determining whether any particular goods satisfied the requirements of subsection (2) or (3), all of the circumstances of the supply of those goods must be considered, including but not limited to-

(a) the manner in which, and the purposes for which, the goods were marketed, packaged and displayed, the use of any trade description or mark, any instructions for, or warnings with respect to the use of the goods;

(b) the range of things that might reasonably be anticipated to be done with or in relation to the goods; and

(c) the time when the goods were produced and supplied.

(5) For greater certainty in applying subsection (4)-

(a) It is irrelevant whether a product failure or defect was latent or patent, or whether it could have been detected by a consumer before taking delivery of the goods; and

(b) a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.

(6) 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.

Section 56 (2) A Consumer may within 6 month

6.5 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 5 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.

Section 57

6.6 (1) A service provider warrants every new or reconditioned part installed during any repair or maintenance work and the labour required to install it for a period of three months after the date of installation or such longer period as the supplier may specify in writing.

(2) A warranty in terms of this section-

(a) is concurrent with any other deemed, implied or express warranty;

(b) is void if the consumer has subjected the part, or the goods or

property in which it was installed, to misuse or abuse; and

(c) does not apply to ordinary wear and tear, having regard to the circumstances in which the goods are intended to ordinarily be used.

6.7 On the evidence presented, it is evident that the Defendant supplied the Plaintiff with a defective engine and from the evidence of both the Plaintiff and the Defendant's expert/mechanic's evidence, it is evident that the delivered engine cannot be deemed to be free from any defects as amplified in both the expert/mechanic's reports as evidence.

6.8 The goods delivered are not as per Plaintiff's order and request thus the standards as set out in terms of the CPA in Section 55 (l)(b) that the goods supplied ''are of good quality, in good working order and free from any defects “have not been met with 55(l)(C) will be usable and durable for 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.

6.9 It is not disputed that the Plaintiff ordered and purchased from the Defendant a manual engine and he was supplied with an automatic

engine which the Defendant fitted onto his vehicle.

(7)

CONCLUSION

All the above having been considered, the following judgment is hereby given.

7.1 The consumer agreement between the Plaintiff and the Defendant is ordered cancelled.

7.2 The Defendant is ordered to immediately pay the amount of R15 000.00 to the Plaintiff together with interest at the prescribed rate from date of this judgment to the date of final payment.

7.3 The already supplied engine is declared to be unsolicited goods in terms of Section 21 of the Consumer Protection Act, and is placed at the risk of the Defendant who must collect from the Plaintiff against the payment of R15 000.00 to the Plaintiff.

7.4 The Plaintiff is ordered to surrender the engine to Defendant upon receipt of payment as stipulated in order No.3.

7.5 Cost of the enforcement of this order in a competent court is ordered.

DATED

AT RUSTENBURG

ON THIS THE 18th October 2022.

KJP

KGOMONGWE

CHAIRPERSON

PLAINTIFF: Isaac Mogale

Represented by office of Consumer protector:

Office of investigating of unfair business practices.

Nwdc Building

Cnr University Drive & Provident Street

Mmabatho

Defendant: Mr Rashaad Fazel T/ A Auto Spares

72 Kerk Straat, Rustenburg