National Consumer Commission v Ferhaad N.O. and Others (NCT/322185/2024/73(2)(b)) [2024] ZANCT 20 (18 July 2024)

National Consumer Commission v Ferhaad N.O. and Others (NCT/322185/2024/73(2)(b)) [2024] ZANCT 20 (18 July 2024)

The Tribunal found that the respondents contravened sections 48(1)(a)(ii) and 48(1)(c) of the Consumer Protection Act by including exclusionary clauses in the sale agreement that required the consumer to waive statutory rights and absolved the supplier from liability. These terms were unfair, unreasonable, and unjust, defeating the purposes of the Act. However, the Tribunal was not satisfied, on a balance of probabilities, that the applicant proved the vehicle was defective at the date of purchase as required by section 55(2)(b). The evidence indicated the consumer contributed to the engine failure by not heeding warning lights and failing to maintain the cooling system. The Tribunal...

Citation
[2024] ZANCT 20
Parties
Applicant: National Consumer Commission; Respondent: Omar Ismail Ferhaad N.O.; Respondent: Ebrahim Jalalpor Havabibi N.O.; Respondent: Omar Ismail Irshad N.O.; Respondent: Farhad Omar Ismail Trading Trust t/a Squad Cars
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
18 July 2024
Case Number
NCT/322185/2024/73(2)(b)
Procedural Posture
Review Application / Final Judgment After Hearing
Outcome
The Tribunal declared that the respondents contravened sections 48(1)(a)(ii) and 48(1)(c) of the Consumer Protection Act, constituting prohibited conduct, and imposed an administrative fine of R100,000.00, jointly and severally.
Judges
M Peenze, C Sassman, A Potwana
Legal Topics
Consumer Protection Act, Unfair Contract Terms, Administrative Fine, Trustee Liability, Implied Warranty, Prohibited Conduct
Commercial and Corporate Civil Procedure Consumer Protection Act Unfair Contract Terms Administrative Fine Trustee Liability Implied Warranty Prohibited Conduct

Case Brief

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Parties

National Consumer Commission

Applicant

Omar Ismail Ferhaad N.O.

Respondent

Ebrahim Jalalpor Havabibi N.O.

Respondent

Omar Ismail Irshad N.O.

Respondent

Farhad Omar Ismail Trading Trust t/a Squad Cars

Respondent

Procedural Posture

Review Application / Final Judgment After Hearing

Legal Issues

  1. 1 Whether the respondents contravened sections 48(1)(a)(ii) and 48(1)(c) of the Consumer Protection Act by including unfair, unreasonable, or unjust terms in the sale agreement.
  2. 2 Whether the respondents contravened section 55(2)(b) of the Consumer Protection Act by supplying goods not of good quality, in good working order, and free of defects.
  3. 3 Whether the Tribunal should impose an administrative fine for prohibited conduct.

Ratio Decidendi

The Tribunal found that the respondents contravened sections 48(1)(a)(ii) and 48(1)(c) of the Consumer Protection Act by including exclusionary clauses in the sale agreement that required the consumer to waive statutory rights and absolved the supplier from liability. These terms were unfair, unreasonable, and unjust, defeating the purposes of the Act. However, the Tribunal was not satisfied, on a balance of probabilities, that the applicant proved the vehicle was defective at the date of purchase as required by section 55(2)(b). The evidence indicated the consumer contributed to the engine failure by not heeding warning lights and failing to maintain the cooling system. The Tribunal...

Court Disposition

The Tribunal declared that the respondents contravened sections 48(1)(a)(ii) and 48(1)(c) of the Consumer Protection Act, constituting prohibited conduct, and imposed an administrative fine of R100,000.00, jointly and severally.

Orders

  • The respondents have contravened sections 48(1)(a)(ii) and 48(1)(c) of the Consumer Protection Act.
  • The respondents' contraventions are declared prohibited conduct.