Nell v Andre Dreyer Motors (Pty) Ltd t/a Auto Bavaria (NCT/142333/2019/75(1)(b)) [2021] ZANCT 23 (15 June 2021)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD VIA ZOOM

Case Number: NCT/142333/2019/75(1)(b)

In the matter between:

TSEKO

ELIAS

NELL

APPLICANT

and

ANDRE DREYER MOTORS (PTY) LTD T/A AUTO BAVARIA

RESPONDENT

Coram:

Prof K Moodaliyar - Presiding Tribunal Member

Ms. H Alwar - Tribunal Member

Adv F Manamela - Tribunal Member

Date of Hearing: 11 May 2021

Date of Judgement: 5 June 2021

JUDGMENT

AND REASONS

THE PARTIES

1. The Applicant is Tseko Elias Nell; an adult male person ("the Applicant" or "Mr Nell"). The Applicant is a consumer as defined in section 1 of the Consumer Protection Act 68 of 2008 ("the CPA or the Act"). At the hearing; the Applicant represented himself.

2. The Respondent is Andre Dreyer Motors (Pty) Ltd t/a Auto Bavaria; a company that is duly registered in terms of the corporate laws of the Republic of South Africa with its registered address at the Corner of Allandale and Pretorius Roads, Waterfall Ridge, Gauteng ("Respondent" or "Auto Bavaria"). The Respondent was represented by Ms Heather Pretorius of Fiona Demarkcus Attorneys.

APPLICATION TYPE

3. This is an application in terms of Section 75(1)(b) of the Consumer Protection Act 68 of 2008. In this application, the Applicant, with leave granted by the Tribunal, seeks redress against the Respondent. The Applicant alleges breach of the Act on the basis that the Respondent allegedly failed to comply with the Applicant's request for a refund of the repairs to his vehicle in accordance with Section 54 of the Act.

BACKGROUND

4. On or about May 2017, The Applicant took his 2005 model BMW 525 to Auto Bavaria to "determine what needs to be fixed, repaired or replaced".[1] The Respondent provided the Applicant with a service quote of R61 662.16 (sixty one thousand, six hundred and sixty two Rands and sixteen cents) for repairs to his vehicle. He decided not to replace the tyres, and the quote was reduced to R42 986.64 (forty two thousand, nine hundred and eighty six Rands and sixty four cents). He paid the Respondent a deposit of R21 000.00 (twenty one thousand Rands). After receiving the vehicle back, a few days later; he experienced problems with the vehicle such as power loss; smoke emissions and the oil warning lights came on. He took the vehicle back to Auto Bavaria to sort out these problems. The process continued until October 2017, and he went back and forth at least eight times to the Respondent for further repairs. The total cost of repairs was R63 052.51 (sixty three thousand and fifty two Rands and fifty one cents).

5. Eventually, in September 2017, Auto Bavaria did a compression test on the vehicle. It found that the engine needed to be replaced at the cost of R220 000.00 (two hundred and twenty thousand Rands). The Applicant submits that Auto Bavaria should have done this test when it was brought in initially for an assessment. Had he been told the vehicle needed a new engine, he would not have spent all the money trying to repair the vehicle. Mr Nell wants a refund of all the money paid for the repairs; alternatively, he wants the car repaired to the state it was in when he brought in the vehicle. In addition, he wants to be reimbursed with the insurance premiums he paid for two years and the additional cost of commuting he incurred. He further wants to be compensated for general damages due to embarrassment and emotional stress.

6. On 25 January 2018, the Applicant lodged a complaint with the Motor Industry Ombudsman of South Africa (MIOSA). On 23 July 2018, MIOSA issued a recommendation stating that the Applicant did not submit any technical report supporting his allegations of bad workmanship.

7. The Applicant then lodged a complaint with the National Consumer Commission (NCC) on 6 August 2018. The NCC issued a notice of non-referral dated 4 October 2018. The letter accompanying the notice essentially stated that Mr Nell did not have expert evidence to support his claim.

8. Auto Bavaria submitted that it did all the work it was required to do. There was no reason for it to do a compression test on the vehicle. It was only at a late stage that the Respondent conducted the compression test, and the engine was found to be defective. The vehicle had already done 297 400 km when it was brought for repairs. Mr Nell had done approximately 5000km with the vehicle from the time it was repaired the first time until October 2017. Mr Nell is in possession of the vehicle, and it is not in use.

APPLICABLE SECTIONS

OF THE ACT

9. Section 75 Referral to Tribunal. Subsection 75(1)(b) reads as follows:

"If the Commission issues notice of non-referral in response to a complaint, other than on grounds contemplated in Section 116, the complainant concerned may refer the matter directly to –

(a) ……

(b) the Tribunal, with leave of the Tribunal"

10. Section 54 of the CPA deals with the Consumer's rights to demand quality service and states –

"(1) When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to—

(a) the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;

(b) the performance of the services in a manner and quality that persons are generally entitled to expect;

(c) the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services; and

(d) the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services,

having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services.

(2) If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either—

(a) remedy any defect in the quality of the services performed or goods supplied; or

(b) refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure."

THE HEARING

11. At the hearing, the Applicant reiterated that he took his vehicle to the BMW service centre because he wanted an overall assessment and would have liked to have enjoyed at least another three years of driving the vehicle. At the time, he was not experiencing any problems with the vehicle.

12. He was not satisfied with the service and repair of the vehicle and had to return at least eight times for further checks and repairs. The Applicant alleges that the performance of the car deteriorated during this time. The car was consuming quite a lot of oil, and there were issues with the coolant system as well, amongst others.

13. The initial diagnostic test and repairs invoiced on 5 June 2017, for which he paid R42 986.64, did not appear to solve all the issues with the vehicle. The Applicant soon returned to the Respondent, and on 28 June 2017 he was invoiced in the amount of R6061.07. On 21 July 2017 the Applicant was back at the Respondent and invoiced R3124.07 for work done on the vehicle. The Applicant experienced further issues with the vehicle, and on 15 August 2017, he was invoiced R3101.81 for the work done. On 12 September 2017, he was further invoiced R594.67. On the 27th September 2017, the Applicant returned to the Respondent, further repairs were done to the value of R2386.16. It was at this point that a compression test was done on the vehicle. The Applicant's last and 8th visit to the Respondent over the space of about four months was on 16 October 2017, and he was invoiced R843.37. The total costs of all these invoices during this time equates to R59 097.79.

14. The Applicant states that the compression test was only done on the 7th visit, and he believes it should have been done earlier on or at least when the vehicle was taken for its first diagnostic test. He was told that at this time, he would need to replace the engine, which would cost in excess of R200 000. According to the Applicant, the vehicle is currently with him and remains unused since October 2017.

15. The Applicant seeks an order for the Tribunal to compel the Respondent to refund all the money paid for the repairs; alternatively, he wants the car repaired to the state it was in when he brought in the vehicle. The Applicant was informed in the Tribunal's leave to refer judgment that his request for damages cannot be claimed in this forum. [2]

16. According to the Respondent, at the time the Applicant brought his 2005 BMW E60 525i Sedan NE62 for a service, it had a very high mileage of 297 400 kilometers with the vehicle being approximately 12 years old.

17. There is a dispute of fact as to whether the vehicle had a full service history at the time. The Respondent indicated that it was not available, and the Applicant argued that the service history book was in the car. No documentation of service history was produced in evidence.

18. The Respondent disputes that there was nothing wrong with the vehicle when the Applicant brought it in the first time. The diagnosis and analysis of the vehicle revealed various parts that needed to be repaired. This is evidenced by the service estimates provided to the Applicant. Also, the Respondent states that it would never have given any undertakings to the Applicant that the vehicle had another 2 to 3 years of longevity and would not have created that expectation.

19. The Respondent indicated that given the age of the vehicle, its high mileage and normal wear and tear, items of concern for example, oil leaks were expected. They also indicated that the suspension was in a bad condition.

20. The Respondent argued that the vehicle had an oil leak which was repaired, and subsequent to that, the cooling system was repaired, which was expected due to the age and mileage of the vehicle.

21. Between 12 August 2017 and 12 September 2017, the Applicant drove about 2000km. The Applicant complained to the Respondent about the oil consumption again. There was no visible oil leak and the repairs done earlier on were still intact. The Respondent suspected there might have been a problem with the engine, and a compression test was done. The Respondent argued that the oil consumption was due to the problem with the engine, and it had not been related to the previous oil leak. It was discovered in September 2017, after the compression test was done at this stage, that this was possibly the reason why there was no power in the engine, which needed to be replaced.

22. The Respondent denies that it would have known that the issue of the oil consumption was an internal problem (as opposed to the oil leak) which could have manifested later. The Respondent argues that it could not have foreseen this mechanical failure. According to the Respondent, the diagnostic test is based on the existing technology of the vehicle and with a vehicle that is 12 years old, it would not have the latest, updated technology, and it, therefore, would not have been able to pick up the faults with the engine.

23. In the premise, the Respondents submit that the Applicant is not entitled to the relief sought in terms of the Act. The Respondents ask that the application be dismissed by the Tribunal.

ISSUES TO BE DECIDED

24. The Tribunal has to decide whether the Applicant is entitled to claim a refund for the repairs done to his vehicle or whether it should be repaired to its initial state when the Applicant took the vehicle to the Respondent the first time.

CONSIDERATION OF

MERITS

25. The Applicant genuinely appeared to believe that if he took in his car for a diagnostic, he could maintain the vehicle to achieve about 2 to 3 years of driving longevity. However, ever since the first visit to the Respondent, he had to keep returning to get further repairs done.

26. It is in dispute as to whether the Applicant had a full service history for the vehicle. The Applicant stated that the service book was in the vehicle, which the Respondent denies. No evidence of the service history book was produced before the Tribunal.

27. When the Applicant took in his vehicle for the diagnostic test in June 2017, and after paying R42 986.64, he would have expected his vehicle to drive smoothly. Instead, he incurred multiple problems after this, and it was only on his 7th visit to the Respondent when the compression test was done, and he was told to replace the engine.

28. As indicated by MIOSA and the NCC, the Applicant did not produce any expert report to substantiate his claims. There was also no expert report or testimony by the Respondent either. Therefore, the only evidence the Tribunal can rely on is the invoices and descriptions of the service and repairs done to the Applicant's vehicle.

29. Looking at the evidence led as a whole, on various occasions during the seven visits, the Respondent had to attend to the problem of oil consumption/leakage and coolant issues. It is reasonable to believe that the repairs relating to the oil consumption/leakage and the coolant issues should have been resolved the 1st time that the vehicle was repaired, instead of the Applicant having to return to the Respondent on numerous occasions to have the same related repairs done. Therefore, the Applicant was not fully satisfied with the service rendered.

30. There was no evidence introduced by the Respondent; documentary or otherwise, upon which the Tribunal can rely, to prove that the compression test could not have been done earlier or that the diagnostic test would not have picked up the fault with the engine.

CONCLUSION

31. The Tribunal finds following a careful reading of Section 54 (1)(b), (c) and (d) of the Act that the oil and coolant service and repairs conducted on the vehicle did not comply with the requirements of the Act in that the vehicle repairs was not conducted in a "manner and quality that persons are generally entitled to expect; that the vehicle was not "free of defects of a quality that person are generally entitled to expect" after multiple visits to the Respondent and that after conducting the diagnostics and subsequent service and repairs that up the return of the vehicle to the Applicant it would have been in "at least as good a condition as it was when the consumer made it available to the supplier for the purposes of performing such services" and the Applicant stated that he believed the car had performed better before he had taken it to the Respondent for the diagnostic tests and subsequent visits.

32. The Tribunal finds further that the Applicant is entitled in terms of section 54(2)(a) and (b) to request that the Respondent remedy any defect in the quality of the services performed or be request a refund to the Applicant, a reasonable portion of the price paid for the services performed, having regard to the extent of the failure. Without proper expert reports, it would not be possible to grant a decision to repair the vehicle to the state it had originally been in May 2017, before its first service by the Respondent. The Tribunal has taken cognisance of the fact that even after eight sets of repairs to the vehicle; the Applicant still experienced problems with the vehicle. . It makes sense that the Applicant was not satisfied with the repairs as the performance of his vehicle deteriorated during this time.

33. Based on the provisions of the Act and the evidence led:

33.1 The Tribunal agrees with the Applicant that the Applicant is entitled to a partial refund of the repairs done on the vehicle, which is based on the following items extracted from the invoices billed to the Applicant, some items having been repeated each time the Applicant returned the vehicle for repairs:

Invoice no: 50247611 05/06/2017 Description Amount R Vehicle inspection 1245.91 Service-standard scope 146.58 Engine oil service 219.87 Removing and installing/sealing cylinder head cover 1868.87 Removing and installing or replacing both gas pressure props for engine hood 73.29 Diagnosis and inspection 830.61 Performing vehicle tests 146.58 052731/Profile Gask 467.28 Set of Gasket 160.09 Gasket Ring 35.93 Gasket E90 346.26 SCR Plug Wit 60.59 Mech Belt TE 1639.32 052948/Water Hose E 527.79 Set Alu Screw 315.21 Invoice no: 50248591 28/06/2017 Removing and installing or replacing coolant expansion tank 325.73 Replacing engine – pipe 814.32 Draining coolant and filling a radiator 407.16 Charging battery 81.43 Sundry/consumables 95.00 054352/Expansion 1A 1785.10 054352/Radiator cap 209.89 054352/Vent Pipe E4 1047.55 BMW Coolant Antifree 164.98 Invoice no: 50251547 21/07/2017 Bleeding and checking cooling system for leaks 407.16 Checking cooling system for leaks 162.86 Sundry/consumables 95.00 Diagnosis and inspection 488.59 055357/Temperature 528.41 BMW Coolant Antifree 162.85 Replace coolant temperature sensor 162.86 Invoice no: 50256007 12/09/2017 Performing vehicle diagnosis-test module 439.74 LL01 BMW Oil 5W-30 81.90 Invoice no: 50257174 27/09/2017 Checking absolute compression of all cylinders 1302.91 Draining engine oil 162.88 Sundry/consumables 95.00 LL01 BMW oil 5W-30 532.35.

TOTAL 17637,85

33.2 It follows that the Tribunal rejects the Respondent's assertion that the Applicant is not entitled to a refund; and

33.3 The Act does not cater for consequential damages; hence the Tribunal cannot make an order forcing the Respondent to reimburse the Applicant for expenses incurred, such as insurance costs.[3]

ORDER

34. Accordingly, for the reasons set out above, the Tribunal makes the following order:

34.1 The Respondent is ordered to refund the Applicant a portion of the repair to the vehicle in the amount of R17 637.85 on or before 15 August 2021;

34.2 No order is made as to costs.

DATED ON THIS 15th DAY OF JUNE 2021

(signed)

K MOODALIYAR

PRESIDING MEMBER

Ms H Alwar (Tribunal Member) and Adv F Manamela (Tribunal Member) concurring

[1] Paragraph 2 of the Applicant’s founding affidavit.

[2] See Tribunal leave to refer judgment NCT/142333/2019/75(1)(b) for this case dated 2 December 2020.

[3] This power is reserved for the courts. In the matter of Audi SA (Pty) Ltd v The National Consumer Commission, the Tribunal stated that: “The powers of the Tribunal are similarly circumscribed and do not extend to the Tribunal awarding damages to parties. At its high water mark, the CPA empowers the Tribunal to impose an administrative penalty, order refunds…and issue a certificate of prohibited conduct from the Chairperson of the Tribunal as provided for in Rule 29 after a finding that prohibited conduct took place, to enable a consumer to approach the high court for damages.” NCT/4058/2012/101(1)(p) CPA [2013] ZANCT 4 at para 30.