Ngoza v Roque Quality Cars CC (NCT/79905/2017/73(3)&75(1)(b)) [2018] ZANCT 110 (28 June 2018)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/79905/ 2017/73(3) &75(1)(b)

In the matter between:

KOKO JACOB NGOZA

APPLICANT

and

ROQUE QUALITY CARS CC

RESPONDENT

Coram:

Prof T Woker – Presiding Member

Ms P Beck – Member

Mr F Sibanda – Member

Date of 1st hearing: 2 March 2018

Date of 2nd hearing: 15 June 2018

Judgment and Reasons

THE PARTIES

1. The Applicant is Koko Jacob Ngoza, an adult male residing at Tokoza, Gauteng (the Applicant). At the hearings the Applicant

was represented by Mr Mamelasigida Dakalo from Buthelezi Attorneys.

2. The Respondent is Roque Quality Cars CC, a close corporation duly registered and incorporated in terms of the statutes of South Africa with its principal place of business at 91 Malan Street, Witfield, Boksburg (the Respondent). The Respondent was represented by Mr Norman Prigge from the Small Employers Enterprises of South Africa (SEESA).

THE APPLICATION

3. The Applicant initially applied for leave to refer his complaint, which had been non-referred by the National Consumer Commission (the “NCC” or “Commission”), directly to the National Consumer Tribunal (the “Tribunal”) in terms of section 75(1)(b) of the Consumer Protection Act, 2008 (the “CPA”). The Respondent opposed the application. The Application for leave to refer was granted by the Tribunal and the matter was set down for a hearing into the merits of the matter on 2 March 2018. After hearing oral testimony from the Respondent’s witnesses the matter was postponed in an attempt by the Tribunal to obtain further witnesses from Direct Data (the role of Direct Data in this matter is explained below). No witnesses from this entity could be found and the matter was finalised on 15 June 2018.

BACKGROUND

4. The Applicant purchased a second hand motor vehicle, a Mercedes Benz C250D model from the Respondent for the purchase price of R61 700.00 on 31 January 2012.

5. During or about April 2012 the Applicant contacted the Respondent stating that the vehicle had failed to start. The Respondent sent a mechanic to the Applicant’s house who could not establish the problem and the vehicle was towed to another mechanic, Rishi Ramdas. The exact details regarding why the vehicle refused to start are in dispute. The Applicant alleged that the vehicle was defective whilst the Respondent alleged that Ramdas established that the key to start the vehicle had been damaged by moisture. This meant that the ignition could not read the key. The Respondent alleged that the Applicant was negligent in causing the key to become water damaged.

6. The vehicle was transported to another entity, Direct Data, for repairs and there it remained for at least one year.

7. The Applicant alleged that he made several attempts to resolve the matter with the Respondent but that the Respondent seemed uninterested and that he would be shouted at when he visited the Respondent’s premises. The Respondent disputed that it refused to assist the Applicant and stated that it made every effort to assist the Applicant to have his vehicle repaired.

8. On 11 March 2013 an attorney representing the Applicant, Buthelezi Attorneys, wrote to the Respondent alleging that the Respondent had chosen to take the car to Direct Data in order for it to be repaired and that the vehicle had not been fixed and that Direct Data was threatening to sell the vehicle to cover storage costs. In the same letter, the Applicant stated that he was no longer

interested in the vehicle and wished to cancel the agreement.

9. The Respondent disputed that it was liable for the repairs. It argued that these were the responsibility of Direct Data. The

Respondent stated that it assisted the Applicant by collecting the vehicle and storing it at the Respondent’s premises in order to avoid the Applicant being charged storage fees. It also alleged that it paid certain costs in order to maintain a good relationship with Direct Data and not because it was legally obliged to do so.

10. The Applicant lodged a complaint with the Motor Industry Ombudsman of South Africa (MIOSA) on 25 April 2014.

11. On 2 September 2015 MIOSA sent a letter to the Respondent which stated that it had assessed all the submissions which had been made

to its office. It referred to sections 55 (consumer’s right to safe, good quality goods) and 56 (Implied warranty of

quality) of the CPA and then issued a finding that ordered that the vehicle be returned to the Respondent and that the Applicant be refunded all monies paid for the goods, less the cost of usage.

12. The Respondent did not adhere to this finding, and alleged that MIOSA failed to take into account the Applicant’s own negligence and the fact that the repair services were to be delivered by a third party.

13. On 23 July 2016, the Applicant referred the matter to the NCC, which issued a notice of non-referral based on section 116 of the CPA (i.e. that the matter had prescribed). The Applicant then referred the matter to the Tribunal and after a hearing into the issue of prescription, the Tribunal issued a ruling in which it found that the referral of the matter to MIOSA interrupted prescription. The Tribunal granted leave for the matter to be referred to the Tribunal for a hearing into the merits of the matter.

THE APPLICABLE LAW

14. The CPA provides in section 55 that consumers are entitled to safe, good quality goods. Every consumer has the right to receive goods that are reasonably suitable for the purposes for which they are generally intended; are of good quality, in good working

order and free of any defect. These goods must also be useable and durable for a 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.

15. Section 56 then provides consumers with an implied warranty of quality. In any transaction pertaining to the supply of goods a retailer warrants that the goods comply with the requirements and standards contemplated in section 55, except to the extent that these goods have been altered contrary to instructions or after leaving the control of the retailer. Within six months after the delivery of the 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 requirement and standards contemplated in section 55. The supplier must then at the direction of the consumer, either, repair or replace the defective goods or refund the consumer the price paid by the consumer for the goods.

THE APPLICANT’S SUBMISSIONS

16. The Applicant submitted that the Respondent acted in contravention of section 55 of the CPA in that the Respondent did not supply him with safe, good quality goods as the motor vehicle that he purchased was defective. He stated that he asked the Respondent

to fix the vehicle which “led to him taking out the money to pay Direct Data”. The Respondent failed to fix the vehicle and he therefore wanted to cancel the agreement and reclaim his purchase price plus interest together with the costs that he had suffered throughout this process. He also submitted that he paid the full R7000 to Direct Data for the repairs to the vehicle but he has, had no response from Direct Data regarding the repairs. When he tried to approach the Respondent regarding the repairs he was shouted at and he finally got tired of the conduct of the Respondent. Eventually he met with an attorney who advised him to go to MIOSA

THE RESPONDENT’S SUBMISSIONS

17. The Respondent denied that it supplied a defective motor vehicle to the Applicant and submitted that the reason why the vehicle failed

to start was because the ignition could not read the key. Upon further inspection the inside of the key was found to be damp which indicated that the key had been damaged by water. The Respondent submitted a confirmatory affidavit deposed to by the mechanic who inspected the key. The Respondent argued that the Applicant was negligent in that he caused the key to be damaged by water and that this immediately voided the warranty afforded by section 56 of the Act. The Respondent nevertheless offered to assist the Applicant by assisting him to search for a mechanic who would repair the vehicle as the Respondent could not repair it. Through the Respondent’s assistance the vehicle was taken to Direct Data for repairs. The Respondent was not involved in booking the vehicle in at Direct Data, nor did it discuss costs. About a year later Direct Data contacted the Respondent. Direct Data was threatening to charge storage costs for the vehicle. It was at that stage that the Respondent discovered that the Applicant still owed Direct Data R2 000 for the repairs and this was why the vehicle had not been repaired.

THE HEARING

18. Although the Applicant was present at the hearing, the Applicant elected to abide by the submissions he had made in his founding affidavit. The Respondent called two witnesses: Mr Roque, the member of the First Respondent, and Mr Richie Ramdas, the mechanic who inspected the key of the vehicle.

Mr Roque’s testimony

19. Under oath Mr Roque testified as follows:

(1) The Respondent sold a 1997/1998 Mercedes Benz to the Applicant. He could not remember the exact date on which the sale took place but did not dispute the date specified by the Applicant. He did not deal directly with the Applicant at that time; the sale was conducted by one of the Respondent’s salespeople. He acknowledged that the vehicle was on old vehicle that had done 177 000kms;

(2) The next day the Applicant contacted him and informed him that the vehicle was not working. He went to the Applicant’s place of work and discovered that there was no diesel in the vehicle. He put diesel into the vehicle and the vehicle was fine;

(3) A few months later the Applicant contacted him again and said that the vehicle was not working and was stuck at his house. He went to the Applicant’s house and established that the key would not go into the ignition. He was told that the only thing he could do was fetch the vehicle and bring it to a mechanic who would then establish why the key would not go into the ignition;

(4) He went to the Applicant’s residence with a flatbed truck to remove the vehicle. He had to manoeuvre the truck between the houses to get down to the Applicant’s house in order to collect the vehicle. In addition, because the steering of the vehicle was locked he had to strip the steering column as it was impossible to move the vehicle. He paid R700/800 for the flatbed truck to remove the vehicle;

(5) He took the car to a mechanic, Ramdas, who diagnosed that the key was not working. Ramdas tested the battery of the key and found that this was not the problem so he opened the key and found moisture in the key;

(6) He was of the view that he was not responsible for the vehicle because there was nothing wrong with the vehicle itself. The problem lay with the key that had become wet. This meant that the key could not be read and could not go into the ignition. He did know why the key was wet. He informed the Applicant that he was not responsible for the key;

(7) The salespeople at his business tried to help the Applicant by trying to find someone to replace the key. Mercedes Benz was approached where it was established that the cost of replacing the key was R11 000. The Applicant said this was too expensive;

(8) He then went to another entity, Direct Data. Direct Data said that it could get a key for R7000. He then left the Applicant with Direct Data and as far as he was concerned his role was over as he had handed the Applicant over to Direct Data. He did not sign any documents with Direct Data. He then forgot about the vehicle and thought that everything had been sorted out. If the Applicant had paid R7 000 the vehicle would have been fixed in about a week;

(9) About a year and a half later he was contacted by Direct Data and informed that they were going to charge storage fees for keeping the vehicle. The vehicle had not been fixed because the Applicant had only paid R5000. He was of the view that the problem lies with Direct Data and not with him and that Direct Data should be providing answers to the case, not the Respondent;

(10) He then decided to fetch the vehicle from Direct Data and discovered that it was no longer in the same condition as parts of the vehicle had been removed whilst it was standing at Direct Data and the windows had been left open so the carpets and doors were full of water;

(11) He did not know the name of the people at Direct Data; he just knew that it was an old man and his son;

(12) After about two weeks, the Applicant came to his premises and looked at the vehicle. He suggested to the Applicant that they should buy a similar vehicle and attempt to repair his (the Applicant’s) vehicle. He found a similar vehicle in a scrapyard in Pretoria and suggested that they buy this vehicle but the Applicant stated that he wanted the R5 000 he had given to Direct Data and that he was going to sue them. The Applicant then left;

(13) He saw the Applicant some time later in a shopping centre and informed him that he still had the vehicle and asked what the Applicant was going to do about it. The Applicant stated that he was coming to see him but the Applicant never arrived; and

(14) The vehicle has now been moved to other premises and that panel beater is asking for storage fees.

20. Under cross examination by the Applicant’s representative Mr Roque stated that:

(1) He had been selling cars for 19 years. He did not sell the vehicle himself to the Applicant, he has salespeople to do that and he only deals with customers when there are problems;

(2) He went to Mercedes about the key and the person at Mercedes checked the key and stated that the key was finished. Mercedes stated that it would cost R11 000 for another key which the Applicant was not prepared to pay. The reason why it is expensive is because the vehicle has to be programed for the key; and

(3) He did not speak to Direct Data or deal with Direct Data; he simply left the Applicant there with the vehicle. He did not thereafter try to call the Applicant or Direct Data in order to find out whether the vehicle had been fixed. He left the Applicant speaking to the owner of “the shop and thought the matter was being dealt with”.

Mr Ramdas’ testimony

21. Under oath Mr Ramdas testified as follows:

(1) He is a level three Volvo Diagnostic technician which means that he works with networking, software, fibre optics, programming and computer skills on vehicles. He does not however work with keys which is a different type of market. However, he was able to establish that the key was not working;

(2) The vehicle “came in with a towing” and he was told to diagnose what was wrong with it. He first checked the key’s battery but when he tried to put the key in, the vehicle did not even activate or turn on. He was unable to do any diagnostics because of the problem with the key; and

(3) He showed Roque that there was a bit of moisture or “something” in the key. (In response to a question from the Tribunal regarding why the key was not working he stated “it has moisture, so I am going to assume there is water in it, water and electronics do not go”).

22. The Respondent’s representative asked him how he established that there was moisture in the key and he answered:

“I opened the key and you could see in the key that it was like condensation or something in there”.

23. Under cross-examination by the Applicant’s representative he explained that:

(1) When the car was bought to him the steering wheel was still in the car;

(2) He asked Roque for a spare key and Roque explained that there was only one key;

(3) He came to the conclusion that the problem was the key because the key could not activate the car;

(4) He discovered that there was “condensation or something” in the key when he opened the key; and

(5) The car stayed with him for a couple of weeks until Roque came to fetch it.

DOCUMENTARY EVIDENCE SUBMITTED

24. As part of his founding affidavit the Applicant submitted an Invoice from Direct Data marked KGN3 that indicates that on 16 July

2012 a merc complete lockset was purchased for the unit price of R7000. The invoice indicates that a deposit of R5000 was paid and the balance to be paid was R2000.

CONSIDERATION AND EVALUATION OF EVIDENCE

25. A careful consideration of all the evidence submitted to the Tribunal, both on affidavit and through oral evidence, indicates that

the basic facts of the matter are not in dispute. The only real factual issue in dispute is why the vehicle would not start in April 2012. There was a discussion regarding who paid the money (whether it was R5000 or R7000) to Direct Data but the Applicant confirmed that his statement in his affidavit is correct. The founding affidavit reads as follows:

“I and Roque Quality Cars went to Direct Data Diagnostic Solution and I paid R7000 for a second hand computer box. I was promised that the vehicle will be fixed and since that day I did not receive the vehicle or a refund of the purchase price.”

26. Although the Applicant stated that he paid R7 000 to Direct Data, the invoice attached to his founding affidavit (annexure KGN3)

indicates that a deposit of R5000 was paid and that a balance of R2000 was outstanding. This seems to accord with the evidence

submitted by the Respondent and Mr Roque’s testimony. Mr Roque stated that Direct Data informed him that it had not done the repairs to the vehicle because the balance of the purchase price had not been paid.

27. Essentially the matter involves a vehicle that developed problems about three months after it was purchased. The Respondent

argued that the reason why the vehicle would not start was because the key was damaged through being exposed to moisture. Mr Roque attempted to assist the Applicant but the Respondent was not responsible for having the vehicle repaired. The Applicant was the one who was responsible for the damage to the key and therefore was the person who was responsible for repairing the vehicle.

28. The Applicant is of the view that the vehicle was defective and therefore the supplier (ie the Respondent) is responsible for repairing the vehicle. The Applicant believes that the Respondent should have fixed the vehicle and returned it to him (the Applicant) or it should refund the Applicant his purchase price. The Applicant is of the view that it was the Respondent’s duty

to follow-up on the vehicle with Direct Data and establish whether the vehicle had been fixed or not.

29. In his concluding argument the Applicant also submitted that since the Applicant had paid the R7000 to Direct Data, the vehicle should have been fixed very quickly. Therefore, the correct inference that the Tribunal needs to draw from the facts is that the vehicle itself was defective.

30. In order to apply the provisions of section 55 of the CPA to these particular facts it must be clear that the vehicle, supplied by

the Respondent, was not of good quality, in good working order and free of defects. If the defects became apparent within a period of six months then section 56 of the CPA would apply and the Applicant would be entitled (at the very least) to a refund of his purchase price.

31. However, in this particular case, it has not been established that the vehicle could not start because it was defective. The evidence before the Tribunal, given by the Respondent’s witnesses under oath is that the vehicle would not start because of moisture in the key. The evidence was part of the answering affidavit submitted by the Respondent and again re-iterated in oral testimony during the hearing before the Tribunal. No further evidence regarding the state of the vehicle at the time when it would not start was presented to the Tribunal. Unfortunately, it appears that the vehicle was damaged whilst in the care of Direct Data and so it is very difficult to establish the state of the vehicle at the time when it was delivered to Direct Data. The Respondent’s witnesses testified that the only problem with the vehicle was the key that was damaged through moisture. The Applicant did not present any evidence to contradict the version of the Respondent and neither was the Respondent’s version challenged by the Applicant under cross-examination. This has crucial implications for a decision in this matter.

32. In President of South Africa v South African Rugby Football Union [1] the Constitutional Court stated:

“As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character”[2]

33. The Constitutional Court also held that if a point in dispute is left unchallenged in cross-examination the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.

34. This is a rule that was enunciated in the English decision of Browne v Dunn[3] and has been consistently followed by South African courts.[4] The Constitutional Court pointed out that the rule in Browne v Dunn is not merely one of professional practice but is essential to fair play and fair dealing with witnesses. Witnesses whose evidence is challenged must be given the opportunity to deal with that challenge.[5]

35. In this particular matter the Respondent explained in its answering affidavit that the problem lay with the key which had become wet. It also attached a confirmatory affidavit from the mechanic who examined the vehicle and the key. At no stage has the Applicant contradicted this evidence and neither did he cross-examine the two witnesses on this aspect of their testimony when they gave evidence. The Tribunal is therefore faced with evidence that has not been contradicted.

36. Mr Ramdas testified that once the key became wet, the electronics in the starter would not work. How or why the key suffered

water damage has not been established but, the only inference that can be drawn is that the key suffered this damage whilst under the care of the Applicant. This being so, the Respondent cannot be held responsible for the vehicle failing to start.

37. This matter seems to involve a massive misunderstanding between the parties as to who was responsible for having the vehicle repaired. There is no doubt that Mr Roque is a fiery individual who becomes agitated under pressure and may well have shouted at the Applicant in their subsequent dealings regarding the vehicle. The Tribunal itself had to request Mr Roque to calm down. However,

this does not mean that he was responsible for the damage to the key that led to the problems in the first place. In addition, it seems that the Applicant’s problems were further exacerbated by the fact that the full amount of R7000 was never paid to Direct Data which means that the vehicle was never repaired. Why the Applicant did not follow this up with Direct Data has not been explained adequately to the Tribunal but it seems that the Applicant was at all times expecting the Respondent to resolve the issue. Unfortunately, no witnesses from Direct Data, despite efforts by the Tribunal to trace such witnesses, were available to explain its role in this debacle.

38. Having regard to all the evidence (or lack of evidence as the case may be) before the Tribunal, the Tribunal is unable to conclude

that the vehicle which the Respondent sold to the Applicant was defective and that the Applicant is entitled to exercise his rights

under section 56 of the CPA.

ORDER

The Application is dismissed.

There is no order as to costs.

Thus handed down in Centurion; this 28th Day of June 2018.

Prof. T A Woker

Presiding Member

Mr F Sibanda (Member) and Ms P Beck (Member) concurring.

[1] 2000 (1) SA 1 (CC).

[2] Para 61.

[3] (1893) 6 R 67 (HL).

[4] President of the Republic of South Africa and Others v South African Rugby Football Union and Other para 62.

[5] President of the Republic of South Africa and Others v South African Rugby Football Union and Other para 63