Orsmond v Thoabala (FSCAC2020/11-4) [2020] ZACONAF 3 (18 December 2020)

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IN

THE FREE STATE CONSUMER AFFAIRS COURT

HELD

AT BLOEMFONTEIN

Case no. FSCAC2020/11-4

In the matter between:

DANICO

ORSMOND

Plaintiff

and

VINCENT

THOABALA

Defendant

The Court was constituted as follows:

Chairperson (alternative) Advocate P du P Greyling

Prof Dr R-M Jansen (member)

Mr A G Sefo (member)

Mr G J Bredenkamp (member)

Mr F Botha (member)

JUDGMENT

1. BACKGROUND:

1.1 The matter served before the Consumer Affairs Court for the Province of the Free State on the 4th December 2020. The Plaintiff himself adduced evidence and was cross-examined by the Defendant, whereafter the Plaintiff closed his case. In the Defendant's case, only the Defendant adduced evidence and was cross-examined by the Plaintiff. Thereafter the Defendant closed its case. The matter was postponed to the 18th December 2020 for judgment.

1.2 The evidence can be summarized as follows:

(i) On the 25th March 2020 the Plaintiff took its Corsa 1.6 Utility bakkie, 2000 model to the Defendant in order to have the gearbox and clutch replaced.

(ii) The Defendant replaced the gearbox and clutch, with used parts and charged the Plaintiff an amount of R4 500.00, which the Plaintiff paid to the Defendant.

(iii) After receiving the bakkie from the Defendant, the Plaintiff realized that the gearbox was still defective, where it apparently failed to go into fifth gear.

(iv) The Plaintiff contacted the Defendant telephonically and reported to the Defendant that the gearbox was still defective. The Defendant indicated to the Plaintiff that the bakkie should be returned in order to have the defective gearbox repaired.

(v) On the 27th March 2020 the lockdown, relating to the COVID-19 pandemic, was however, announced. In the meantime, the Plaintiffs bakkie's engine broke down and did the Plaintiff again take the bakkie to the Defendant on or during the 25th August 2020, in order to have another engine block installed.

(vi) The Defendant installed an engine block (apparently used parts). The Plaintiff was charged an amount of R7 000.00, which the Plaintiff paid to the Defendant.

(vii) After receiving the bakkie from the Defendant, the Plaintiff took possession for the bakkie for approximately two (2) days and drove for an approximate 50 - 60 kilometres.

(viii) After abovementioned period of two (2) days, the bakkie's engine again broke down and was the bakkie again returned to the Defendant for repairs.

(ix) The Defendant attempted to repair the bakkie again and did the Plaintiff pay to the Defendant on the 1st September 2020 an amount of R2 300.00 and again on the 19th September 2020 and amount of R4 000.00.

(x) After receiving the bakkie on the 19th September 2020, the Plaintiff was still not satisfied with the repairs done by the Defendant and was the engine still defective.

1.3 Due to an administrative error, the Defendant was informed that the matter was postponed to the 11th December 2020 and did the Defendant appear before the Consumer Court on the 11th December 2020 and presented a complaint to the Court dated the 10th December 2020.

1.4 The complaint can be summarized as follows:

(i) The Defendant was supposed to be in Court on the 11th December 2020, while the same did not apply to the Plaintiff.

(ii) The Plaintiff was allowed to be assisted by his wife during the cross-examination of the Defendant, while the Defendant was of the view that he was not allowed to have any assistance during the presentation of his case.

1.5 On the 11th December 2020 the matter was again postponed until the 17th December 2020 for deliberation by the Court and did the Court receive written submissions by the Defendant, dated the 14th December 2020.

1.6 In the written submissions from the Defendant, the Defendant inter alia, raised certain claims against the Plaintiff for monies still outstanding.

2. COMPLAINTS RAISED BY THE DEFENDANT ON THE 11TH DECEMBER 2020:

2.1 As mentioned above, the first complaint by the Defendant was that the Consumer Protector, Mr Radikeledi, instructed the Defendant to appear before the Court on the 11th December 2020, while the matter was postponed until the 18th December 2020 and under circumstances where the Plaintiff was not instructed to be in Court on the 11th December 2020.

2.2 Mr Radikeledi, on the 11th December 2020, indicated to the Court that this was a mistake made by himself, the Consumer Protector. Apparently his notes indicated that the matter was postponed to the 11th December 2020, while, in fact, the matter was postponed until the 18th December 2020.

2.3 The Court explained to the Defendant that this was merely an administrative oversight and apologized to the Defendant for any inconvenience caused in this regard.

2.4 The second complaint of the Defendant, as indicated above, was that the Plaintiff's wife, who was not a witness during the proceedings, was allowed to participate in the Court proceedings.

2.5 The true facts were, however, as determined by the Court on the 11th December 2020, that the Plaintiff's wife was only an instrument of the Plaintiff, where she, on behalf of Plaintiff, presented a photo, referring to the Defendant's sign, to the Defendant, Consumer Protector, chairperson and members of the Court. The Plaintiffs wife did not in any manner whatsoever testified on behalf of Plaintiff neither did she contribute to Plaintiffs case nor was Plaintiff assisted by her at any stage or in any manner.

2.6 It was explained to the Defendant, on the 11th December 2020, that the conduct of the Plaintiffs wife, as mentioned, did not have any bearing on the proceedings and did not take any of the issues, as formulated in the pleadings, further. Her actions did not have any influence whatsoever on the members of this court in evaluating any of the parties' evidence and coming to any decision in this judgement.

3. DEFENDANT'S COUNTERCLAIM:

3.1 As mentioned above, the Defendant, in written submissions dated the 14th December 2020, argued that there are still monies outstanding and payable by the Plaintiff to the Defendant.

3.2 However, there was no counterclaim filed by the Defendant and is it the view of this Court that such counterclaims cannot be entertained.

4. THE PLAINTIFF'S CLAIM:

4.1 The Plaintiff's claim is, inter alia, formulated in paragraph 3.1 of the particulars of claim, page 4 of the index pleadings.

5

APPLICABLE LAW:

5.1 Section 54 of the Consumer Protection Act, Act 68 of 2008 reads as follows:

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

"Warranty on repaired goods:

57.(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 (3) 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.

CLAIM 1:

6.1 The first claim of the Plaintiff is a claim for R4 500.00 for the replacement of a gearbox.

6.2 It is the Plaintiff's case that, although the gearbox was replaced, the gearbox was still defective, where it could not go into the fifth gear.

6.3 The Plaintiff testified that he phoned the Defendant on the 25th and the 26th March 2020, in order to complain about the defective gearbox. The Defendant indicated that the gearbox should be returned, in order to be repaired.

6.4 It is common cause that the gearbox was not repaired.

6.5 Apparent from the Record, page 8 thereof, the Plaintiff removed the gearbox and is the gearbox still in the possession of the Plaintiff.

6.6 It is also not in dispute that the Defendant is willing to retake possession of the gearbox and to refund the Plaintiff.

See pages 11, 14, 17 and 18 of the record

6.7 With reference to Section 54 and Section 57 of the Consumer Protection Act, Defendant should therefore either repair the defects in the gearbox, alternatively, restitution should be ordered, with the effect that the Plaintiff return the gearbox to the Defendant and the Defendant refund the Plaintiff in the amount of R4 500.00.

7.

CLAIM 2 AND CLAIM 3:

7.1 The evidence shows that the Defendant installed an engine block in the Plaintiffs bakkie and also replaced oil and gaskets in the total amount of R8 200.00.

7.2 After receiving the bakkie from the Defendant and after an engine block, oil and gaskets were installed, the Plaintiff took possession of the bakkie for approximately two (2) days and drove approximately 60 kilometres.

7.3 When the bakkie was returned to the Defendant after two (2) days, the Defendant established that the engine block was damaged, all the oil was spilled and that the engine was damaged because of the engine running without oil.

7.4 The Defendant, in its cross-examination, made it clear that the engine would not be able to run for a period of two (2) days and for approximately 60 kilometres without any oil.

7.5 On a balance of probabilities, the engine block, fitted by the Defendant, together with oil and gaskets, was damaged by the Plaintiff himself and is it therefore not justified that the Defendant should be held liable for these damages.

8 CLAIMS 4 AND 5:

8.1 The Defendant charged an amount of R2 300.00 and R4 000.00 for the repair of the Plaintiff's motor vehicle, after the engine was damaged due to the fact that the engine was running without oil.

8.2 It is the Plaintiff's case that, after he paid the amount of R2 300.00 and R4 000.00 respectively and after receiving the bakkie from the Defendant, the Plaintiff's bakkie was still defective. When the Plaintiff received the bakkie from the Defendant on or during the 19th September 2020, the engine was smoking profusely and was it necessary for the Plaintiff to take the bakkie to another service provider, in order to repair the defects.

8.3 It is apparent that, although the Defendant purported himself to be an "Opel specialist', the Plaintiff did not receive full value for the amounts of R2 300.00 and R4 000.00 respectively, paid to the Defendant in order to have his bakkie's engine repaired.

8.4 With reference to Sections 54 and 57 of the Consumer Protection Act, Act no 68 of 2008, the Plaintiff should be partly reimbursed relating to claims 4 and 5.

9 IN PASSING:

9.1 The Defendant calls his business "Opel Specialist”.

9.2 Abovementioned is apparent from the evidence of the Plaintiff, read with an invoice, issued by the Defendant to the Plaintiff on the 19th September 2020.

See page 23 of the indexed pleadings.

9.3 The Defendant testified that he has no formal training as a mechanic and is trading as a "backyard mechanic".

9.4 The Free State Consumer Affairs Act, Act 14 of 1998 has reference in this regard.

9.5 An "unfair business practice" is defined to mean any business practice which, directly or indirectly, has or is likely to have the effect of prejudicing unreasonably or deceiving any customer.

9.6 Although it is not a part of the matters that this Court must decide over in casu, the Defendant's conduct, by referring to himself as an "Opel specialist”, under circumstances where he is, on his own accord, only a backyard mechanic, raises some concerns.

9.7 The Defendant's reference to himself as a "specialist” might be an unfair business practice, as contemplated in the Free State Consumer Affairs Act and are the parties referred to the provisions of Sections 1, 6, 22 AND 30 of the Free State Consumer Affairs Act.

9.8 In the event that Plaintiff had raised this blatant contravention in his summons this Court would have been able to make an appropriate order against Defendant in terms of Section 22 and sentenced Defendant in accordance with Section 30(a).

9.9 The Defendant (and all other Suppliers as envisaged in the Act) need to take serious cognisance of Section 30(a) of the Free State Consumer Affairs Act 14 of 1998 which reads as follow :

"Any person who is convicted of an offence in terms of this Act shall be liable in the case of an offence referred to in -

(b) any other provision of this Act, to a fine or to imprisonment for a period not exceeding 12 months or to both a fine and that imprisonment " (my emphasis underlined)

10 COSTS:

The Plaintiff only succeeded partially in his claim and do these proceedings not warrant any cost orders against the Defendant.

11 ORDERS:

The following orders are made:

Claim 1:

11.1 The Defendant is ordered to repair the gearbox for which it received payment on the 25th March 2020, to such a state and manner and quality that persons are generally entitled to expect, as contemplated in Section 54 of the Consumer Protection Affairs Act, Act no. 68 of 2008.

11.2 Alternatively, if the Defendant fails to repair the gearbox, as contemplated in order no. 11.1, restitution is ordered, to effect that the Plaintiff should return the gearbox to the Defendant and that the Defendant would refund the Plaintiff in the amount of R4 500.00.

Claim 2 and 3:

11.3 Claims 2 and 3 are dismissed.

Claims 4 and 5:

11.4 The Defendant is ordered to refund the Plaintiff in the amount of R3 150.00, being the half of the monies received by the Defendant on the 1st September 2020 and the 19th September 2020.

11.5 No order as to costs.

DATED and SIGNED at BLOEMFONTEIN on this the 18th day of DECEMBER 2020.

P DU P

GREYLING

ALTERNATE

CHAIRPERSON

DATED and SIGNED at BLOEMFONTEIN on this the day of DECEMBER 2020.

PROF DR R-M JANSEN

MEMBER

MR A G

SEFO

MR G J

BREDENKAMP

MR F

BOTHA

ALTERNATE

MEMBER