Quinn v Westvaal Motor Holdings (Pty) Ltd t/a Westvaal Welkom and Another (NCT/339722/2024/75/75(1)(b)) [2024] ZANCT 67 (4 December 2024)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT-339722-2024-75(1)(b)

In the matter between: HENRY ALFRED QUINN APPLICANT And WESTVAAL MOTOR HOLDINGS (PTY) LTD T/A WESTVAAL WELKOM FIRST RESPONDENT NATIONAL CONSUMER COMMISSION ECOND RESPONDENT

Coram:

Adv C Sassman - Presiding Tribunal

Member

Mr S Mbhele - Tribunal Member

Dr M Peenze - Tribunal Member

Date of Hearing - 3 December 2024

Date of Judgment - 4 December 2024

JUDGMENT AND REASONS

1. The applicant is Henry Alfred Quinn, an adult male consumer as defined in section 1 of the Consumer Protection Act 68 of 2008 (the CPA). At the hearing, the applicant represented himself.

2. The first respondent is Westvaal Motor Holdings (Pty) Ltd, trading as Westvaal Welkom, a supplier as defined in section 1 of the CPA. At the hearing of this matter, the applicant was represented by Gary Berndt, a legal advisor of the first respondent.

3. The second respondent is the National Consumer Commission, an organ of the state established by section 85 of the CPA.

4. The applicant only requests relief against the first respondent. The second respondent did not file an answering affidavit in this matter.

TERMINOLOGY

5. A reference to a section in this judgment refers to a section of the CPA.

6. A reference to a rule refers to the “Regulations for matters relating to the functions of the Tribunal and Rules for the conduct

of matters before the National Consumer Tribunal”.[1]

TYPE OF APPLICATION

7. The applicant referred this matter to the National Consumer Tribunal (the Tribunal) in terms of section 75(1)(b). The applicant first referred his complaint to the National Consumer Commission (the NCC), who, after an assessment, concluded on 10 July 2024 that the redress sought by the applicant could not be provided in terms of the CPA.

8. Regarding sections 75(1)(b), if the NCC issued a notice of non-referral as it did in the present matter, the complainant may refer the matter directly to the Tribunal, with leave of the Tribunal. The Tribunal granted such leave on 14 October 2024.

FACTUAL BACKGROUND

9. On 21 August 2023, the applicant purchased a 2013 Toyota Hilux Double Cab 3.0 D4D Dakar (the vehicle) from the first respondent for R295,444.99 (the purchase price).[2] The purchase price included a delivery fee, a Westvaal warranty, the installation of a tracker, licensing, and registration.

10. Following the delivery of the vehicle, the applicant raised various concerns regarding its state. NTT Toyota White River assessed the vehicle and identified defects concerning the gearbox, turbo, and control arm. The first respondent does not dispute the defective state of the vehicle.

11. Initially, within six months of the purchase, the applicant requested that the vehicle be repaired. The first respondent outlined that the age and state of the vehicle rendered it uneconomical to repair. It suggested that the sales transaction be cancelled and the purchase price refunded. The applicant declined this offer.

12. In his application to the Tribunal, the applicant requests the vehicle to be replaced with the same make and model, age and other specifications, but in good condition. According to the first respondent, the request for a replacement is unreasonable because it is not a Toyota dealership and only sells Toyota vehicles when a client would trade in its Toyota vehicle as part of a sale. Further, the vehicle is a Dakar-released, which is difficult to source. As the first respondent does not have such a vehicle in stock and cannot source it within a reasonable period, it would not be able to execute such an order.

THE RELEVANT LEGAL PROVISIONS

13. In terms of section 55(2), every consumer has a right to receive goods that (a) are reasonably suitable for the purpose for which they are generally intended; (b) are of good quality, in good working order, and free of any defects; (c) will be usable and durable for a reasonable period, having regard to the use to which they would normally be put and all the surrounding circumstances of the supply; and (d) comply with any applicable standards set under the Standards Act 29 of 1993, or any other public regulation.

14. Section 56 deals with an implied warranty of quality. Subsection (2) states that within six months after 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 55. The supplier must then, at the election of the consumer, either repair or replace the failed, unsafe, or defective goods or refund the consumer the price paid by the consumer for the goods.

15. If a supplier repairs any goods or any component of any such goods and the failure, defect, or unsafe feature has not been remedied within three months after that repair, section 56(3) outlines that the supplier must replace the goods or refund the consumer the price paid by the consumer for the goods.

CONSIDERATION OF PROHIBITED CONDUCT

16. The Tribunal has considered whether the first respondent’s conduct constitutes prohibited conduct[3] in terms of the CPA. In doing so, the Tribunal is mindful of its wide-ranging powers to make appropriate orders concerning prohibited

conduct.[4]

17. In the present matter, the applicant argued that the first respondent contravened sections 55(2)(b) and (c), read with section 56.

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18. According to the undisputed evidence before the Tribunal, the applicant did not receive a vehicle of good quality and free of defects. The vehicle was defective from the date of purchase. It is also not in dispute that the first respondent refused to repair the vehicle when repairs were requested within the first six months of purchase. Reasons for this refusal included the economic unfeasibility of the vehicle's repair.

19. On the evidence before the Tribunal, the first respondent contravened sections 55(2)(b) and (c) read with section 56.

RELIEF

20. The applicant insists that the vehicle be replaced, while the first respondent argues that specific performance is not feasible in the circumstances.

21. The applicant submits that although he originally wanted the first respondent to repair the vehicle, he now believes they must replace it. The replacement vehicle must be a Toyota Hilux Dakar 4x4 Double Cab 3.0 D4D with a manual transmission. It must be, at most, a 2013 model that has at most 247 547km on the odometer. The colour should match the current vehicle's colour or be a colour that is acceptable to him. A Toyota Dealership of his choosing must inspect the replacement vehicle, and the first respondent must pay for the inspection cost.

22. The Tribunal finds that the first respondent showed sympathy and understanding for the applicant when he brought the vehicle's mechanical defects to its attention. The first respondent’s request to cancel the agreement and refund the applicant is perceived as a bona fide attempt to resolve the dispute. The Tribunal finds no intentional act by the first respondent to prejudice the applicant.

23. The Tribunal considered the applicant’s request for a replacement. According to the applicant, he has the right to choose a remedy in section 56(2). Consequently, he requests a replacement vehicle.

24. The Tribunal is persuaded that the mere reliance on a transgression of section 56(2) in this matter is insufficient to motivate a replacement of the vehicle. The transgression of section 56(2) is based on the first respondent’s failure to repair the vehicle as requested by the applicant. Section 56(2) does not allow the consumer to change his decision ex post facto to that of replacement. Irrespective, the Tribunal considered an appropriate order in terms of section 150 (i) of the National Credit Act 34 of 2005 (the NCA).

25. An order for specific performance lies within the discretion of the Tribunal as supported by the facts of the matter. The Tribunal

considered the following factors:[5]

Whether a refund of the purchase price would be a sufficient remedy

26. The Tribunal is persuaded that a refund would allow the applicant to enter the market and acquire another vehicle that meets his requirements. The parties will also be placed in the position they were before concluding the agreement.

Whether an order to replace the vehicle would be practically feasible and enforceable

27. The Tribunal is persuaded that it cannot monitor compliance with an order to replace the vehicle in the circumstances of this matter. The first respondent is not a Toyota dealership and does not have access to Toyota dealerships from which it could source a replacement vehicle. It is a dealer in the Isuzu and Suzuki vehicle brands. It only has Toyota vehicles in stock when they are offered for sale by third parties or traded in by the owners on purchasing another vehicle from the first respondent. Should the first respondent be required to source a replacement vehicle from vehicles that it acquires in this manner, it is unlikely that it will be able to source such a vehicle within a short or reasonable period. The applicant would be better positioned to source a vehicle to his

liking after receiving a full refund.

Whether the vehicle specified by the applicant could be readily bought elsewhere

28. The Tribunal is persuaded that a similar vehicle could be readily bought in the general second-hand vehicle market. An order requiring the first respondent to source, from the general used vehicle market, an equivalent vehicle to the applicant's satisfaction would be unjust and cause undue hardship, as the vehicle would still have to be acceptable to the subjective opinion of the consumer. The situation would have been different if a new vehicle was bought.

Whether the circumstances warrant an order to replace the vehicle

29. The Tribunal is persuaded that an order to find a replacement vehicle will unlikely resolve the dispute between the parties. Still, it may well transfer the dispute to a new vehicle. The parties are geographically remote from one another. The applicant resides in Sabie, Mpumalanga, and the first respondent operates in the Free State. The distance between the parties is approximately 630 kilometres. Presenting a different vehicle for consideration would require unspecified time and costs. Accordingly, the Tribunal finds that finding a replacement vehicle would be inappropriate, causing unnecessary and undue hardship to the first respondent.

CONCLUSION

30. Although the CPA aims to protect consumers from exploitation and abuse in the marketplace, it also promotes an economic environment that supports and strengthens a culture of consumer rights and responsibilities. Given that the first respondent will not be reasonably in a position to provide the applicant with a replacement vehicle, the Tribunal finds that a replacement order would be commercially, operationally, and legally inappropriate in this matter.

ORDER

31. In the result, the Tribunal makes the following order:

31.1 It is declared that the first respondent contravened section 55(2)(b) and (c), read with section 56(2)(a).

31.2 The contraventions listed above are declared prohibited conduct.

31.3 The first respondent is ordered to refund the applicant R295,444.99, the vehicle's purchase price, within ten business days after this judgment is issued to the parties.

31.4 After the applicant has received the refund, the first respondent must collect the vehicle at its own cost from the applicant.

31.5 The applicant and the respondent must ensure the transfer of the vehicle’s ownership back to the first respondent.

31.6 There is no cost order.

DR. MC PEENZE TRIBUNAL MEMBER

Presiding Tribunal member Adv C Sassman and Tribunal member Mr S Mbhele concur.

[1] Published in GN 789 in GG 34405 of 29 June 2007.

[2] See page 24 of the record.

[3] Prohibited conduct is defined in section 1 as meaning an act or omission in contravention of the CPA.

[4] See National Credit Regulator v Dacqup Finances CC trading as ABC Financial Services – Pinetown and Another (382/2021) [2022] ZACSA 104 (24 June 2022).

[5] See Haynes v King Williamstown Municipality 1951 (2) SA371 (A). Also see Benson v SA Mutual Life Assurance Society 1986 (1) SA 1 (A).