Richards v Ellite Body Pannels (Pty) Ltd t/a Midrand Motorcycles and Another (NCT-360566-2024-75(1)(b)) [2025] ZANCT 35 (2 June 2025)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT-360566-2024-75(1)(b)

In the matter between: DYLAN RICHARDS APPLICANT And ELLITE BODY PANNELS (PTY) LTD T/A MIDRAND MOTORCYCLES FIRST RESPONDENT NATIONAL CONSUMER COMMISSION SECOND RESPONDENT

Coram:

Dr MC Peenze

- Presiding Tribunal Member

Adv C Sassman - Tribunal Member

Mr CJ Ntsoane - Tribunal Member

Date of Hearing - 29 May 2025

Date of Judgment - 2 June 2025

JUDGMENT AND REASONS

THE PARTIES

1. The applicant in this matter is Dylan Richards (the applicant). The applicant is a consumer as defined in section 1 of the Consumer Protection Act, 2008 (the CPA). At the hearing of this matter, the applicant represented himself.

2. The first respondent is Ellite Body Pannels (Pty) Ltd, trading as Midrand Motorcycles (the first respondent), a private company registered as such under the company laws of the Republic of South Africa and a supplier in terms of section 1 of the CPA. At the hearing of this matter, the first respondent was represented by its sole director, Yashgar Maharaj.

3. The second respondent is the National Consumer Commission (the NCC), a juristic person established in terms of section 85(1) of the CPA. The NCC is responsible for enforcing the CPA by monitoring the consumer market to ensure prohibited conduct and offences are prevented, detected, and prosecuted. The NCC did not oppose the matter and was not present or represented at the hearing.

TERMINOLOGY

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

APPLICATION TYPE

5. This is an application in terms of section 75(1)(b). In this application, the applicant, with leave granted by the Tribunal, seeks redress against the first respondent. The applicant alleges that the first respondent contravened the CPA by selling him a defective motorcycle and refusing to cancel the agreement as requested.

6. The Tribunal has jurisdiction in terms of section 27(a)(ii)[1] of the National Credit Act 34 of 2005 (the NCA) to hear this application.

ISSUE TO BE DECIDED

7. The Tribunal must decide whether the first respondent engaged in prohibited conduct and, if so, whether the relief sought should be granted.

FACTUAL BACKGROUND

8. The complaint's essence is that the first respondent allegedly sold the applicant a defective used 2004 Honda CBR600RR motorcycle (the motorcycle) on 5 May 2023 for R57,500.00. The motorcycle failed to start, and other latent defects became evident just a few days after delivery. These defects relate to a faulty battery, starter, and gearbox. The applicant referred his complaint to the NCC, which issued a non-referral notice on 25

October 2024.

9. On 23 December 2024, the Tribunal granted the applicant leave to refer his complaint to the Tribunal.

10. The applicant requests that the Tribunal issue an order declaring the first respondent's conduct prohibited, a refund of the purchase price of R57,500.00 and a fine. No specific relief is sought against the second respondent.

11. The first respondent opposes this application, disputing that the motorcycle was sold in a defective state.

THE HEARING

The applicant’s argument

12. According to the applicant, the motorcycle failed at a local garage on the day of purchase, 5 May 2023. The first respondent subsequently upgraded the stator, recharged the battery, and returned the motorcycle to the applicant on 8 May 2023.

13. Other latent defects became evident a few days after taking delivery, namely:

(i) the second gear would slip out into neutral while riding; and

(ii) the motorcycle could not start upon reaching a temperature of 60+ degrees.

14. On 16 May 2023, the motorcycle failed while the applicant was commuting to work, nearly causing a collision with an oncoming vehicle. Upon taking the motorcycle to Bike City for an inspection, they informed the applicant that the starter and gearbox were defective and had to be replaced. The applicant informed the first respondent about the defects on the motorcycle on 17 May 2023, whereupon the first respondent stated they could not assist the applicant, as the motorcycle was bought "as is".

15. On 19 May 2023, the applicant issued a letter of demand to the first respondent, seeking a refund and cancellation of the sale due to the defects. The first respondent offered a refund, subject to the following conditions:

(i) the motorcycle had to be returned at the applicant's expense;

(ii) the applicant would forfeit a R1,500.00 administrative fee; and

(iii) the motorcycle had to be returned before 3 June 2023.

16. The applicant rejected these conditions and interpreted the first respondent’s conduct as a refusal to refund the purchase price as required by the CPA. The applicant complained to the Motor Industry Ombudsman of South Africa (MIOSA) on 13 June 2023. MIOSA issued its findings on 21 August 2023, concluding that the first respondent should obtain an independent assessment of the alleged defects.

17. The first respondent did not obtain an independent assessment of the alleged defects as advised by MIOSA. Instead, it collected the motorcycle on 2 September 2023 and repaired the starter and gearbox on its own initiative. These repairs were executed without the applicant's knowledge. Repair expenses amounted to R14,720.00, of which R6,500.00 was spent on replacing the gear selector and the balance on repairing the starter.

18. Subsequently, the first respondent demanded payment for the repairs to the gearbox (R6,500.00), claiming that the damages to the gearbox resulted from driver error. The applicant disputes the allegation that he drove the motorcycle incorrectly and argues that these expenses were incurred unlawfully and without his instruction. Consequently, such expenses should not be for his account.

19. The applicant further argues that the sale agreement unlawfully included terms outlining that the motorcycle was sold “as is” with “no guarantee” and that the first respondent attempted to evade its statutory responsibility to sell good quality goods.

20. The motorcycle remained stationary at the first respondent’s premises, as the first respondent refused to release it unless the applicant paid for the repairs to the gearbox. Due to the unresolved dispute, monthly storage fees were unlawfully levied against the applicant.

The first respondent’s argument

21. The first respondent does not dispute that the motorcycle exhibited starting problems on the date of sale but argues that the failure to start resulted from the battery not being adequately charged. According to the first respondent, the battery was subsequently

properly charged and the stator[2] was upgraded on 5 May 2023. On 8 May 2023, the motorcycle was returned to the applicant in drivable condition.

22. The first respondent does not dispute that the starter motor (not to be confused with the stator)[3] was defective at the time of purchase. However, the first respondent argues that the starter motor (the starter) was old and malfunctioned

due to normal wear and tear. According to the first respondent, a faulty starter is not a defect. The first respondent also contends

that it was not obligated to repair or replace the starter before the sale, because the motorcycle was sold “as is”. Per the sales agreement, dated 5 May 2023, the first respondent did not provide any guarantee or warranty to the applicant.

23. The first respondent does not dispute that the applicant requested a refund. In May 2023, the first respondent agreed to the refund, but only if the applicant would cover the expenses to collect the motorcycle. The collection expenses amounted to R1,500.00. The first respondent did not intend to extort money but wished to recover its petrol, toll, and paperwork expenses. The first respondent withheld the refund because the applicant refused to pay the collection expenses.

24. The first respondent does not dispute that it repaired the motorcycle on its own initiative and without the applicant's consent or instruction. However, it argues that the functionality of the new starter could not be determined unless the gearbox was repaired.[4] Once the gearbox was disassembled, it became evident that the applicant had damaged it through driver error. Consequently, the first respondent expected the applicant to pay the expenses related to the repair of the gearbox.

THE RELEVANT LEGAL PROVISIONS

25. Section 53(1)(a) states that a defect means a material imperfection in manufactured goods or components or a characteristic that renders the goods less acceptable than persons generally would be reasonably entitled to expect. Per section 53(1)(b), a defect is any characteristic of the goods or components that renders the goods or components less useful, practicable or safe than persons generally would be reasonably entitled to expect in the circumstances. Section 53(1)(d) further defines goods as unsafe when, due to a characteristic, failure, defect or hazard, they present an extreme risk of potential injury or property damage to the consumer

or other persons.

26. Section 55(2)(a)-(c) states that consumers have the right to receive goods that are reasonably suitable for their intended purposes. They have a right to goods of good quality and in good working order. The goods must be free of defects and be usable and durable for a reasonable time.

27. 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.

28. 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.

29. Section 51(1)(b)(i) and (ii) states that a supplier must not make a transaction or enter into an agreement with a consumer that contains a term or condition to waive or deprive a consumer of a right stated in the CPA. It further states that the supplier must not make such a transaction or agreement with a consumer to absolve the supplier of its statutory obligations or duties in terms of the CPA.

30. Section 65 outlines a supplier’s responsibility to hold and account for a consumer’s property. Per subsection (2), when a supplier has possession of any property belonging to or ordinarily under the control of a consumer, the supplier:

(a) must not treat that property as being the property of the supplier;

(b) in the handling, safeguarding and utilisation of that property, must exercise the degree of care, diligence and skill that can reasonably be expected of a person responsible for managing any property belonging to another person; and

(c) is liable to the property owner for any loss resulting from a failure to comply with paragraph (a) or (b).

CONSIDERATION OF PROHIBITED CONDUCT

31. The following issues require determination:

(a) whether the motorcycle was defective at the time of sale;

(b) whether the first respondent deliberately concealed or misrepresented the nature of the defect;

(c) whether the terms of the sale agreement are lawful; and

(d) whether the first respondent properly cared for the motorcycle while in its possession.

Selling of defective and unsafe goods

32. The Tribunal has considered whether the first respondent’s conduct constitutes prohibited conduct[5] in terms of the CPA. In doing so, the Tribunal is mindful of its wide-ranging powers to make appropriate orders concerning prohibited

its wide-ranging powers to make appropriate orders concerning prohibited conduct.[6]

33. For the applicant to be successful in his claim for a refund of the purchase price of the motorcycle in terms of section 56(2), the requirements of the section must be met, namely that the motorcycle must have failed to satisfy the requirements and standards contemplated in section 55(2). The applicant’s case is that the motorcycle did not meet these standards. Importantly, it must be established that the motorcycle had a defect, failure or hazard or was unsafe per the definitions of these terms in section

53(1).

34. In Motus Corporation (Pty) Ltd and Another v Wentzel,[7] the Supreme Court of Appeal (SCA) held that not every small fault is a defect as defined. It must render the goods less acceptable than people generally would be reasonably entitled to expect from goods of that type or less useful, practicable, or safe for the purpose for which they were purchased.[8] The SCA opined that not every rattle or unfamiliar noise is a defect, that some defective modules may be readily replaced, as has occurred with the immobiliser, and that these issues do not render the vehicle defective enough to entitle the purchaser to return it and demand repayment of the purchase price.

35. According to the undisputed evidence before the Tribunal, the motorcycle’s starter was old and malfunctioning at the time of purchase. A malfunctioning starter can prevent the engine from starting, leaving the driver stranded and leading to further mechanical problems. A poorly functioning starter can also damage the engine's teeth or other components, especially if the starter gear is worn or damaged. If a faulty starter does not engage the engine's flywheel, the engine cannot be prevented from turning over and starting.[9] If the starter motor fails while the engine is running, it could further cause the engine to stall, posing a safety risk. Therefore, a faulty starter should be addressed promptly to prevent further issues and ensure the safe and reliable operation of the motorcycle.

36. The applicant convincingly argued that the motorcycle’s engine did not perform as expected and that the faulty starter was present at the time of purchase. The respondent’s hearsay evidence that the applicant did not know how to drive a motorcycle is rejected.

37. The Tribunal considered the seriousness of the defect and is persuaded that a faulty starter in a motorcycle can be a serious defect if not identified or repaired. The first respondent addressed the applicant’s concern on the day of purchase by charging the battery and upgrading the stator. These interventions did not resolve the problem. As a result, the faulty starter continued without repair and gearbox failure resulted.

38. The damage report confirms that the starter was faulty.[10] According to the evidence, the first respondent did not disclose the defective state of the motorcycle's starter before purchase.

39. Regarding the gearbox failure, the damage report outlines that the motorcycle could have been forced into second gear without engaging the clutch. The gear selector drum was consequently damaged, which in turn caused damage inside the transmission assembly of the engine. The extent to which a faulty starter can contribute to gearbox failure is unclear from the evidence. However, the Tribunal is persuaded that a malfunctioning starter, especially one that doesn't engage correctly or freewheels, can cause issues when the engine starts, which can strain the gearbox. This strain, especially if repeated, could lead to premature wear and tear on the gearbox components.[11]

40. As the applicant complained about the malfunctioning second gear as early as two weeks after delivery of the motorcycle, the Tribunal is persuaded that driver error before the date of sale could have contributed to the state of the gearbox, whilst driver error after the sale would have aggravated the state of the gearbox. Neither party provided conclusive evidence of when the gearbox became defective. Consequently, the Tribunal does not make any finding on whether the gearbox was defective at the time of purchase. Conversely, the Tribunal finds that the first respondent’s failure to advise the applicant of the starter's defective state aggravated the gearbox's state. As a result, the motorcycle failed to operate properly at high temperatures and slipped out of second gear into neutral while in motion. On 16 May 2023, the motorcycle failed while the applicant was commuting to work, nearly causing a collision with an oncoming vehicle.

41. This incident is undisputed before the Tribunal and confirms the unsafe condition of the motorcycle. The motorcycle’s failure to operate properly is no minor issue and would render the motorcycle unsafe. The defective starter is, therefore, found to be a characteristic that presented an extreme risk of personal injury to the applicant. It posed a safety risk, rendering the motorcycle less useful, practicable or safe than persons generally would be reasonably entitled to expect. As the malfunction occurred within the first two weeks of purchase, the Tribunal is persuaded that the faulty starter constitutes a serious defect in this case.

42. A consumer has the right to usable and durable goods for a reasonable period. In this case, the applicant purchased a motorcycle, expecting it to be in good working order and defect-free. The Tribunal finds that a reasonable period should extend beyond two weeks after purchase.

43. The Tribunal finds that the motorcycle was unsuitable for its intended purpose: driving on the highway. It was neither of good quality nor in good working order. It was 'plainly' not safe and usable for a reasonable time. Therefore, the consumer was entitled to return the motorcycle at the respondent’s expense for a refund in terms of section 56(3)(b). The applicant executed this right and requested a cancellation of the purchase on 17 May 2023.

44. On 19 May 2023, the applicant issued a letter of demand to the first respondent, seeking a refund and cancellation of the sale due to the defects.[12]

45. The CPA aims to protect consumers from exploitation and abuse in the marketplace. It promotes an economic environment that supports and strengthens a culture of consumer rights and responsibilities. By failing to respect the consumer's right to be refunded, the first respondent has not only engaged in prohibited conduct as defined in the CPA but also infringed on the consumer's right to fair consumer practices and to receive safe and good- quality goods.

46. Consequently, the Tribunal finds that the first respondent transgressed section 55(2), read with section 56(1), and section 56(3)(b).

Agreement of sale

47. The first respondent was obliged to disclose all material facts and latent defects[13] at the time of sale. The first respondent should have informed the applicant of any problems, performance challenges or other deteriorating motorcycle parts before purchase. It did not. The first respondent informed the applicant that the motorcycle was in good condition. Moreover, defects that manifest after the sale are still covered by the implied warranty in section 56. In any event, the defective starter was not disclosed when the applicant signed the purchase agreement. The purchase agreement only refers to the motorcycle as goods sold “voetstoots”:

“The item sold is been sold as is in good running order and comes with no guarantee. I declare that the item sold is not stolen and no amounts are outstanding on it. The buyer takes full responsibility to ensure he/she is satisfied with the items and agrees to buy the item as is voetstoots. Any fines as of this day is the responsibility of the buyer.”[14] [sic]

48. A supplier cannot contract out of its liability under the CPA, except that sections 55(2)(a) and (b) do not apply to a transaction if the supplier expressly informed the consumer that the goods were offered in a specific condition and the consumer expressly agreed to accept the goods in that condition. Including a “voetstoots” clause without outlining the actual patent or latent defects constitutes an attempt to contract out of statutory liability under the CPA. The applicant’s acceptance of the motorcycle while signing a “voetstoots” clause thus does not negate the respondent’s responsibility for any undisclosed or latent defects under the CPA.[15]

49. Concerning the above provision, the sales agreement falls foul of the provisions of the CPA dealing with the validity of standard terms, especially section 51(1)(b)(i) and (ii), which prohibits terms that directly or indirectly waive consumers of a right in terms of the CPA or avoids the supplier’s obligations in terms of the CPA.[16]

The motorcycle in possession of the first respondent

50. Under section 65(2)(a) and (b), a supplier must recognise the consumer's ownership or controlling rights when dealing with movable property delivered to the supplier. The supplier must also take reasonable care of such property according to how a reasonable person in the same position would handle it and not treat that property as being the property of the supplier.

51. When the motorcycle was collected from the applicant, the first respondent took possession of it to obtain an objective diagnostic report of the defects. The first respondent was obliged to ensure the motorcycle was kept safe and secure while obtaining a diagnostic report.

52. The Tribunal is persuaded that the first respondent did not take proper care of the applicant’s motorcycle while it was in its direct possession. According to the evidence before the Tribunal, the motorcycle underwent unauthorised repairs, and the final state of the motorcycle is not known. The levying of storage fees resulting from the safekeeping of the motorcycle is similarly found to be without basis.

53. The Tribunal, therefore, finds that the first respondent transgressed section 65(2)(a) and (b).

54. Further, section 56(2) does not give suppliers the right to choose the remedy for defective goods. It is a contravention of the CPA for the first respondent to insist on repairing the motorcycle when the applicant requests a refund as per the CPA. During the MIOSA investigation, the applicant agreed that the first respondent could obtain an independent assessment of the alleged defects. The first respondent abused the applicant’s trust by repairing the motorcycle without consent instead of obtaining an independent assessment. Hereby, the first respondent treated the motorcycle as its own property, made unauthorised repairs, and incurred expenses. Under section 65(3)(b), the first respondent would be liable to the applicant for any loss resulting from its failure to comply with section 65(2)(b) and cannot claim the unauthorised expenses from the applicant.

CONCLUSION

55. In the circumstances, the Tribunal finds that:

(a) the motorcycle was defective and unsafe at the time of sale;

(b) the first respondent failed to inform the applicant before purchase of the defects in the motorcycle;

(c) the terms of the sale agreement are unlawful insofar as it refers to the selling of the motorcycle “as is” without obtaining the applicant’s express agreement to the defective state of the motorcycle; and

(d) the first respondent treated the applicant’s motorcycle as the property of the first respondent while in its possession.

56. The Tribunal, therefore, finds that the first respondent contravened sections 55(2), read with section 56(1), section 56(3)(b), section 65(2)(a) and (b) and section 51(1)(b)(i) and (ii). The contraventions are declared prohibited conduct in terms of section 150(a) of the NCA.

RELIEF

57. The rights afforded to consumers under the CPA are there to protect them. An infringement of those rights could have serious financial consequences for a consumer. In this case, the applicant has been financially prejudiced by spending R57,500.00 in vain and his safety was compromised. This undoubtedly continues to cause him a great deal of distress. The applicant is entitled to a refund of the purchase price for the motorcycle.

58. The applicant requested the Tribunal to impose an administrative fine on the first respondent. The Tribunal is not persuaded that a fine is warranted in this instance since the first respondent initially tended to repairs and offered to refund the applicant the purchase price (except for his R1 500.00 costs).

ORDER

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

59.1. It is declared that the first respondent contravened:

59.1.1. section 55(2), read with section 56(1);

59.1.2. section 56(3)(b);

59.1.3. section 65(2)(a) and (b); and

59.1.4. section 51(1)(b)(i) and (ii).

59.2. The contraventions listed above are declared prohibited conduct.

59.3. The first respondent shall refund the applicant R57,500.00, the purchase price paid for the motorcycle. The first respondent shall make this payment into a bank account elected by the applicant within 10 business days from the date of the issuing of this judgment.

59.4. There is no cost order.

DR. MC PEENZE PRESIDING MEMBER

Tribunal members Adv C Sassman and Mr CJ Ntsoane concur.

[1] This section provides that the Tribunal or a member of the Tribunal acting alone in accordance with the NCA or the CPA may adjudicate in relation to any allegations of prohibited conduct.

[2] The stator of a motorcycle serves as a crucial component of the electrical system, responsible for generating electrical power to recharge the battery and power the motorcycle’s electrical components.

[3] The stator and the starter motor in a motorcycle serve different functions in the electrical system. While the stator is part of the charging system, generating electricity to keep the battery charged while the engine is running, the starter motor is an electric motor that spins the engine to initiate the combustion process, enabling the engine to start.

[4] See page 30 of the record

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

[6] See National Credit Regulator v Dacqup Finances CC trading as ABC Financial Services – Pinetown and Another (382/2021) [2022]

ZACSA 104 (24 June 2022).

[7] [2021] ZACSA 40; [2021] 3 All SA 98 (SCA) (13 April 2021).

[8] Ibid at pare [41].

[9] See Haynes Motorcycle Manuals at https://haynes.com/en-gb/motorcycle-manuals-1.

[10] See page 18 of the record.

[11] See Haynes Manuals supra at: https://haynes.com/en-gb/tips-tutorials/5-ways-your-starter-motor-can-fail-and-what-do-about- it#:~:text=The%20simplest%20cause%20of%20this,torque%20to%20crank%20the%20engine.

[11] See Haynes Manuals supra at:

https://haynes.com/en-gb/tips-tutorials/5-ways-your-starter-motor-can-fail-and-what-do-about- it#:~:text=The%20simplest%20cause%20of%20this,torque%20to%20crank%20the%20engine.

[12] See page 75 of the record and evidentiary documents attached.

[13] Le Roux v Zietsman and Another (330/202) [2023] ZASCA 102 (15 June 2023) para 20.

[14] See page 11 of the record.

[15] Also see Vonk v Willow Crest Motors CC (NCT/115078/2018/75(1)(b)) [2019] ZANCT 63 (6 April 2019).

[16] Kwamashu Bakery Ltd v Standard Bank, Commercial Law Report (1994) 156 (D & CLD) at 178.