Van der Heyde v A to Z Motors CC (NCT/119741/2018/75(1)(b)) [2019] ZANCT 55 (5 April 2019)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/119741/2018/75(1)(b)

In the matter between:

MONICA

VAN DER MEYDE

APPLICANT

and

A

TO Z MOTORS CC

RESPONDENT

Coram:

Dr. MC Peenze: Presiding Member

Date of hearing: 28 March 2019

JUDGMENT

THE

PARTIES

1. The Applicant is Monica van der Meyde, an adult major female person (“the Applicant“).

2. The Respondent is A to Z Motors CC, a Closed Corporation that is duly registered in terms of the company laws of the Republic of

South Africa (“the Respondent”).

THE

APPLICATION

3. This is an application by the Applicant for leave to refer her

complaint, which was 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”).

4. In an application of this nature, the Tribunal must first consider

whether it will grant the Applicant leave to hear the matter. If the leave is granted, then the Tribunal will consider the merits of the Application.

5. The Respondent did not file a notice of its intention or any

answering affidavit to oppose the leave to refer application. The application had been set down on an unopposed basis.

BACKGROUND

6. The Applicant is a consumer, who purchased on 26 May 2017 a vehicle, a Nissan Murano 3.5l 2007 with registration number: VLX 684 GP (“the vehicle”) from the Respondent. She averred that the vehicle was in an excellent condition. The Respondent informed her that the Motor Finance Corporation would not grant her a loan if she did not take out a warranty, since the vehicle was a 2007 model. The Applicant later found out that this was not true, and that the warranty was not compulsory. The Applicant subsequently cancelled the warranty after a month of purchase, because she could not afford it.

7. The day after the purchase of the vehicle, the Applicant noticed that the headlights were not working. The Applicant could not understand this, as she was told that the vehicle went through a full AA inspection. The Applicant called the Respondent’s owner, Ben Olivier, who advised that the vehicle should be brought back to the Respondent. The Applicant returned the vehicle three times to the Respondent before the lights could function.

8. After a couple of weeks, the right head light stopped functioning.

The Applicant noticed that wind was coming in from the boot and that the boot lift gate was skew. The vehicle was again returned to the Respondent for repairs. The Respondent realised that there was gearbox oil dripping from the vehicle. The vehicle also went into a limp model and the CD player was not functioning. The petrol cap did not open as well.

9. In September 2017, the Applicant requested her husband to act as her agent and to contact Olivier again. The Applicant brought the vehicle to the Respondent for further repairs and Olivier took the vehicle to Autobox to have the gearbox repaired. This happened without the Applicant’s knowledge and permission. Later on, Olivier advised the Applicant’s husband that the warranty would cover the cost. The Applicant advised Olivier that she had cancelled the warranty. Olivier was furious and told the Applicant that she would have to pay the sum of R12 229.00 for the repairs.

10. The Applicant managed to track down the previous owner of the vehicle: Mr Isaac Nkosi (“Nkosi”), who told the Applicant that he had the same gearbox problems with the vehicle when he bought it in November 2015. It is the Applicant’s belief that the Respondent sold her a vehicle that it knew had gearbox problems.

11. The Applicant referred the matter to the Motor Industry Ombudsman of South Africa (“MIOSA”). After 7 months, the MIOSA found in the Applicant’s favour. When the Applicant went to collect the vehicle on 29 March 2018, they discovered that the vehicle was in a very bad state as it was parked outside. The new battery was dead and the vehicle was filthy. When the Applicant drove off, the vehicle struggled to go forward. There was no power and the gears kept on slipping. The vehicle was almost impossible to drive. It was clear that no work was done on the gearbox. The MIOSA advised the Applicant to take up the matter with the National Consumer Commission (“NCC”). On 3 October 2018, the NCC issued a notice of non-referral.

12. The Applicant approached the Tribunal after receiving a notice of non-referral from the NCC. Subsequently, the matter was set down for the hearing of an Application in terms of Section 75(1)(b) of the Act.

THE

APPLICATION FOR LEAVE TO REFER HEARING

13. A hearing was convened for and held on 28 March 2019 in Centurion.

14. The hearing was initially set down for the consideration of an Application for Leave to Refer by Two Applicants, namely:

First Applicant: Braam van der Meyde

Second Applicant: Monica van der Meyde

15. During the Hearing on 28 March 2019, it was established that the “then Second Applicant”, Monica van der Meyde, was the owner of the vehicle that was sold to her as the consumer in this matter. It was further established that the “then First Applicant”, Braam van der Meyde, was the Second Applicant’s husband with whom she is married out of community of property; and that the “then First Applicant” had no locus standi at the proceedings. After discussion, the “then First Applicant” withdrew from the matter as a party to the case and the matter continued only against Monica van der Meyde as “Applicant”.

16. At the hearing on 28 March 2019, the Respondent also appeared in person, irrespective of the fact that no opposing documents had been filed to oppose the Leave to Refer Application. The Respondent advised the Tribunal that it would like to oppose the main matter.

17. The Tribunal advised the Respondent that the Hearing on 28 March 2019 was intended to consider only whether there are adequate grounds to refer the Applicant’s matter directly to the Tribunal for adjudication in terms of Section 75(1)(b) of the Consumer Protection Act. The Tribunal outlined that, if the ruling is in favour of the Applicant, the main matter will be set down by the Registrar for adjudication. The Tribunal also outlined that the Respondent should adhere to the timeframes to be advised by the Registrar, for the submission of its Answering Affidavit and other supporting documents as required, in order to oppose the main matter. Hereafter, the hearing continued on an unopposed basis and both the “then First Applicant” and the “Respondent” stayed to observe the proceedings.

18. The Respondent confirmed that they are not opposing the leave to refer application.

19. The Applicant explained her case and detailed her motivations for alleged contraventions of the Consumer Protection Act, with reference to her affidavit as submitted. In particular, she submitted that the matter was of grave importance to her and that she would like to be refunded in terms of the Consumer Protection Act. The Applicant stated that she had lost complete faith in the ability of the Respondent to repair the vehicle and that she wanted to be refunded what she had paid for the vehicle or that the vehicle is repaired by another properly accredited dealership.

CONSIDERATION

OF THE MERITS OF THE APPLICATION FOR LEAVE

20. The Tribunal set out the factors that must be evaluated in order to ascertain whether to grant leave in Coertze and Burger v Young. [1] In that case, which has been referred to by the Tribunal in a number of other decisions,[2] the Tribunal held that the following two factors should be considered:

(1) The Applicant’s reasonable prospects of success with the referral; and

(2) Whether the matter is of substantial importance to the Applicant or the Respondent.

21. It is firstly very clear that the matter is of substantial importance to the Applicant. She worked closely with her husband and used him frequently as her agent. On her own, or together with her husband, she had gone to a great deal of effort to attempt to resolve the matter with the Respondent, to lodge the complaint with the MIOSA and the Commission and to pursue it further with the Tribunal. Her level of anxiety and frustration at having to drive a vehicle that she believes is unsafe, is plain to see. The Applicant explained that she does not have faith in the Respondent any longer and she needs a reliable vehicle to get by.

22. She also explained that it is her belief that the Respondent sold her a vehicle that it knew had gearbox problems. The previous owner seemed to have had gearbox problems and the Applicant alleged that the Respondent forced her to take out a warrantee plan to make use of an order to repair the vehicle after purchase.

23. According to the Applicant, she was without a vehicle for more than 14 months after purchase and had to make other arrangements during that period. It also seems as if the Applicant is paying monthly instalments and insurance on a vehicle that cannot be used, in addition to having had to apply to the Motor Finance Corporation to freeze some of her instalments; and that her new instalments will be higher now than 14 months ago.

24. The Applicant had identified a number of sections in the Consumer Protection Act which she argued are relevant to her matter. These include section 54, section 55 and 56 (3).

0cm; line-height: 200%">25. Section 54 provides that a consumer is entitled to demand quality service. The Applicant alleged that throughout her dealings with the Respondent she had been treated poorly and therefore the Respondent had acted in contravention of this section. In terms of section 54(2), when a supplier fails to perform a service to the standards contemplated in the section, the consumer may require the supplier to remedy any defect in the quality of the services performed or goods supplied; or 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.

26. Section 55 of the Act deals with the consumer’s rights to safe, good quality goods. Applying this section to the Applicant’s matter, she had the right to receive a motor vehicle that was reasonably suitable for the purpose for which it was generally intended. The vehicle must be of good quality, in good working order and free of any defects and must be usable and durable for a reasonable period to time, having regard to the use to which vehicles of this nature would normally be put. The Applicant had argued that her vehicle was defective from within a month that she purchased it

and that her attempts to have this addressed by the Respondent were unsuccessful.

27. According to the Applicant, it is important to have a trustworthy vehicle in order to transport her children to school safely and to drive to work safely. The Applicant was under the impression that the vehicle was safe at the time that the vehicle was bought, but the vehicle is unusable and very unsafe because of the faulty gearbox and

lights not working, which makes night driving very dangerous.

28. The Applicant also referred to section 56 (3). In terms of this section, if a supplier repairs any particular goods or any component of any such goods, and within three months after that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must

replace the goods; or refund the consumer the price paid by the consumer for the goods.

29. The Applicant alleged that she purchased a defective vehicle and attempts to have the Respondent repair the vehicle have failed to the point where the Applicant has lost faith in the Respondent. This matter therefore clearly falls within the ambit of the CPA. It should be noted that, in line with section 56 (4) of the CPA, the implied

warranty imposed by 56(1) and the right to return goods set out in 56(2) are each in addition to any other implied or expressed warranty or condition stipulated by the producer or retailer.

30. In considering the reasonable prospects of success the Tribunal is satisfied that the Applicant has laid a foundation for a complaint in terms of the CPA. Should the Tribunal find that the Respondent

has contravened the Act and has engaged in prohibited conduct the Tribunal will have to decide on an appropriate remedy, including

whether or not it would be appropriate in these circumstances to impose an administrative penalty. This can only be done once all the issues are fully ventilated before the Tribunal.

ORDER

31. Accordingly, the Tribunal makes the following order:

31.1. The Applicant’s application for leave to refer the matter directly to the Tribunal is granted and

31.2. No order is made as to costs.

Dated at Centurion on this 5th day of April 2019.

[Signed]

MC

PEENZE

PRESIDING

MEMBER

[1] NCT/7142/2012/75(1)(b)&(2).

[2] See also Mbekeni v Freeway Toyota (NCT/36177/2015/75(1)(b) [2016] ZANCT 18 (1 April 2016) and Papo v Standard Bank of South Africa Ltd (NCT/69527/2016/14 [2017] ZANCT 81 (27 July 2017).