Yet another used car dealer got a hiding at the Consumer Tribunal for selling a consumer a defective car and then refusing to fix it.
The National Consumer Tribunal has ordered a used car dealer from Kempton Park to refund a consumer R146 000 for a defective used car that it failed to repair after the consumer complained. When the consumer then decided to cancel the transaction, the dealer refused.
After telling the dealer that she does not want to buy an accident-damaged vehicle, the consumer bought a used 2013 Audi A4 from Nolly Motors in April 2022 for R146 000, but two days after she collected the car, she noticed it had defects that included:
- a leaking overflow tank/reservoir which subsequently caused the engine to overheat
- poorly fitted suspension made of substandard materials
- a brake fluid leak
- all four tyres were worn out
- the car had no service history book and
- the car had no jack, wheel spanner or spare wheel, despite Nolly Motors promising they would be included when the sales agreement was concluded.
She informed the dealer of the defects and requested Nolly Motors to repair the car, but it was not done.
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Prohibited “voetstoots” clause
The purchase agreement contained these provisions that contravene the CPA:
“All cars purchased at Nolly Motors are sold as they are; customers must check everything before they can take the car. Should the customer experience any problems with the car, the dealership will only be responsible for the fixing of all electrical problems only for the first 30 days.
There is no exchange after 3 days of purchase. Should the customer decide to terminate the deal, 50% will be deducted from the full deposit paid. There will be no refund of deposit should the client decide not to take the car. The goods will therefore be sold as is.”
The consumer got a quote for new tyres of R6 160 and took the car to another workshop for repairs that cost R8 440 for replacing the water pump, resealing the front cover and the addition of anti-freeze.
The consumer then requested Nolly Motors to cancel the sales agreement and request a full refund, but the dealer refused to cancel the transaction. She said she wanted to cancel because she could not afford the repair costs.
She also discovered that the car had been involved in an accident, contrary to her explicit stipulation before the sale that she did not want to buy an accident-damaged vehicle, and that the vehicle was sold “voetstoots,” contrary to the provisions of the Consumer Protection Act (CPA).
The consumer took the car for further repairs costing R33 842.
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NCC referred the case to the Consumer Tribunal for contravening sections of the CPA
When the National Consumer Commission (NCC) investigated the consumer’s complaint and when it could not be resolved amicably, it referred it to the Consumer Tribunal. The NCC asked the Consumer Tribunal to declare that Nolly Motors contravened section 56(2)(a) and (b) read with section 55(2)(a) to (c), as well as section 48(1)(b), and (c) read with section 51(1)(a) and (b) and that these contraventions be declared prohibited conduct.
The NCC also wanted the Consumer Tribunal to interdict the dealer from engaging in similar conduct, order the dealer to refund the consumer the purchase price as well as the costs of the repairs and fine the dealer R1 million for prohibited conduct.
According to section 55(2)(a) and (b), every consumer has the right to receive goods that are reasonably suitable for their intended purpose, of good quality and usable and durable for a reasonable period.
Section 56(2)(a) and (b) stipulates that a consumer can return goods to the supplier without penalty within six months, and the supplier must repair or replace the unsafe or defective goods. The consumer can choose to have the goods repaired or replaced.
ALSO READ: Another used car dealer pays the price for selling a defective car
Consumer Tribunal judgment
The Consumer Tribunal found that by refusing to repair or refund the consumer the purchase price, Nolly Motors indeed contravened sections 56(2)(a) and (b) of the CPA read with 55(2)(a) to (c).
Handing down the judgement, the Consumer Tribunal ruled that Nolly Motors must refund the consumer the full purchase price of R146 000 and collect it at its own expense. The Consumer Tribunal did not order a refund of the repair costs because some of the repairs were done outside the six months that consumers have to complain about defects, while the NCC made no case for a refund of these costs.
The Consumer Tribunal also did not fine Nolly Motors, because the dealer has a clean record and only now contravened provisions of the CPA.
In addition, the Consumer Tribunal said the refund of the car’s purchase price against the return of the vehicle, which obviously would have diminished in value due to the lapse of time and its use, would be reasonable in the circumstances and serve as a deterrent for the dealer and other used car dealers. Therefore, it did not impose an administrative fine.
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No fine for “voetstoots” clause but a warning from the Consumer Tribunal
While the unfair contract terms were not adjudicated due to being lodged after the three-year limit outlined in section 116 of the CPA, the Tribunal still found that Nolly Motors’ terms and conditions contravene the CPA. Their terms stipulate that the car was sold “as is” and without warranty, finding that these terms do not override the consumer protections enshrined in the CPA.
“The NCC welcomes this judgment of the Consumer Tribunal, as it reaffirms the importance of suppliers to respect consumer rights in the marketplace. This judgment should serve as a deterrent to other suppliers from engaging in similar conduct,” Hardin Ratshisusu, acting commissioner of the NCC, says.
