The “hot hatchback” turned into a hot potato for a car dealer who contravened several sections of the CPA.
The High Court in Cape Town confirmed a decision of the National Consumers Tribunal that a used car dealer in the city must refund a consumer for selling him a “hot hatchback” for his son for R568 000. The dealer must also pay a fine of R50 000 for contravening the Consumer Protection Act.
The consumer first took his complaint to the Consumer Tribunal, where Wingfield Motors, trading as Best Price For My Car, was fined R50 000 and ordered to refund the consumer for the 2017 Ford Focus RS 2.3 EcoBoost. Best Price For My Car then turned to the High Court to appeal and set aside the decision.
However, Judge Lister Nuku and Judge Stanley O’Brien agreed with the Consumer Tribunal and dismissed the appeal and application with costs.
The consumer’s son took the car twice for a test drive before the consumer bought it, while the dealer also sent it to Dekra for an assessment and a report on its condition. However, the assessment did not include a full diagnostic test.
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Car trouble started three days in, Consumer Tribunal was told
Three days after picking up the car, the consumer complained to Wingfield Motor that a burning smell was coming from the rear wheel and that the car’s clutch ‘did not feel right’. Wingfield Motors’ general manager said the consumers must take the car to a Ford dealer for assessment, as the car was still under warranty and had a maintenance plan.
The other dealer could only accept the car a few days later. Wingfield argued that the consumer drove about 59 km per day while he waited, which Wingfield considers excessive by normal standards.
After inspecting the car, the dealer noted that the clutch and flywheel were burnt and there was excessive play on the clutch kit. The total estimated costs to repair the damage to the clutch and flywheel amounted to approximately R62 218.19.
These costs were not covered by the manufacturer’s warranty, and the dealer wanted the consumer to pay for the repairs before fixing the car. The consumer wanted Wingfield to cover these costs, but it refused to.
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Dealer will refund, but wants consumer to pay for usage and depreciation
The consumer then instructed his attorney to write to Wingfield Motors to take the car back and refund him. The consumer also lodged a complaint with the Motor Industry Ombudsman of South Africa (MIOSA). MIOSA assessed the complaint alongside Wingfield’s response and concluded that it could not support the consumer’s expectations.
According to MIOSA, clutches are wear-and-tear frictional items, and neither the manufacturer nor the dealership has control over the driving style of the driver. The pressure plate also had burn marks.
Wingfield Motors later agreed to take the car back and refund the consumer but disagreed about the basis of the refund. Wingfield wanted to pay the whole refund to the bank that financed the car as well as the deposit the consumer paid.
FirstRand Bank would then refund the consumer all the instalments paid. The consumer would pay R32 595.60 for usage, calculated at R4.60 per kilometre driven, plus an additional R27 149 for depreciation.
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Consumer willing to pay for usage, but not depreciation – ends up at Consumer Tribunal
The consumer accepted responsibility for usage but not for depreciation. He then submitted a complaint to the National Consumer Commission (NCC). The NCC investigated the complaint and referred it to the Consumer Tribunal, claiming that Wingfield had violated the provisions of sections 55(2)(a) to (c), 56(2)(a) and (b), and 13(1)(a) and (b) of the Consumer Protection Act (CPA).
Wingfield opposed the proceedings before the Consumer Tribunal, but in the end the Tribunal issued a decision that, among other things, found Wingfield in breach of section 55(2)(a) to (c) of the CPA, ordered it to refund the consumer the purchase price and imposed an administrative penalty of R50 000.
The NCC opposed the appeal and/or review on various grounds, including the High Court’s lack of jurisdiction to hear the appeal and/or review, procedural irregularities affecting the appeal, whether it is competent to pursue an appeal and review of the Tribunal’s decision simultaneously, the introduction of new evidence on appeal and/or review, and the merits of the appeal and review.
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Judges agree with Consumer Tribunal – dealers’ stubbornness to blame
The judges said Wingfield Motors was, in terms of the CPA, required to cover the costs of repairs, and the dealership’s attempt to argue that this CPA section does not apply to used goods is misplaced. They pointed out it was Wingfield Motors’ stubbornness that caused the consumer to tender the return of the car within the six-month period specified in the CPA.
They also noted that when the consumer tried to return the car, Wingfield Motors tried to penalise him by claiming it was entitled to charge for depreciation, alongside the statutorily permitted deduction for motor vehicle use based on the mileage covered.
In addition, they noted that the dealership did not present any evidence to support its claim that the defects were caused by the way the consumer or his son drove the car. “The approach taken by Wingfield is detrimental to the very purpose of the CPA and the National Credit Act.
“Wingfield could have easily settled this issue at the point when the consumer merely asked Wingfield to pay for the repairs. Wingfield refused, despite the obligations imposed by the CPA. When the customer resorted to tendering the return of the car, as he is entitled to in terms of the CPA, Wingfield refused.”
If it were not for the intervention of the NCC and the Consumer Tribunal, the consumer would have been left out in the cold – and that would have completely undermined the provisions of the CPA. None of the grounds of appeal and/or review have merit and both should be dismissed with costs.”
