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[2019] ZAGPPHC 522
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Wentzel v Autofit Fitment Centre Renault (Pty) Ltd-Zambezi and Others (34022/ 2018) [2019] ZAGPPHC 522 (19 July 2019)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST
TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 34022/ 2018
19/7/2019
In
the matter between:
ABIGAIL
WENTZEL
APPLICANT
And
AUTOFIT
FITMENT CENTRE RENAULT (PTY)
LTD
-ZAMBEZI
FIRST RESPONDENT
RENAULT
SOUTH AFRICA (PTY) LTD
SECOND RESPONDENT
THE
MOTOR FINANCE CORPORATION (PTY)
LTD
t/a
M.F.C.
THIRD RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
The applicant launched an application for payment in an amount of
R256 965.84, being alleged
purchase price of the vehicle, a Renault
Kwid, and tenders the return of the vehicle. The application has been
launched on the
premise that the first and second respondents ("the
respondents") have breached the Consumer Protection Act, 68 of
2008
("CPA"), specifically sections 49(1)(b), 55 (2)(b) and
(c), and 56(2)(b)-56(3).
[2]
It is common cause that the applicant purchased a new vehicle from
the first respondent
for an amount of Rl31 491. 23 on 7 December
2017. The purchase price, service maintenance plan, finance and
interest totalled an
amount of R256 965.84.
[3]
According to the applicant when she
started the aforesaid vehicle while it was still on the showroom
floor, she heard a ticking
and or rattling sound coming from the
front part of the vehicle. She immediately asked the first
respondent's sales representative
by the name of Nicolas Andrade
about the sound1 as same was alarming, and he replied that it was a
very common noise on the Kwid
{the model of the new vehicle) that all
of them have it, and that it is simply just the navigation system
starting up.
[4]
On 11 December 2017, the applicant
called the representative of the first respondent, to inform him that
the said noise had gotten
more intense1 and that the new vehicle's
hazards lights have now started flashing when the vehicle is started,
which was further
accompanied by the rattling noise. The said
representative informed her that he was going to speak to the service
department and
revert to her. On the 14 December 2017 she had not
heard from the said representative, she sent him an email inquiring
when the
problems could be fixed. She further stated in the email
that she had detected further defect with regard to the air
conditioner,
which was not working properly, as same did not produce
and or emit cold or cool air. She attached annexure B email dated 14
December
2017.
[5]
On 19 December 2017 she received an email from the representative of
the first respondent
advising her to bring the vehicle the following
Monday, which she did. She was informed by one Danie, a mechanic or
technical manager
of the first respondent, that the new vehicle was
sold to her with a faulty immobilizer “module". She was
further advised
that as a result of the replacement of the "module",
that the vehicle's control central locking was now functional. She
had not been aware that this feature on the new vehicle was broken
and or faulty.
[6]
The applicant collected the vehicle from the service department of
the first respondent
on 19 Decembers 2017. On the same date she
noticed that the Blue tooth would stop functioning once the vehicle
exceeded the speed
of 70 km/h. On the course of the subsequent few
days she noticed further components in the new vehicle giving
trouble. She consequently
contacted the second respondent
telephonically, and was advised to contact the Motor Vehicle Industry
Ombudsman of South Africa
(MIOSA)) for possible assistance.
[7]
On the 15 January 2018 she informed Nicolus of the screeching noise
of the brakes, the rattling
on the driver's front window, and that
the braking system was uneven, on 25 . January2018 she sent a photo
marked annexure E to
the first respondent to show that the roof rails
were defective, and pulling away from the vehicle. The roof rails
were subsequently
"super glued" In place by the first
respondent as they did not have the necessary tools.
[8]
On 14 March 2018 the applicant
returned the vehicle to the first respondent. The vehicle she
contended suffered from the following,
inter
alia:
8.1
A
rattling sound coming from the front of the vehicle, to the extent
that the hazard lights come on;
8.2
the
air conditioning system Is not blowing cold air;
8.3
the
vehicle had a faulty "module";
8.4
the
central locking system did not work and or was faulty;
8.5
the
foot brakes were faulty and screeched;
8.6
the driver's side window is loose, and
railed while driving the vehicle;
8.7
the Bluetooth car kit and or system does
not
work
when
the vehicle exceeded 70km/h;
8.8
the
roof rails started to pull off of the vehicle;
8.9
the back panels of the vehicle started
to pull off;
8.10
the vehicle makes a ticking sound
(separate to the sound recorded herein above), at the front left-hand
side of the vehicle;
8.11
emergency mobilizer activating at
unexpected times;
8.12
navigation system had a loose connection
causing certain ticking noises;
8.13
roof racks began coming loose after
again after
being
replaced.
[9]
On 14 March 2018 Mr Werner Petzer the first respondent's dealer
principal acknowledged
the defects on the vehicle and offered to
purchase the vehicle from her (much like a trade-In) at its current
"blue book"
value, and would attempt to restructure a more
promising vehicle finance agreement in order to purchase a "demo
model"
Renault Clio, which was a model provided to her as a
curtesy car during some of the repairs. This conduct is in
contravention of
section 68(1)(c) as the first respondent attempted
to alter or proposed to alter the terms and conditions of a
transaction or agreement
with her as the consumer, to her detriment.
[10]
The applicant contended that the first
and second respondents contravened sections 49(1)(b); 55(2)(b)(c} and
56((2)(a)(b) and {3
of the Act in that:
10.1
failed to draw her attention to the fact
that the agreement included an assumption of risk or liability by the
respondents, in any
manner that satisfies the formal requirements of
section 49(3) to (4);
10.2
failed to deliver to the applicant a
vehicle that is of good quality, in working order and free of any
defects and that is useable
and durable;
10.3
failed to repair or replace the vehicle
and refund the applicant with the price for the vehicle;
104 failed
to properly and satisfactorily and or completely repair the vehicle
and or the defects.
10.5 further
defects have since come to light.
[11] The
applicant referred the dispute and issues herein to the Motor
Industry Ombudsman of South Africa
(MIOSA). It would seem that the
first respondent has also responded to MIOSA. however, it would seem
that there was delay or inaction
in finalising the dispute by MIOSA.
She cannot refer the matter to the National Consumer Commissioner
while the matter Is still
pending before MIOSA. She finds herself
obliged to approach court for the relief set out herein above.
[12] The
applicant contended further that she has exhausted all remedies
provided to her in term of section
49(1)(b); 55(2)(b)(c) and
56(2)(a)(b) & {3).
[13]
The respondents in opposing the
application raised points
in I/mine,
In that:
13.1.1 the
applicant failed, In terms of 69(a)(b) and(c) of the CPA to refer the
matter to the Tribunal;
the applicable industry ombud with
Jurisdiction; to the applicable industry ombud; accredited in terms
of section 82(6); to the
consumer court; alternative dispute
resolution and filing a complaint with the Commissioner;
13.1.2 the
applicant has referred the matter to MIOSA, has therefore acted in
terms of section 69
of the Act and MIOSA and the latter has not made
a ruling and therefore the matter is still pending before MIOSA;
13.1.3
The applicant has therefore approached this Court prematurely
13.2.1
The matter is
lis pendent
before MIOSA and in terms of section
69 of CPA this Court cannot adjudicate over this matter.
13.3.1
the applicant has failed to comply with the provisions of rule 18(6)
of the Uniform Rules of
Court in that she failed to annex a copy of
the agreement to her founding affidavit.
13.4.
there
Is patently foreseeable dispute of facts, in that:
13.4.1
the
respondents, in so far as the alleged faulty brakes, which is denied,
the sound was due to lack of ABS and simply required to
be deglazed;
13.4.2
the
respondents dispute the mechanical condition of the car and contends
that;
(I)
it
cannot be resolved without expert evidence, cross examination of
witnesses;
(II)
applicant
was warned through her attorneys of disputes of facts;
(iii) the
alleged foot brake sound, only required glazing, which was done;
(iv)
the droning of the Blue tooth was
as the result of the natural normal running noise of a Renault Kwid;
(v)
the
roof rails were repaired;
(v1) the dispute of
facts is Incapable of being resolved on affidavits.
[14]
The respondents contend further,
inter
a/la,
that:
AD
MERITS
14.1
there is no entity called Renault
Proprietary Limited Zambezi Dealership and that the correct citation
is Motus Corporation Proprietary
Limited trading as Zambezi Multi
Franchise;
14.2
there is no Act Companies Act 61 of 1993
but only the Companies Act No 61 of 1973 and the
Companies Act No 71
of 2008
;
14.3
the respondents deny having breached any
warranty or any agreement between the parties or any provision of the
CPA;
14.4
in terms of the agreement the plaintiff
is not entitled to cancel the agreement;
14.5
the applicant failed to Inform the
respondents in writing of the extent and nature of complaint, and
failed to refer the matter
to Ombud of Motor Industry in terms of
clause 6.1 of the agreement;
14.6
the applicant has been driving around
with the vehicle as there is no alleged defect claimed and or
complaint that the respondent
has rendered the vehicle unusable;
14.7
After each and every repair effected by
the respondents, the applicant never brought the vehicle back nor
complained of any further
defect;
14.8
it is denied that there was any defect
with the air conditioning and the vehicle was never brought back for
such repair;
14.9
the first time the applicant brought the
vehicle back for repairs was on 27 December 2017;
14.10
it is denied that ether vehicle was sold
with a defective locking system, or any faulty module with the
central locking system;
14.11
whatever fault that occurred thereafter,
this was repaired and returned to the applicant in a good working
condition,
14.12
regarding the Bluetooth system
malfunctioning, the applicant only complained about this on 23
::.February 2018 when she complained
of the noisy brakes;
14.13
the only repair to the car was the
glazing of the brakes as the vehicle had no ABS; and the roof rails
were replaced as curtesy.
14.14
the drowning of the Bluetooth was not a
problem but simply the natural high noise level of the car;
14.15
the respondent attended to the
complaints of the applicant reported on 27 December 2017, 23 January
2018 and 23 February 2018.
14.16
the applicant elected to have the
vehicle repaired, which repairs were done, and she is therefore not
entitled to cancellation and
or refund of the purchase amount.
[15] With
regard to the points
in limine
raised by the respondents, I am
of the view that these stand to be dismissed for the reasons stated
herein below:
15.1
The applicant contended that she
exhausted all remedies provided to her in term of
section 49(1)(b)
;
55
(2)(b)(c) and
56
(2)(a)(b) & (3). In my view, consideration of
these remedies require a pragmatic approach.
[1]
It brooks no argument that traversing each and every remedy, presents
time frames and expenses. It could hardly have been the Intention
of
the Legislature, to create a much more laborious and expensive
mechanism for consumer to follow, before approaching the court.
In my
view, it was not the Intention of the Legislature, that in exhausting
the remedies available, it was meant that the consumer
must travers
all the labyrinths of every available remedy, before approaching a
court. That type of approach would be prejudicial
to consumers,
firstly in that it would be a laborious and expensive process;
secondly by the time the consumer had exhausted all
the available
processes, would be met with prescription by the time he /she
approaches the Court. In my view, It suffices if the
consumer has
embarked on at least one of the available remedies, as the applicant,
in casu,
did
by approaching MIOSA, which she found wanting.
Vide
S v Barends
[2]
This must be so because
sections 69
and
70
are not couched I peremptory terms, and therefore it is open
to the consumer to pick and choose one of the alternatives available;
vide Imperial Group (Pty) ltd t/a
Auto Niche Bloemfontein v MEC: Economic Development, Environmental
Affairs and Tourism Free State
Government and Others.
[3]
In the circumstances, I find that
the applicant has substantially complied with the requirement that
she exhaust the remedies afforded
her before she could approach the
court;
15.2
In respect of the
lis
pendent, I find also that in view of
the withdrawal of the matter before MIOSA, there is therefore
no
lis
pending and accordingly the
applicant is properly before this court.
15.3
in respect of the alleged none
compliance with
rule 18(6)
, I am of the view that then fact that the
applicant did not attach to her founding affidavit the purchase
agreement, the respondents
have not been prejudiced thereby. Besides,
they cured whatever defect, If any, by such production. Besides, the
affidavit contained
all the necessary averments required in motion
pleadings, unlike in trial matters where
rule 18(6)
is peremptory. I
am of the view that this point
in
limine
cannot succeed.
15.4
In so far as the Issue of dispute of
fact Is concerned:
(i)
it is instructive to refer to the matter
of
Plascon Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[4]
,
where the Court held that where factual disputes in motion
proceedings arose, relief may only be granted if the facts averred
in
the applicant's affidavit, that have been admitted by the respondent,
together with the facts alleged by the respondent, justify
the order
sought;
(ii)
it is common cause that the applicant purchased a new motor vehicle
from the first respondent;
(ii)
it is common cause
that she reported her complaints to the sales person of the first
respondent while the vehicle was still on the
showroom floor of her
complaints and subsequently shortly thereafter;
(iv)
It
is common cause that the first respondent had to fix some of the
complaints raised by the applicant, not only once, or twice
but
thrice;
(v)
It
Is common cause that, the first respondent had to glaze the breaks of
the new vehicle; work on the roof panels of a new vehicle;
(vi)
it
is common cause that in effort to ameliorate the problem, the first
respondent attempted to buy back the vehicle from the applicant
and
offered her a different model;
(vii)
regard
being had to the admitted facts, the denials by the respondents that
the defects were not material, cannot be sustained and
therefore,
need to be rejected and the version of the applicant be accepted as
most probable that the new vehicle was not in good
condition as would
be expected of a new vehicle.
(viii) accordingly the point
of dispute of fact, In my view must also fail.
[16] It is
important to have regard to the provisions of the Act which provides,
Inter alia, that:
16.1
The purposes of the
Consumer Protection
Act 68 of 2008
is,
inter alia,
to
protect the economic interests of consumers, develop effective
redress of the consumer (vide preamble of the Act); protecting
the
consumer from unconscionable, unfair, unreasonable, unjust or
otherwise improper trade practices; and deceptive unfair or
fraudulent conduct (vide s3(d);
16.2
The court is enjoined to develop common
law as necessary; to improve the realisation and enjoyment of the
consumer's rights in general,
and to promote the spirit, purposes of
the Act. (vide s4(2);
I am of the view that the courts
must take a robust approach towards the economic giants, such as the
respondents
in casu,
who can flex their financial muscle to
bully unsuspecting consumers to accept flawed goods, and raise all
sort of spurious defences
and denials. In this case there were too
many flaws or defects for a new vehicle. I am inclined to learn
towards protecting the
rights and interest of the applicant. ,
16.3
The Act accords the consumer the right
to be supplied with good quality goods, which are in good working
order and free of any defect,
reasonably suitable for the purposes
they are intended for (s55(2). In my view, for anew vehicle to have
so many defects, some
pointed out whilst it was still on the
showroom, can hardly be said to be of a good quality.
16.4
The applicant, as a consumer, has
Inter
alia,
a right, within six months of
delivery, to return the goods without any penalty and be refunded
full purchase amount, the consumer
may require the supplier to repair
the goods or replace the goods. If the repair falls or further
defects are discovered the supplier
must replace the goods or refund
the consumer the price paid by the consumer for the goods; (s56(2).
The applicant returned the vehicle
to the first respondent on more than one occasion. She complained on
further subsequently discovered
defects. The fact that she Initially
chose to have the vehicle repaired, does not obliterate her right to
demand repayment or replacement
of the goods.
The admission by the respondents
that the vehicle made naturally high noise level, buttress the
applicant's contention that the
Bluetooth was drowned by the noise. I
would have expected the first respondent to have pointed this alleged
natural large noise
aspect to the applicant before she took delivery.
I am not persuaded by the respondent's contention. In my view, the
vehicle right
from the onset, was simply not of good quality any
version to the contrary must be rejected, as I do.
16.5 Section
69(d) provides that a consumer may approach the court having
jurisdiction over the matter, if all
other remedies available to that
person in terms of the national legislation have been exhausted. In
this regard, as already pointed
out herein above, I am satisfied that
the applicant has satisfied the provisions of this subsection.
16.6 Taking all
the circumstances of this case, the balance of probabilities, favour
that the applicant be refunded
the full purchase amount of the
vehicle together with interest.
[17]
On
the 4 September 2018 the matter served in the unopposed court roll,
after the respondent had served a Rule 30 notice, contending
non-compliance with rule 18(6). The matter was removed from the
unopposed roll and it was ordered that costs will be costs in cause.
It is trite that costs follow the event. In the exercise of my
discretion, such reserved costs, are to be borne by the respondents
as well, primarily because the applicant is the successful party.
[18]
I
do take into account the fact that the applicant, does not have a dip
pocket as compared to the respondents. She must have been
highly
prejudiced and inconvenienced In having to seek redress from the
respondents. The dictates of fairness demand that a punitive
costs
order be awarded against the respondents. This will compel the
respondents to ensure that they sell to the public;: good
quality
commodities. in the exercise of my discretion the respondents are
mulcted with attorney and client costs order.
[19]
In
the premises the following order is Issued:
1.
That
the respondents are jointly and severally, the one paying the other
to be absolved, ordered to repay the applicant the total
purchase and
finance charges for the Renault Kwid in an amount of R256 965.84
within fifteen (15) days of this order;
2.
That
the aforesaid amount shall be paid to the trust account of the
applicant's attorneys of record, within fifteen (15) days of
service
of this order;
3.
That
the respondents, are jointly and severally, the one paying the other
to be absolved, ordered to pay taxed or agreed costs on
attorney and
client scale.
4.
That
the applicant returns the relevant vehicle to the premises of the
first respondent, on the date of payment of the amount mentioned
in
order 1 above.
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT
19/07/2019
APPLICANT'S
ADV
ADV QUINTEN SAM van der HEEVER
INSTRUCTED
BY
ELLIOT ATIORNEYS
RESPONDENTS'
ADV ADV R.
CARVALHEIRA
INSTRUCTED
BY
DREYER ENGELBRECHT
ATIORNEVS INCORPORATED.
[1]
Vide Weenen Transitional local Council v Van Dyk where the Court
advocated a common-sense approach by asking whether the steps
taken
were effective to bring about the exiglbillty of the claim measured
against the Intention of the legislature.
[2]
2017 (1) SACR 193
(NCK) at 197 para [71a-198f. 7].
[3]
[2016] 3 ALLSA 794
(FB) at 43.
[4]
[1984] ZASCA 51
;
1984 3 SA 623
(a) AT 634e-l.