HIGH COURT OF SO U TH A FRI C A
(GA U TENG DMSIO N, PR ET ORIA )
C AS E NO: A68 /2025
(1) RE P O R TABLE: NO
(2) OF I TE R EST TO O T H E R JU D GES: NO
In the matter between:
(3) REV ISE D .
DAT E: lOC T.
S IGNATU R E
A VURA MOTORS t/a A VURA EXEC UTIVE A U TO
and
TH E NATIO N AL C ONS U MER COMMISSIO N
THE NATIO N AL CO N SU MER TRIB UN AL
VUKANI CO L IMEAR MUTHAKI
Appellant
First Respondent
Second R espondent
Third R espondent
Summ ary: National Consume r Tribunal - Finding that second-hand car
dealership had contravened sections 55(2)(a) and 56{2)(a) of the
Consumer Protection A ct 68 of 2 008 upheld - Finding based on sale
of a vehicle with a latent defect and failure to remedy defect or to
2
assist the consumer. Sanction of payment of repairs and fine of
RJOO 000.00 confirmed. Appeal dismissed with costs.
ORDER
The appeal is dism issed, with costs.
JUDGMENT
The matter was heard in open court and authored by the judge whose name is
reflected herein and was handed down electronically by circulation to the
parties' legal representatives by email and by uploading it to the electronic file
of this matter on Caselines. The date of handing-down is deemed to be 1 October
2025.
DA VIS, J (with Barn J concurring)
Introduction
[1] T he appellant, a second-hand car dealership, sold a pre-owned Mazda
vehicle to a consumer. Within 28 days from the date of sale, the vehicle
developed such radiator problems that it became inoperable.
3
[2] The appellant denied liability and refused to assist the consumer, who had
to resort to his insurer. The costs of repairs amounted to over Rl 00 000.00
[3] The National Consumer Tribunal (the Tribunal) found that the appellant
had contravened certain sections I of the Consumer Protection Act
2
•
[ 4] Pursuant to this finding, the Tribunal ordered the appellant to pay the costs
of the repairs and fined the appellant Rl00 000.00, which had to be paid into the
National Revenue Fund.
[ 5] The appellant appealed to this court in terms of section 148(2)(b) of the
National Credit Act3.
The background facts
[6] On 15 July 2022 the consumer, Mr Muthaki, purchased a pre-owned 2014
Mazda Drifter BT-50 vehicle from the appellant, Avura Motors t/a Avura
Executive Auto. The purchase price was R288 577.50 and the odometer at the
time was at 185 000km .
[7] Within 28 days from the date of purchase, the vehicle started manifesting
operational problems, to wit sounds coming from the engine and constantly
turning off.
[8] On 16 August 2022 the consumer telephonically complained of these
problems to the appellant, who indicated that "they" could not help as the
1 In particular, sections 55(2)(a)-(d) and 56(2)(a).
2 68 of 2008 .
3 34 of 2005 .
4
warranty they gave at the time of sale, expu:ed after 30 days or 1000 kms. Both
these elements had already been reached at the time of the complaint.
[9] Upon receiving no assistance from the appellant, the consumer sought
assistance from the Motor lndustly of South Africa (MIOSA).
[10] The appellant's response on 7 September 2022 to MJOSA reads as follows:
"Vehicle was delivered on 15 July 2022 and was not delivered with any latent
defects. These defects occurred after the sale. The customer does have an
extended warranty which will accommodate these issues within their terms and
conditions. We suggested that he use the warranty as we did not deliver this
vehicle with any latent defects at that point of time". Upon receipt of this letter
MIOSA found that the matter does not engage its jurisdiction and thereupon
closed its file.
[11] The consumer then took the vehicle to Northway Electro SA (Pty) Ltd on
11 September 2022 where he was quoted Rl 06 088.28 for the repair of the
vehicle.
[ 12] After acceptance of the quotation, the vehicle was repaired with the
consumer's insurance paying R75 000.00 and the consumer paying R31 088.28.
[13] The consumer then approached the National Consumer Commission (the
Commission) who investigated his complaint and verified the above facts,
including proof of payment.
[14] Included in the investigation report of an inspector of the Commission was
an assessor's report obtained by the consumer's insurance company at the time
that the vehicle was going to be repaired. The relevant parts of that report, read
as follows: "Details offailure:
5
Cylinder head casing corroded at all water jackets.
Clear signs that cylinder head gasket is blown with gasket
corroded/rusted at several locations ...
- • Radiator in good external condition but severely clogged with rust
and corrosion.
Thermostat in good condition but internally clogged with rust and
corrosion.
Assessor's remarks and conclusion:
Damage occurred due to overheating. Cause of overheating hard to
establish but likely due to water loss. As all cooling system
components are corroded and contaminated with rust, it is likely that
overheating occurred due to one or more failed cooling system
components due to prolonged operation with insufficient cooling
mixture. Engine to be reconditioned'.
The appellant's position
[ 15] In addition to the position set out in par [ 1 O] above, the appellant had the
following to say in its answering affidavit before the Tribunal in relation to the
cause of the engine failure: firstly, that it had the vehicle serviced on 17 May 2022
by Sam's Car Bar, that is prior to the sale. The appellant alleged that the cooling
system was part of the service and that no faults had been reported.
[ 16] Secondly, the appellant alleged that the engine failure was caused by the
respondent's own negligence. The appellant's reading of the assessor's report,
led the appellant to contend as follows: "The above assessors report confirms that
the failure occurred due to poor maintenance of the vehicle [ and that] any
failure/defect was due to the negligence of the consumer by failing to properly
6
maintaining (sic) the vehicle. [The appellant] is fully aware of the obligations
imposed upon it by the Consumer Protection Act and prides itself on the quality
and safety of the goods sold'.
The findings of the Tribunal
[ 17] After having considered all the documents submitted, as well as the
submissions made by the parties, the Tribunal considered the evidence as follows
(references to the respondent before the Tribunal are references to the appellant
before us and references to the applicant are references to the consumer):
"20. Neither party disputes the consumer's insurer's assessor
report and the damage to the vehicle indicated in it. However,
the respondent maintains that the damage was caused by the
consumer's own negligence in not sufficiently maintaining the
vehicle while using it. In contrast, the applicant alleges that
the cause of the damage was a latent defect present at the time
of the sale of the vehicle that only manifested some twenty
eight days later.
21. In terms of section 117, the standard of proof in proceedings
before the Tribunal is on a balance of probabilities. In this
respect, the Tribunal is persuaded that the assessor's finding
that damage to the vehicle was likely caused by water loss due
to the corrosion and rust contamination of all the cooling
system components cannot be attributed to the consumer's
negligence. The Tribunal is not convinced that the relatively
short period in which the applicant drove the vehicle can
account for the assessor's finding that there was a prolonged
operation of the vehicle with insufficient cooling mixture,
7
leading to possible water loss, rust and corrosion of all the
cooling components. On a balance of probabilities, the
Tribunal is inclined to agree with the applicant that this type
of corrosion and rust contamination was a latent defect in the
vehicle at the time of its sale.
22. No evidence before the Tribunal suggests that the damage
was caused by the consumer's negligence or normal wear and
tear while the consumer had the vehicle. By the respondent's
own admission during the hearing, the consumer was not
required to service the vehicle between the time he took
possession of it and the time it overheated. Further, there is
no evidence that the consumer ignored any warning signals
that the vehicle needed to be checked or that it was
overheating. There is, therefore, no evidence of any misuse of
the vehicle by the consumer or any failure to take reasonable
steps required to maintain the vehicle within the period of
usage.
23. The evidence before the Tribunal indicates that the vehicle
was defective when sold and that the defect only manifested
itself later. The evidence further indicates that the respondent
refused to repair the vehicle when the consumer requested it
be repaired. Therefore, the respondent's conduct amounts to
a contravention of sections 55(2) and 56(2)(a). The
contraventions are serious and amount to prohibited
conduct".
8
[18] Sections 55(2) (a)-(d)4 of the CPA provide that consumers have the right
to receive goods that are reasonably suitable for their intended purposes. They
also have a right to goods that are of good quality and in good working order. The
goods must be free of any defects and be useable and durable for a reasonable
period of time.
[ 19] Section 56(2)5 of the CPA provides that within six months after the
delivery of 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, at the direction of the consumer, either repair or replace the failed, unsafe,
or defective goods or refund the consumer the price paid for the goods.
[20] The Tribunal found that both these sections had been contravened.
The sanction imposed
[21] The Tribunal found that the rights afforded to consumers under the CPA
are there to protect consumers, and an infringement of these rights can have
serious financial consequences for consumers. Section 4(2)(b )(ii) of the CPA
requires the Tribunal to make appropriate orders to give practical effect to a
consumer's right of access to redress, which includes making any innovative order
that better advances, protects, promotes and assures the realisation by consumers
4 55(2) Except to the extent contemplated in subsection (6), every consumer has a right to receive goods that
(a) are reasonably suitable for the purposes for which they are generally intended;
(b) a re o f s oo d q u :,lity, in go o d \A/o rking o rdo r a nd froe of ~n y d e fects;
(c) be useable and durable for a reasonable period of time, having regard to the use to which
would normally be put and to all the surrounding circumstances of their supply; and
(d) comply with any applicable standards set under the Standards Act, 1993 (Act No. 29 of 1993),
or any other public regulation.
or any other public regulation.
5 56(2) Within six months after the 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, and the supplier must, at the direction of the consumer, either-
9
of their rights in terms of the CPA. Section 150(i)6 of the National Credit Act7
(the NCA) further empowers the Tribunal to make any appropriate order required
to give effect to a consumer's right in terms of the NCA or CPA when making a
finding of prohibited conduct.
[22] Accordingly, the Tribunal found it appropriate to order that the appellant
pay the costs of repair of the vehicle to the consumer and his insurer, in the
amounts ofR31 088.28 and R75 000.00 respectively.
[23] In considering the sanction of a fine, the consumer has suggested a: fine of
Rl million. The Tribunal, however, after having considered the nature, duration,
gravity and extent of the appellant's contraventions, the loss or damages caused
thereby, the behaviour of the appellant, the market circumstances in which the
contravention had taken place, the level of profit derived by the appellant, the
degree to which the respondent had co-operated with the consumer and the
Tribunal and the fact that the appellant had no history of prior contraventions,
imposed a fine ofRl 00 000.00.
Evaluation
[24] On appeal before us, Adv Botes SC , who appeared for the appellant, argued
that the "torpedo" which sunk the Tribunal's decision, was the fact that the
assessor had not been cal led to testify. Reliant on this fact, Adv Botes SC
contended that his report constituted inadmissible hearsay evidence.
[25] This point of law was not raised during the hearing before the Tribunal. It
is not the kind of question that can be raised for the first time on appeal, for it
would lead to prejudice to the consumer. Had the consumer been alerted to the
61S0(i) In addition to its other powers in terms of this Act, the Tribunal may make ... any other appropriate order
to give effect to a right, as contemplated in this Act or the Consumer Protection Act, 2008.
7 34 of 2005.
10
objection to the assessor's report being accepted into evidence without oral
confirmation, he could have called the assessor to verify his report and
conclusions. By only raising this objection for the first time on appeal, the
consumer would - if the point is upheld - unfairly, be deprived of his
opportunity to have led confirmatory expert evidence8•
[26] There is, however, a more fundamental issue, one which, in my view makes
the raising of this point more spurious than opportunistic. In the hearing before
the Tribunal, the appellant, both in it answering affidavit and in extensive oral
submissions on its behalf- regard being had to the record - relied heavily on
the contents of the assessor's report. This was done without any objection to its
admissibility or the lack of confirmatory expert evidence. I find that it amounts
to a "sharp practice"9 of a party to rely on a document (and its admissibility) when
it suits him, but then later, on appeal and after switching counsel, to attempt to
argue that the same document should be ignored and that the Tribunal must be
found to have e1Ted in not doing so.
[27] I find that the Tribunal had correctly relied on the contents of the assessor's
report and had correctly summed up the evidence. Despite the fact that the
vehicle had been serviced prior to the sale and that the coolant levels had been
checked (as was submitted orally on behalf of the appellant in the proceedings
before the Tribunal), it is clear from the description of the cooling system itself
by the assessor, that (i) the defect must have been a pre-existing one of long
duration and that (ii) the rust and contamination could not have occurred in the
28 days that the vehicle had-been in possession of the consumer.
8 See RAF v Mothupi 2000 (4) SA 38 (SCA) at par (30], relying on Paddock Motors (Pty) Ltd v lgesund 1979 (3) SA
16 (A) at 23 D - H .
9 A term borrowed from commercial behaviour and denoting something falling short of the expected ethical
standards. See Reynolds Presto Products Inc v PRS Mediterranean Ltd 2014 (5) SA 353 (GP) at (17) and (18).
11
[28] No evidence of any nature had been presented by the appellant of any
negligence on the part of the consumer, as alleged in the appellant's answering
affidavit. Moreover, the appellant's counsel at the time had conceded before the
T ribunal that there was no need for the consumer to have serviced the vehicle in
the 28 day-period or indeed, in the period up to when the vehicle was repaired.
There was also, so he conceded, no evidence of any warning light or other
indication that the consumer should have done anything to prevent the
overheating of the engine.
[29] On a balance of probabilities ( which both parties have correctly agreed is
the applicable onus in proceedings before the Tribunal)10 the vehicle was simply
sold with a latent defect which made it unsuitable for continued use without a
major overhaul. This latent defect was a grossly deteriorated and internally rusted
engine cooling system.
[30] In respect of the fine imposed, counsel for the appellant argued that he
could find no judgment providing guidance as to the extent of the fine which may
be imposed and that Rl00 000.00 was shockingly disproportionate, hence his
suggestion ofR20 000.00.
[31] Section 112(2) of the CPA provides for a cap or upper limit of fines which
may be imposed. The limit is 10% of the guilty party's annual turnover, limited
to a fine of Rl million. This is also the fine the Commission contended for in an
attempted cross-appeal, which was not pursued.
[32] The Tribunal has in recent instances imposed fines of R500 000.0011 and
Rl million
12
• Although the Tribunal had also previously, in a matter relating also
lO See also section 117 of the CPA.
11 National Consumer Commission v Cell C {11 February 2025).
12 National Consumer Commission v Braaiblock {Pty) Ltd (11 December 2024).
Date of Hearing: 14 August 2025
Judgment delivered: 1 October 2025
APPEARANC E S:
For the Appel !ant:
Attorney for the Appellant:
For the 1st & 2nd Respondent:
13
Adv F W Botes SC
Arthur Channon Incorporated Attorney,
Pretoria
c/o De Jager Incorporated, Pretoria
Attorney for the 1st & 2nd Respondent: Makhafola Attorney Inc, Pretoria
12
to the sale of a motor vehicle, impo sed a fine of R 50 000.0013, there is nothing
before us to indicate that the Tribunal has in the present instance not exercised its
discretion properly or that it had not evaluated the factors listed in section 112(3)
of the CPA correctly14. A ccordingly the appeal against the imposed sanction
mu st also fai I.
[33] As to costs, I find no reason to deviate from the customary rule that costs
follow the outcome. I am further bolstered in exercising this court's discretion
against the appellant, when regard is had to the manner in which the appellant
sought to attack the Tribunal's findings on the evidence before it, relating in
particular, to the assessor's report.
Order
[34] The order is therefore as follows:
Th e appeal is dism issed, with costs.
I agree
s
Judge of the High Court
Gauteng Division, Pretoria
{
.
age of the High Co urt
Gauteng Division, Pretoria
13
See Platinum W heels (Pty) Ltd v National Consumer Commissioner 2025 (3) SA 459 (SCA).
14 These are the factors which have been listed in par [23] above.
(