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[2026] ZAGPJHC 386
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Edan Traders (Pty) Ltd v National Consumer Tribunal and Others (A2024/107939) [2026] ZAGPJHC 386 (13 April 2026)
FLYNOTES:
CONSUMER
– Defective goods –
Motor
vehicle –
Supplier
sold second
hand
truck represented as strong and in good condition – Vehicle
immediately malfunctioned, repeatedly broke down, and
proved
unsuitable for intended coal
hauling
business – Tribunal found prohibited conduct under CPA,
misrepresentation, unconscionable conduct and failure
to disclose
defects – Implied six
month
warranty could not be excluded by voetstoots clause – Refund
ordered – Appeal dismissed with punitive costs
–
Consumer Protection Act 68 of 2008
.
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NUMBER: A2024 -
107939
1.REPORTABLE:
YES
2.OF INTEREST TO OTHER
JUDGES: YES
3.REVISED: NO
13 APRIL 2026
S YACOOB
In the matter between:
EDAN
TRADERS (PTY)
LTD
Appellant
and
THE
NATIONAL CONSUMER TRIBUNAL
First Respondent
ZODWA
NYULI
(in her capacity as presiding
tribunal member)
Second Respondent
SIHLE
PRISCA NOKUTHULA NDLOVU
Third Respondent
obo SBUYILE TRANSPORT
(PTY) LTD
Coram:
Windell, Yacoob et Wanless JJ
Heard:
26 November 2025
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail and uploading
it onto the relevant
electronic platform. The date and time for hand-down is deemed to be
10h00 on the 13 of April 2026.
Summary:
Appeal against decision of National
Consumer Tribunal – onus on supplier of goods to show issues
either did not exist at the
time of delivery, or were disclosed and
accepted by consumer – consistent with principles of consumer
protection.
Consumer
protection – unconscionable conduct – misleading
representations – prohibited terms and conditions -
supplier
taking advantage of ignorance of consumer - supplier using voetstoots
standard clause to avoid statutory obligations.
Procedure –
Rule
49(4)
– where appeal noted without leave having been required,
notice of appeal must state grounds of appeal clearly and concisely.
Costs – appellant
ignoring court directives regarding navigability of electronic file –
appeal record in any event not
compliant with requirements for
physical record - justifies punitive costs order.
ORDER
On
appeal from:
The National Consumer
Tribunal
1.
The appeal is dismissed, with costs on an attorney
and client scale.
JUDGMENT
YACOOB
J (WINDELL et WANLESS JJ concurring)
:
INTRODUCTION
[1]
The appellant, Edan Traders (“Edan”),
has noted an appeal against a decision of the National Consumer
Tribunal (the
first respondent, to which I refer as “the
Tribunal”), which found that Edan had contravened certain
sections of the
Consumer Protection Act, 68 of 2008 (“the CPA”)
and that those contraventions constituted prohibited conduct.
The Tribunal ordered Edan to pay Ms Ndlovu, who is the third
respondent in this appeal, an amount of R316 250. The decision
was taken by a full panel of the Tribunal, and an appeal against the
decision lies with this Court in terms of s 148 of the National
Credit Act, 34 of 2005 (“the NCA”), read with s 59(3).
[2]
Edan seeks an order that the appeal is upheld,
with costs, and substituting the Tribunal’s order with an order
that Ms Ndlovu’s
application is dismissed with costs. The basis
of the appeal appears to be that the Tribunal’s findings are
not supported
by the evidence before it.
[3]
In the proceedings before the Tribunal, Ms Ndlovu
represented herself but did not give evidence. Edan filed an
affidavit and also
called a witness, Mr Eddie Visser. The members of
the Tribunal made it clear that as far as evidence was concerned,
only Ms Ndlovu’s
documentary evidence would be taken into
account. The factual summary I set out below is based primarily on
the papers before the
Tribunal. Much of the evidence relied on by
both parties is hearsay. However, there is some supporting
photographic and documentary
evidence that permits the court to come
to a conclusion.
FACTUAL BACKGROUND AND
THE TRIBUNAL’S FACTUAL FINDINGS
[4]
Ms
Ndlovu purchased a vehicle from Edan in the following circumstances.
She wished to purchase a truck in order to start a business
hauling
coal. She was unable to obtain a loan from an ordinary bank, nor was
she able to afford a new vehicle. She approached Edan
because she was
referred to it as a company that would provide financing,
[1]
and because she had identified a truck that she could afford.
[5]
On 28 September 2020, after Ms Ndlovu identified
the truck she wished to purchase, a person called Bianca prepared a
“payment
structure” which Ms Ndlovu was satisfied with
and agreed to. This provided that she would pay R375 000 plus
VAT and
“Hydraulics”. Bianca then provided her with an
offer to purchase (“OTP”), which she signed on the basis
that it would be the same as the payment structure. Ms Ndlovu then
paid R20 000 as part of a 50% deposit and agreed to pay
the
remainder of the deposit on 1 October 2020.
[6]
Ms Ndlovu then reviewed the documents when she
reached home and discovered that the amount reflected on the OTP was
R405 000.
In addition, the two documents referred to different
vehicles. She assumed it was a simple error and that the R405 000
was
the R375 000 plus R30 000 for hydraulics. The next day,
she emailed Bianca asking that the OTP be corrected. Bianca’s
response was instead to ask for proof of payment as someone else was
interested in the truck. Ms Ndlovu responded that she had
paid
R20 000 to secure the truck.
[7]
When
Ms Ndlovu returned to Edan on 1 October, she was told that someone
else had chosen the truck and paid a deposit, despite Ms
Ndlovu
having been asked to pay and having paid R20 000. Ms Ndlovu was
shown other trucks she could not afford, and then the
owner, who she
identifies as “Eddie”, (Eddie Visser, who later testified
before the Tribunal), advised her that a truck
of make
“International” was available, that was “very
strong and in good condition”. Ms Ndlovu annexed
to her
complaint screenshots of a message from Mr Visser saying this. Ms
Ndlovu accepted Mr Visser’s advice on the assumption
that he
had some expertise. A new OTP was issued for this truck and she paid
an additional amount of R158 800 towards the
deposit, still on 1
October. The total amount she was to pay for this new truck was
R316 250.
[2]
Ms Ndlovu also
appears to have rented certain equipment for the truck from another
company with the same address as Edan.
[8]
According to Ms Ndlovu, she was told that the
truck had to go for a service but would be ready in three days. It
was not. She was
then told that it would be ready on 8 October, but
it was not. She was then told that the truck failed its
roadworthiness test,
and the identified problems would be resolved so
that it could be retested. She was not told what those problems were.
According
to her, she had not been told in advance that the truck
still needed to be certified roadworthy. Ms Ndlovu was told the truck
was
ready on 4 November 2020 and on 5 November went to Edan with a
driver to collect the truck.
[9]
The driver took the truck on a test drive with
Edan staff, and on the way back it broke down at Edan’s gate.
It would not
start. She left the truck at Edan with the driver, and
it took two days to repair. The driver then left to go and
fetch a
load from Brits, but the truck broke down on his way there.
Edan informed Ms Ndlovu first that the driver must make sure there is
sufficient water, then that this was because the truck was out of
diesel, but Ms Ndlovu’s driver informed her that there
was
diesel but the filter was dry and he suspected that the pump was not
circulating diesel through the engine. This would become
a recurring
theme. When the driver was then returning from Brits with a load, the
engine was very hot and he stopped to avoid damage.
He then noticed
that a tyre was burning. This was apparently two days after delivery
was taken.
[10]
According to Ms Ndlovu the truck had further
breakdowns consistently. Edan assisted her until the first month was
up and then she
was told that the one-month warranty had expired. She
used mechanics referred to her by Edan but the truck was never
finally fixed
and never able to be used for the purpose for which it
was bought. She had to replace the starter and a pump but this did
not help.
She also replaced a gearbox. By 02 March 2021 Ms Ndlovu
told Mr Visser that the truck had not been able to complete one load
and
that she had no money left to fix it. He referred her to an
electrician, but she indicated that she could not pay an electrician
and asked for assistance, which request was apparently denied.
However Ms Ndlovu does annex a quote by an electrician dated 03
March
2021 which shows that the truck had low fuel pressure on the gear
pump, amongst other issues. It is unclear whether this
was the same
pump which according to the tax invoice was replaced. It appears that
all the trips undertaken by the truck were relatively
short and
within Gauteng, for example from Brits to City Deep and from Pretoria
to Benoni.
[11]
On 24 March 2021 Ms Ndlovu asked Mr Visser whether
Edan could replace the truck since she had obtained no value from it.
It is unclear
whether there was any response to this request.
Eventually, the truck broke down and her driver left it on the side
of the road
with the keys hidden as he could not stay there until
someone went to recover it. The quote to repair it came to R147 000
and Ms
Ndlovu could not afford that. In fact, she lost the contract
for hauling coal and had to abandon the business.
[12]
Edan’s first version under oath appears to
have been its opposing affidavit filed before the Tribunal in August
2023. This
affidavit was deposed to by Mr Gert Scheepers, the
financial manager. It is not clear why he was the deponent, as he did
not seem
to have had any direct interaction with Ms Ndlovu.
[13]
Mr Scheepers makes an unsubstantiated allegation
that an unidentified representative of Edan told Ms Ndlovu that the
vehicle still
had to be inspected, as well as fitted with new tyres.
He alleges a full service was done, but does not specify what the
initial
inspection revealed and what repairs, if any, were done. Mr
Scheepers also alleges that the breakdown on the day of
collection
was a minor air leak (it is unclear where this leak was
situated) which was immediately repaired, and that after collection
Ms
Ndlovu called Edan to repair the vehicle numerous times due to
burnt starters and batteries needing replacement, all within the
first month after the breakdown. It is unclear from where he obtains
the information regarding the causes of the various breakdowns.
He
says that the mechanics informed Edan (it is unclear what person was
informed) that the fuel tanks were empty and no fuel was
feeding the
engine, leading to the driver having to “overwork” the
engine to try and start it, resulting in subsequent
breakdown.
[14]
Mr Scheepers then skips ahead to 1 April 2021,
just less than five months after the truck was delivered, when Ms
Ndlovu informed
Edan that the truck had broken down and had been left
on the road near Garankuwa, Pretoria. I pause to note that it is
unclear
whether the failure to deal with events in the intervening
period is an attempt to imply that all was well in that period.
However
it is clear that people from Edan had multiple communications
with Ms Ndlovu regarding multiple breakdowns in that intervening
period.
[15]
Edan then sent a recovery vehicle to assist and
appointed an auto electrician and a mechanic to inspect and report on
the condition
of the truck. According to Mr Scheepers
auto-electrician’s report “concluded” that the
vehicle had run out of
fuel on more than one occasion within a short
period. The report is dated 11 August 2021, and states that the
auto-electrician
attended the vehicle on an unspecified date, and was
found to have flat batteries and to have run out of fuel. It states
that the
auto-electrician was called two days later to attend the
vehicle and found again that it had flat batteries and had run out of
fuel, as well as having a burnt-out starter. The report does not make
any conclusions, but reports on what was apparently found.
[16]
The mechanic’s report is dated 12 August
2021, and states that the mechanic was called to attend the truck on
5 April 2021.
They found that the diesel injectors were faulty and
that water was leaking from the cylinder head, which was found to be
cracked.
The mechanic concludes that this damage resulted from low
fuel, because fuel acts as a coolant for injectors, and low fuel
causes
the injectors to overheat, damaging the nozzles, and the
function of the infectors. This then also caused the damage to the
cylinder
head. The mechanic’s opinion is that “damage to
the engine was caused by the injectors not operating at peak
performance.”
The mechanic does not specify whether there was
in fact fuel in the tanks, and whether there was any other reason why
fuel may
not reach the injectors.
[17]
Although Mr Scheepers’s affidavit suggests
that the auto-electrician and mechanic were requested to inspect and
report in
April, correspondence in the record between Mr Visser and
the Motor Industry Ombudsman suggests that the reports were only
requested
after the fact, when the Ombudsman asked for a response to
Ms Ndlovu’s complaint. This is relevant in the evaluation of
evidence,
since the reports were not contemporaneous, and it is not
clear what the authors of the reports had regard to before producing
the reports. It is also not clear whether the authors of the reports
were in fact the people who inspected the truck.
[18]
Mr Scheepers’s affidavit does not deal with
the various issues which Ms Ndlovu had with the truck after the end
of the first
month, and before April. He states that the finance
institution (which has the same address as Edan, and which referred
Ms Ndlovu
to Edan) attached and removed the truck and sold it at
auction.
[19]
Mr Scheepers alleges that the truck was sold
“voetstoots”, but no signed copy of the terms and
conditions page of the
agreement is annexed. Ms Ndlovu did not
annex any copy of the terms and conditions page, while Edan included
an unsigned
version. According to Mr Scheepers the damage to the
vehicle was due to Ms Ndlovu’s negligence because she did not
keep it
properly supplied with fuel.
[20]
At the hearing of the matter, Ms Ndlovu
represented Sbuyile, with the assistance of an interpreter, and did
not give further evidence.
In fact, the interpreter asked the
Tribunal whether evidence was going to be under oath, and was told
that it would not be. Mr
Visser testified on Edan’s behalf,
after an application was made for oral evidence to be admitted.
[21]
Ms Ndlovu’s “address” to the
Tribunal was substantially the same as what she had stated in her
affidavits. She
added that the driver told her on the first day it
was used to haul a load that the truck was not roadworthy because the
engine
was “fitting”. This is consistent with the text
messages annexed to her affidavit. Ms Ndlovu lost the contract for
carrying coal because the truck was always breaking down. She stated
that when she went physically to Edan, they laughed at her
saying she
was complaining about a truck breaking down when she did not put in
diesel. However, she had pictures showing that the
gauge never showed
that the truck was out of diesel. According to Ms Ndlovu she
obtained a report which was annexed to her
affidavit, saying that the
truck ought not to have been sold to her as it was a write-off. It
seems she was referring to some text
messages from a mechanic which
are annexed to the affidavit, rather than a written report.
[22]
Mr Denton, who represented Edan at the Tribunal,
submitted that Ms Ndlovu had made statements that were not supported
by the papers
and sought leave to call Mr Visser. On analysis
of the papers, even though the record is not provided to us in the
format
it ought to have been provided in, it is clear that the only
thing Ms Ndlovu said that is not supported by her papers is that
people
at Edan laughed at her for complaining about a truck that
breaks down when she does not put in diesel.
[23]
According to Mr Denton, Ms Ndlovu could not have
made the submissions she made regarding the vehicle because she was
not an expert.
He called Mr Visser on the basis that he is an expert.
The Tribunal then specified that Mr Visser could only testify on the
facts
as no expert report was given.
[24]
Mr Visser testified that Ms Ndlovu took the second
truck because of the price. He made much of the fact that it cost ten
to fifteen
percent of the price of a new truck (without providing any
substantiation for the price of a new truck) and could not be
expected
to do the same job. He did not know where the truck had been
obtained from. According to him it was in good condition when it was
sold to Ms Ndlovu and had a “certificate of fitness”. He
could not recall any malfunction before it left Edan’s
yard but
said it could have been a “minor fault”. It is unclear
how Mr Visser could testify that it was in good condition
if he did
not remember whether there was any malfunction at the time of
delivery.
[25]
Mr Visser then testified in detail, providing new
evidence for the first time, about the truck. He provided no evidence
in support
of what he said. According to him most of the complaints
were “running out of fuel”. That is inconsistent with Mr
Scheepers’s
affidavit. He testified that the truck has two fuel
tanks of 600 litres each and that if the fuel price was R20 a litre
then R1000
would be only 50 litres. He suggested that the truck
consumed two litres per kilometre. Mr Visser said that “we”
looked
in the tank and saw no fuel four times. However, it does not
appear that it was Mr Visser who personally went out four times, in
fact, he states it was employees from the workshop who went out. Nor
do the papers support the conclusion that anybody looked in
the tanks
each time. This was an inference which Mr Visser presented as fact.
He then testified about how the truck should be started
if it had run
out of fuel and suggested that Ms Ndlovu and her driver did not know
this and therefore had caused the damage. It
is unclear why this was
not conveyed to them the first time the problem occurred, if that was
the cause of the problem.
[26]
Mr Visser denied that Ms Ndlovu had asked him to
replace the vehicle, although she has annexed a message to her
affidavit in which
she asked for replacement. Mr Visser repeated a
number of times that Ms Ndlovu had failed to put in fuel and that is
the cause
of her woes. He said that if there was an air leak they
would have replaced the pipe and if there were any breakdowns they
would
have attended to them but he was not aware of any. Later, Mr
Visser finally seemed to remember the issue that arose on the first
day, and said definitively that it was fixed.
[27]
Ms Ndlovu put to Mr Visser that only one of the
fuel tanks was functional, and he responded that sometimes they block
off one of
the tanks because people cannot afford to fill up both
tanks. It is unclear whether this was done to Ms Ndlovu’s
truck. When
she asked him whether it was possible that the battery
was tested and both tanks filled, and two days later the batteries
are flat
and the tanks empty, he suggested that it was possible that
the truck was not parked in a secure area and the fuel was stolen. He
also stated that he was unaware of the problem that had occurred with
the brakes when there was an air leak at the time delivery
was taken,
despite having remembered it at a later stage in his evidence in
chief. He stated that if there is a pipe or wire that
comes off, the
truck operator must put it back and carry on with the load. This was
a normal thing when operating a truck of that
age. That was not
Edan’s job, because according to Mr Visser that was part of
running the haulage business Ms Ndlovu was
trying to start.
[28]
On being asked whether it was advisable to sell a
truck that needed that kind of attention and was that old to an
inexperienced
person, Mr Visser stated essentially that you get what
you pay for. Having said that the truck is old and parts are brittle,
and
that a person would just need to replace pipes and wires and
carry on with the load, he then said all one had to do was put in
fuel and it would go. It is clear that Mr Visser’s evidence was
internally inconsistent, contradictory and inherently unreliable.
[29]
The Tribunal found that Ms Ndlovu informed Edan of
the purpose for which she had bought the truck, and relied on their
expertise.
She had been assured that it was in a good condition, but
it malfunctioned from the outset, on the test drive and then within
days
of purchase. Taking into account the estimated cost of repairing
the truck compared to its purchase price, the Tribunal found that
it
was reasonable to conclude that it was defective at the time of sale,
as contemplated in s 53(1) of the CPA. Regardless of the
fact that
the truck was second hand and the very limited contractual warranty,
the Tribunal found that s 55(2) applied and the
applicant had the
right to receive a truck of good quality, in good working order and
free of defects. She did not. It was far
below what could reasonably
be expected and was unsuitable for purpose. The information about the
truck’s condition was not
disclosed and the respondent, with
its experience, ought to have given Ms Ndlovu accurate information to
allow her to make an informed
decision to purchase.
[30]
The
Tribunal found further that Ms Ndlovu was entitled by law to a
six-month warranty
[3]
and this
overrode the one-month warranty contained in the contract. She was
entitled to return the truck and receive a replacement
or a refund.
She did not get it.
[31]
It is clear that, in the main, the Tribunal’s
findings were consistent with the evidence before it. The basis of
the appeal
is encapsulated in the heads of argument is that the
Tribunal made a finding that the fuel tanks were dysfunctional, and
that there
was no evidence of that. In addition, the appellant
contends that it was not shown by Ms Ndlovu that the defects
complained about
existed at the time that the Vehicle was purchased.
[32]
The paragraph of the Tribunal’s judgment and
reasons to which the complaint of the appellant refers reads:
The
truck posed a safety risk to the applicant, her driver, and other
road users. Critical components, such as the fuel tank, cylinder
head, injectors, and gearbox, were dysfunctional with prohibitive
repair costs. The engine constantly overheated. Despite being
second-hand, no information about the truck’s condition was
disclosed. With its extensive experience, the respondent ought
to
have acted better. The applicant was entitled to accurate information
about the truck to make an informed decision when purchasing
it.
[4]
[33]
The Tribunal therefore found far more than simply
that the fuel tank was dysfunctional. In my view, excluding the fuel
tank from
the conclusion does not invalidate the Tribunal’s
conclusion. The evidence of Mr Visser actually confirmed that the
truck
was not in a condition that a person new to the business, or
without relatively thorough mechanical knowledge and ability, would
be able to operate. He conceded that there was a likelihood that
there would be leaks and problems with pipes and wires, and that
sometimes if there was a leak this could cause the brakes to lock
while the truck was on the road, which is an obvious danger to
road
users. It is also clear that Mr Visser personally warranted to Ms
Ndlovu that the truck was strong and in good condition.
[34]
As far as the second complaint is confirmed, that
it was not shown by Ms Ndlovu that the other defects existed at the
time the vehicle
was purchased, it is my view that the inference made
by the Tribunal that there were serious defects at the time of
purchase is
consistent with the evidence. It is also consistent with
the failure of Edan to explain how, if they had fitted the truck with
new tyres before delivery as claimed, it then had two flat tyres
within days of delivery. In fact, the entire sequence of events,
together with Mr Visser’s evidence that the truck was old and
would be expected to have problems with pipes and wires, supports
the
finding that the truck was defective within the meaning of the
section before delivery.
[35]
The submission that Ms Ndlovu had not shown that
the defects existed at the time of purchase raised the question at
the hearing
of the appeal regarding where the onus lay in Tribunal
proceedings. This was a question counsel was unable to answer. Both
counsel
who appeared before us were strangely unfamiliar with the
content of the relevant legislation and with any applicable
judgments.
It appeared to us that there had been an unfortunate lack
of preparation.
[36]
Mr
Prinsloo, who appeared for Edan, referred the court in his reply to s
117 of the CPA, which provides that the standard of proof
in the
Tribunal is on a balance of probabilities. This of course does not
determine where the onus lies. Mr Prinsloo also referred
the court to
an unreported judgment,
Toyota
Randburg (a division of Motus Group Ltd) v Ndlovu and Another
,
[5]
(“
Toyota
”
)
which was made available to us after the hearing. In that judgment,
by a Full Bench of the Gauteng Division,
[6]
the issue of onus on an applicant before the Tribunal was
specifically dealt with. The court found that, where the purchaser
shows
that problems with the vehicle arose very shortly after
delivery, the onus was on the appellant (the supplier of the vehicle)
to
rebut the conclusion that there was a defect, and to prove that
the issues arose from the purchaser’s negligence.
[7]
The onus on the purchaser is to demonstrate that there were problems,
not to show the cause of the problems.
[8]
This is consistent too with Edan’s contention that Ms Ndlovu is
not an expert and could not prove what the cause of the problems
were.
[37]
In
Motus
Corporation (Pty) Ltd v Wentzel
,
[9]
referred to in the
Toyota
decision,
the Supreme Court of Appeal found that the complaints of Ms Wentzel
did not amount to defects as defined and therefore
that she had not
made out a case for the relief she was seeking. If they were defects,
she had not brought to the attention of
the supplier that they had
not been resolved after the supplier had repaired them. It is for
that reason that her claim was found
to be wanting. That case is
entirely distinguishable to this.
CONTRAVENTIONS OF THE
CPA AND REMEDY
[38]
As a result of its factual findings, the Tribunal
found that Edan contravened sections 40(1)(a) to (c), 40(2), 41(1)(a)
and (b),
48(1)(c), 51(1)(a)(i) and (ii), 51(1)(b)(i),(ii) and (iii),
55(2)(a), (b) and (c), read with 56(1), and 56(2)(a) and (b) of the
CPA. It declared these contraventions prohibited conduct and ordered
Edan to repay R316 250 to Sbuyile within 30 business
days.
[39]
Prohibited conducted is defined in s 1 of the CPA
as “an act or omission in contravention of this Act”. The
import of
the declaration is that, in terms of s 150 of the NCA, the
Tribunal has the power to make an appropriate order in relation to
prohibited
conduct. The declaration in context is simply a
confirmation that Edan has contravened certain sections of the CPA
and that the
Tribunal then has the power to make an appropriate order
to give effect to Sbuyile’s rights in terms of the CPA.
[40]
Section 40 of the CPA is headed “Unconscionable
conduct” and provides:
(1)
A supplier or an agent of the supplier must not
use physical force against a consumer, coercion, undue influence,
pressure, duress
or harassment, unfair tactics or any similar
conduct, in connection with any –
(a)
marketing of any goods or services;
(b)
supply of goods or services to a consumer;
(c)
negotiation, conclusion, execution or enforcement
of an agreement to supply any goods or services to a consumer;
(d)
demand for, or collection of, payment for goods or
services by a consumer; or
(e)
recovery of goods from a consumer.
(2)
In addition to any conduct contemplated in
subsection (1), it is unconscionable for a supplier knowingly to take
advantage of the
fact that a consumer was substantially unable to
protect the consumer’s own interests because of physical or
mental disability,
illiteracy, ignorance, inability to understand the
language of an agreement, or any other factor.
(3)
Section 51 applies to any court proceedings
concerning this section.
[41]
It is clear from Mr Visser’s own version
that Edan acted in a manner that falls foul of s 40(2), in that he
knew that the
truck was not suitable for a person with no mechanical
knowledge and new to the industry, and did not tell her, instead
representing
that it was a good option for her, thus taking advantage
of her “ignorance”. Even if this Court were to find that
none
of the other findings of the Tribunal were justified, that on
its own is unconscionable and prohibited conduct, and must give rise
to relief for Sbuyile.
[42]
Mr Visser’s conduct also constitutes unfair
tactics in marketing, as he recommended the truck to Ms Ndlovu,
knowing what she
required and what her limitations were, but
represented to her that it was a good option. It can also be
interpreted as unfair
tactics in supplying goods to a consumer. The
manner in which the contract was concluded, to which Edan provides no
alternative
to Ms Ndlovu, also gives the impression of “unfair
tactics”. In those circumstances the finding that Edan’s
conduct
was also unconscionable under s 40(1)(a) - (c) cannot be
faulted.
[43]
Section
41(1)(a) and (b) provides that the supplier must not, by words and
conduct, make a misrepresentation regarding a material
fact to a
consumer,
[10]
or “use
exaggeration, innuendo or ambiguity as to a material fact, or fail to
disclose a material fact if that failure amounts
to a deception.”
[11]
It is clear that by telling Ms Ndlovu that the truck was “very
strong and in good condition”, in the context of this
case, Mr
Visser and therefore Edan fell foul of these provisions, and the
Tribunal’s finding should not be disturbed.
[44]
In s
48(1)(c), the CPA provides that a supplier must not require a
consumer to waive any rights, assume any obligation or waive
supplier
liability on unfair, unreasonable, or unjust terms. The Tribunal does
not explain which part of Edan’s conduct falls
foul of this
provision. In terms of s 48(2), a term or condition is unfair,
unreasonable or unjust if, amongst other things, “the
consumer
relied upon a false, misleading or deceptive representation, as
contemplated in section 41 or a statement of opinion provided
by or
on behalf of the supplier to the detriment of the consumer”.
[12]
The facts set out above clearly bring the matter within the bounds of
this provision, and there is no basis on which to disturb
the
Tribunal’s finding in this regard.
[45]
Section
51 deals with prohibited transactions, agreements, terms or
conditions. The subsections which Edan was found to have contravened
prohibit an agreement or a term or condition that has the general
purpose or effect to defeat the purposes and policy of the CPA,
[13]
or mislead or deceive the consumer;
[14]
or to purport to deprive a consumer of their rights
[15]
or avoid a supplier’s obligation in terns if the CPA, or to
override one of its provisions. The actions of Edan identified
above
fit into these categories for the reasons already identified earlier,
and the imposition of a one month warranty seeks to
avoid the
obligation of a six-month warranty imposed by section 56(2). Edan’s
reliance on the voetstoots clause in its standard
terms and
conditions to the extent that it seeks to rely on it to escape the
obligations imposed by the CPA. The remaining contraventions
of the
CPA set out below would also fall into this category.
[46]
Section
55 protects the consumers right to “safe, good quality goods”.
The Tribunal found that Edan had fallen foul
of subsections 55(2)(a),
(b) and (c), which provide that the consumer has a right to receive
goods “reasonably suitable”
for their intended
purpose,
[16]
are good quality,
in working order and do not have defects,
[17]
and “will be usable and durable for a reasonable period of
time” in the relevant circumstances.
[18]
The only exception to these rights is if s 55(6) applies, which is
when the consumer has been informed specifically of the condition
of
the goods and has accepted the goods in that condition expressly.
[47]
It is clear that the exception in s 55(6) does not
apply. In my estimation of the evidence, it is also clear that Mr
Visser knew
that the truck was not “reasonably suitable”
for the purpose for which he knew it was being purchased, and that
the
truck’s condition on delivery was already not such that it
would be usable and durable for a reasonable time. Whether there
were
“defects” (as defined in s 53(1)(a)) apart from the
questionable condition does not change anything. In any event,
as I
have set out in paragraph 24 above, the Tribunal properly concluded
that there were defects, as defined, at the time of delivery.
[48]
This means that the implied warranty of quality
provided for in s 56(1) of the CPA was also contravened.
[49]
There is, therefore, no basis on which the
Tribunal’s declaration of prohibited conduct should be
disturbed. The majority
of the Tribunal’s findings of
contravention also should be upheld. As I have said, it would have
been sufficient to find
that one of the findings of contravention was
proper, to dismiss the appeal. Since I have found that the Tribunal’s
findings
were in the main supported by the evidence, the outcome
should be obvious.
[50]
Edan made no submissions regarding the remedy
ordered by the Tribunal. The only basis of its appeal was whether the
findings of
contraventions and declaration of prohibited conduct were
properly made. In those circumstances we do not interfere with the
remedy.
OTHER ISSUES
[51]
It is necessary to comment also on some procedural
issues, particularly as they are relevant to the costs order.
[52]
Rule 49 of the Uniform Rules of Court deals with
Full Court appeals. Although it is titled “Civil Appeals from
the High Court”,
it is clear from the context and from subrules
16 and 17 that it applies to any civil appeal that is heard by a Full
Court. Rule
49(4) of provides:
Every notice of appeal
and cross-appeal shall state –
(a)
what part of the judgment or order is appealed
against; and
(b)
the particular respect in which the variation
of the judgment or order is sought.
[53]
The subrule was amended in 2013, before which it
required an appellant also to include the grounds on which the appeal
was founded
in its notice of appeal. Edan was therefore not required
to list its grounds of appeal in its notice of appeal and it did not
do
so.
[54]
It is unusual that an appeal comes before the Full
Court with no leave being given. Usually the requirement of leave
acts as a filter
to ensure that judicial resources are not expended
on issues which do not require the attention of three judges.
Generally only
an appeal that has some prospects of success or which
has some other compelling reason to justify it being entertained
would be
heard. Another function served by an application and the
grant of leave is that the grounds of the appeal are provided, both
for
the Court’s benefit and that of the respondent. In this
situation, where there is no application for leave and the notice
of
appeal does not include the grounds of appeal, the grounds or basis
of the appeal ought to be properly and clearly set out in
the
appellant’s heads. In this case the grounds of
appeal only emerge near the end of Edan’s heads of argument,
and Edan’s counsel, when asked near the beginning of his
submissions what the grounds of appeal were, was unable to articulate
them clearly. This is less than an ideal situation.
[55]
In addition, counsel was not able to clearly link
the findings of the Tribunal with the basis on which it was contended
that the
Tribunal erred. The impression was created that counsel was
not familiar at all with the contents of the CPA.
[56]
Finally, the condition of the “file”
on Caselines (the online platform on which the case documents were
uploaded) was
entirely unsatisfactory. Not only did the record
consist of repetitions and of documents incorrectly labelled, the
physical bundles
were uploaded as whole bundles, without separating
each document for ease of navigation as required. Edan’s
representatives
were informed, by means of a note on Caselines, that
they did not comply with the requirements, and their attention was
drawn to
a notice from the office of the Deputy Judge President that
the appeals were not exempt from indexing requirements and should be
struck if there was no compliance. The legal practitioners ignored
this.
[57]
The court would have been entitled to strike the
matter on that basis alone, and the failure of counsel to have
properly prepared,
and to have properly assisted the court, again
would have justified a decision by this court not to deal with the
matter.
[58]
However, this would have caused further prejudice
to Sbuyile, who has been waiting for some years for the relief
ordered by the
Tribunal. It is on that basis that the matter has been
entertained and dealt with.
CONCLUSION
[59]
The failure on more than one level of Edan’s
legal representatives to properly assist the court, justifies the
court showing
its displeasure by means of a costs order. For this
reason, costs are ordered on an attorney and client scale.
[61]
The following order is granted:
The appeal is dismissed,
with costs on an attorney and client scale.
S YACOOB
JUDGE OF THE HIGH
COURT
GAUTENG JOHANNESBURG
HEARING
DATE
OF HEARING:
26 NOVEMBER 2025
DATE
OF JUDGMENT:
13 APRIL 2026
APPEARANCES
FOR
THE APPELLANT:
Mr
J Prinsloo
INSTRUCTED
BY:
TF Kruger Incorporated
FOR
THE THIRD RESPONDENT:
Ms
M Sangweni of Enhle Ngwane Attorneys
[1]
Financing
appears to have been provided by a separate company that the same
address on its letterhead as Edan, and appears to
be a sister
company, which explains why Ms Ndlovu at certain times conflates the
two.
[2]
This
is the amount that the Tribunal ordered Edan to pay Ms Ndlovu.
[3]
In
terms of s 56(2) of the CPA.
[4]
At
para 44 of the judgment and reasons.
[5]
[2024]
ZAGPPHC 591 (20 June 2024).
[6]
It is
unclear why that matter served before a full bench and this one
before a full court, but that is not relevant for purposes
of this
judgment.
[7]
Paragraph
46.
[8]
Paragraph
43.
[9]
[2021]
3 All SA 98 (SCA).
[10]
S
41(1)(a).
[11]
S
41(1)(b).
[12]
S
48(2)(c)
[13]
S
51(1)(a)(i).
[14]
S51(1)(a)(ii)
[15]
S
51(1)(b)(i).
[16]
S
55(2)(a).
[17]
S
55(2)(b).
[18]
S
55(2)(c).