Fernell Waydon Pretorius successfully fought for a refund at the National Consumer Tribunal after purchasing a used car from WP Motor Sales in Cape Town and it broke down two days into ownership.
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Fernell Waydon Pretorius successfully fought for a refund at the National Consumer Tribunal after purchasing a used car from WP Motor Sales in Cape Town, and it broke down two days into ownership.
Pretorius bought the second-hand car on January 17, 2020, for R276,607.49, and it was financed by Nedbank.
The car, with a recorded mileage of 115,567 kilometres, suffered a devastating engine failure on January 19, 2020, during a drive by Pretorius's father from Cape Town to Heidelberg, Gauteng.
Following the breakdown, Pretorius promptly notified the dealership, leading them to collect the vehicle on January 20. He also emailed the dealership, indicating his wish to cancel the agreement and request restitution.
The dealership replied and promised to investigate the issue and revert. The next day, Pretorius sent a follow-up email reiterating the option to cancel the agreement to avoid financial implications.
The dealership refused to cancel the agreement and insisted on repairing the vehicle at its cost, contrary to Pretorius's instruction.
The dealership blamed the breakdown on the driver's negligence and didn't provide Pretorius with a further report.
The impasse led to the matter being referred to the Motor Industry Ombudsman of South Africa (MIOSA). In April 2021, MIOSA recommended that the agreement be cancelled, as requested by Pretorius. The dealership did not adhere to the MIOSA recommendation prompting Pretorius to escalate his complaint to the National Consumer Commission (NCC).
After investigations, the NCC concluded that the dealership contravened the Consumer Protection Act and referred the complaint to the tribunal for adjudication.
During the hearing, it was revealed that the car was returned to Pretorius after almost five months, in June 2020. However, upon inspection, he discovered a water leak and immediately notified the dealership, the car was collected again five days later.
The NCC disputed the dealership's claims that Pretorius drove the car for approximately 10,000 kilometres, citing the absence of evidentiary support and emphasising that the timeline did not align with the alleged mileage.
The NCC presented WhatsApp messages showing that the car remained at the dealership for eight to ten weeks before it was returned to Pretorius on June 3 and collected again on June 8, 2020.
Th NCC argued that it is improbable that Pretorius could have accumulated such mileage within this period. Moreover, Pretorius suspected that the dealership used the car while it was in its possession as he was issued traffic fine in February 2022, indicating that it was being used.
In response, the dealership denied all the allegations saying they were unsubstantiated. The dealership challenged the reliability of the NCC's version, asserting that Pretorius omitted material information from the complaint form and during an interview with the inspector conducting the investigation, particularly that the vehicle was returned to him on June 3, 2020.
The dealership referred to Pretorius's response during oral testimony, in which he stated that space constraints prevented him from including certain information in the complaint form and that he omitted the information during the interview with the inspector because he did not want to interrupt the investigation or to jeopardise the case filed at the NCC. The dealership contended that Pretorius misled both the NCC and the tribunal.
Moreover, the dealership asserted that even if the tribunal were to find that Pretorius elected cancellation and restitution, he subsequently accepted the vehicle after repairs and expressed his appreciation. It argued that this constitutes a repudiation of his initial election to cancel the agreement.
Going into the merits of the case, the tribunal said the dealership was required to meet the standard set out in the Consumer Protection Act. It was also held that Pretorius had the right to receive a vehicle of good quality, in good working order, and free of defects, regardless of its second or used status.
It was also added that the engine failure rendered the car unusable, requiring the dealership to collect it within three days, an indication that the car was not durable.
In addition, it was held that Pretorius was within his rights to demand the cancellation and restitution as the defect occurred within the statutory six-month warranty period. Moreover, evidence supports that he made an election to return the car.
Considering the nature of the contraventions by the dealership, the tribunal said it was persuaded that a fine of R200,000 as requested by the NCC was justified.
The dealership was also ordered to refund Pretorius over R276,000.
sinenhlanhla.masilela@iol.co.za
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