The High Court in Pretoria agreed with the ruling of the Consumer Tribunal in January that a used car dealer must refund a consumer and pay an administrative fine of R100 000 for disregarding a consumer’s rights and selling him a used car that had a defect.
The Consumer Tribunal also ruled that Avura Motors, trading as Avura Executive Auto, must repay the consumer and his insurance company R106 000 for repairs to the pre-owned 2014 Mazda the consumer bought for R288 577.50.
Avura Motors took the matter on review to the high court, but the appeal was dismissed.
The consumer complained to the National Consumer Commission (NCC) that Avura Executive Auto, a used car dealer in Rustenburg, sold him a vehicle that showed defects within 28 days.
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Used car dealer refused to repair vehicle
After the consumer informed Avura Executive Auto of the defects and elected to have the car repaired, the dealer refused to repair it and said it was in good condition when it was sold. Avura also relied on its own 30-day or 1 000km warranty and said the consumer already drove for more than 1 000km.
Therefore, the consumer had to take the car to a third party for repairs. The third-party charged R106 088.28 for parts and labour and the consumer filed a claim under his mechanical warranty that assessed the vehicle and concluded it overheated and required engine reconditioning.
The insurer paid R75 000 towards the cost of the repairs and the consumer paid the balance of R31 088.28.
In July last year, the NCC referred the matter to the Consumer Tribunal which ruled that Avura supplied a defective vehicle and contravened sections 55(2)(a) to (d) and 56(2)(a) of the Consumer Protection Act (CPA).
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According to section 55(2)(a) to (d), every consumer has the right to receive goods that are reasonably suitable for their intended purpose, of good quality and usable and durable for a reasonable period.
Section 56(2)(a) stipulates that a consumer can return goods to the supplier without penalty within six months and the supplier must repair or replace the unsafe or defective goods. The consumer can choose to have the goods repaired or replaced.
However, Avura Executive Auto opposed the application and denied that it contravened any provision of the CPA and said the car was serviced in May 2022, approximately two months before it was sold to the consumer. The service included a check of the cooling system and no faults were reported.
In addition, Avura Executive Auto referred the Consumer Tribunal to the consumer’s insurer’s assessor report detailing the assessment conducted on the car where the assessor recorded the damage to the vehicle as a blown cylinder head gasket due to overheating.
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Judge says Consumer Tribunal was correct to rely on assessor’s report
Judge N Davis said in his judgment that the Consumer Tribunal correctly relied on the assessor’s report and noted that despite the vehicle being serviced two months before it was sold, the description of the cooling system showed it was clear that the defect must have been pre-existing as the rust and contamination could not have occurred in the 28 days that the consumer had the vehicle.
He also pointed out that Avura did not present any evidence that the consumer was negligent as alleged in the dealer’s affidavit. There was also no warning light or other indication that the consumer should have done anything to prevent the engine from overheating.
Davis said that 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.
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Total disregard for consumer’s rights
In its ruling the Consumer Tribunal found that Avura’s contraventions are serious, displaying a total disregard for the CPA and the consumer’s rights. In addition, the Consumer Tribunal found that the consumer was exploited by the sale of a vehicle which was not of good quality.
The Consumer Tribunal ordered Avura Executive Auto to refund the consumer R31 088.28 and his insurer R75 000 for the cost of the repairs. Avura Executive Auto was also ordered to pay an administrative penalty of R100 000 within 60 business days.
Hardin Ratshisusu, acting commissioner of the NCC, welcomed the judgment.
“This judgment should serve as a deterrent and a reminder to all suppliers that they have an obligation to comply with the CPA and its regulations, on every transaction with consumers. Finally, the consumer will be afforded redress and the supplier held accountable for violating the CPA.”
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