Cape Town dealer loses court bid over faulty car refund

A used vehicle dealership in Cape Town has failed in its High Court attempt to overturn a National Consumer Tribunal (NCT) order to refund a consumer the purchase price of a vehicle and to pay a R50 000 administrative penalty.

In a judgment handed down in the Western Cape High Court last week, Judge Lister Nuku and Acting Judge Stanley O’Brien upheld the tribunal’s decision and dismissed, with costs, the appeal and application brought by Wingfield Motors (Pty) Ltd, trading as Best Price For My Car in Goodwood, Cape Town, to review and set aside the ruling.

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These tribunal and high court orders follow Shad Maritz’s purchase of a 2017 Ford Focus RS 2.3 EcoBoost vehicle from Wingfield Motors on 22 January 2021, with the transaction financed by FirstRand Bank.

The vehicle was intended for Maritz’s son, who had test-driven it twice in the days leading up to the purchase.

Initial assessment and dispute

Wingfield Motors sent the vehicle to Dekra N1 City for assessment, and its report on its condition did not reflect any meaningful faults other than it being dirty and having a scratch on the front bumper paintwork.

However, Maritz called Wingfield Motors three days after the vehicle was purchased to report a burning smell coming from the rear wheel and that the vehicle’s clutch ‘did not feel right.’

Maritz was advised to take the vehicle to Barloworld Ford N1 City for assessment because it was still under warranty and a maintenance plan.

The vehicle was taken for assessment on 2 March 2021. An affidavit filed by the National Consumer Commission (NCC) stated this was the earliest available date that Barloworld Ford could assess it.

Wingfield Motors claimed the vehicle had travelled a further 2 346 kilometres during the intervening period, which equates to an average of about 59km per day, which it considered to be excessive by normal standards.

Barloworld Ford assessed the vehicle and indicated it had a faulty clutch; both the clutch and flywheel were burnt, and there was excessive play on the clutch kit.

The total estimated costs to repair the damage amounted to about R62 218.19, which was not covered by the manufacturers’ warranty.

Attempted resolution 

Maritz was unwilling to pay for the repairs, given the short period in which the defects to the clutch and flywheel manifested, and his attorney wrote to Wingfield Motors on 31 March 2021, offering to return the vehicle in exchange for a full refund of the purchase price.

The judges said evidence suggests Wingfield Motors was, at some point, willing to accept the vehicle back and issue a refund, but there was a disagreement regarding the basis on which it was prepared to refund Maritz.

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They said Wingfield Motors’ proposal regarding the refund was to return the monies received from FirstRand and the deposit paid by Maritz, with FirstRand in turn reimbursing him for all the instalments already paid.

However, Wingfield Motors wanted Maritz to pay R32 595.60 for use of the vehicle – calculated at R4.60 per kilometre driven – plus an additional R27 149 for depreciation.

NCC steps in

Maritz accepted responsibility for the usage but not for depreciation, resulting in a deadlock, and Maritz submitting a complaint to the NCC.

The NCC investigated the complaint and subsequently referred it to the tribunal, which found the dealership to be in breach of the Consumer Protection Act (CPA) and issued an order against it.

The judges said the core of Wingfield Motors’ appeal was the alleged failure of the NCC or Maritz to provide evidence that satisfies the requirements of Section 55(2) of the CPA. This section deals with a consumer’s right to receive safe, good-quality goods.

Wingfield Motors emphasises the importance of the qualifying phrases and that not all defects identified after the purchase date amount to breaches of this CPA section.

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The judges said Wingfield Motors stated that this is especially relevant when a customer buys a used motor vehicle, as a reasonable person would expect ongoing maintenance needs for such a vehicle and also highlighted that the CPA’s provisions do not cover damage caused to the goods by the customer’s unreasonable use.

The judges said despite Wingfield Motors suggesting the tribunal failed to properly interpret the provisions of CPA Sections 55 and 56 (which deal with implied warranty of quality), they did not understand the dealership to be suggesting that a motor vehicle with a clutch and flywheel that requires replacement is reasonably suitable for the purposes for which it is generally intended, or of good quality, in good working order, and free of any defects, or will be usable and durable for a reasonable period of time, having regard to the use to which it would normally be put.

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They added that Wingfield Motors did not suggest a vehicle requiring the replacement of these parts is free of defects, but questioned whether these defects existed at the time the vehicle was sold to Maritz.

But the judges said this approach overlooks the fact that Wingfield Motors, in terms of the CPA, was required to cover the costs of repairs, and the dealership’s attempt to argue that this CPA section does not apply to used goods is misplaced.

They said it was Wingfield Motors’ intransigence that caused Maritz to tender the return of the goods within the six-month period specified in the CPA.

Judges criticise dealership’s conduct

The judges said when Maritz attempted to return the vehicle, the dealership tried to penalise him by claiming it was entitled to charge for depreciation, alongside the statutorily permitted deduction for motor vehicle use based on the mileage covered.

They said the dealership did not present any evidence to support its claim the defects were caused by the manner in which Maritz or his son drove the vehicle.

“The approach taken by Wingfield is detrimental to the very purpose of the CPA and the National Credit Act.

“Wingfield could have easily settled this issue at the point when the customer merely asked Wingfield to pay for the repairs. Wingfield refused, despite the obligations imposed by… the CPA.

“When the customer resorted to tendering the return of the vehicle, as he is entitled to… [in terms] of the CPA, Wingfield would have none of that.

“But for the intervention of the NCC and the tribunal, the customer would have been left out in the cold – and that would have completely undermined the provisions of the CPA.

“None of the grounds of appeal and/or review have merit, and both should be dismissed with costs,” they said.

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