This blog was co-authored by Ngarothe Netshipale, Candidate Attorney.
In August 2024, the High Court upheld a ruling by the Consumer Tribunal against a dealer that argued that a gearbox failure of an SUV was due to the purchaser’s driving style. The court found that the SUV was defective from the day the purchaser took possession, and the dealer had a duty to recall the defective vehicle and to refund the purchase price after being informed of its defects.
Where a supplier repairs any particular goods or any component of such goods, and within three months after the repair, the failure, defect or unsafe feature which necessitated the repair is not remedied, or a further failure, material defect or unsafe feature is discovered, section 56(3) of the Consumer Protection Act requires the supplier to either:
(a) replace the goods; or
(b) refund the consumer the purchase price.
The Act defines defect, failure, and unsafe as follows. A defect is any material imperfection in the manufacture of the goods or components rendering them less acceptable, or any characteristics rendering them less useful, practicable or safe than what people are reasonably entitled to expect. Failure means the inability of goods to perform in their intended manner or effect. Unsafe means an extreme risk of personal injury or property damage present due to a characteristic, failure, defect or hazard of the goods.
The court found that the vehicle presented problems from the date of purchase until the gearbox failure, indicating it was defective from the start and held that section 56(3) did not apply insofar as it extends to a further defect.
The purchaser test drove the SUV for a short distance prior to taking delivery on the same day. Upon driving away from the dealer, the SUV presented a shudder and uneven drive. The purchaser immediately notified the dealer, and a representative of the dealer informed her that is how the SUV drives, intimating nothing was wrong with it.
The following Monday, she wrote to the dealer complaining about the condition of the SUV and returned it the next day for repairs. Shortly after receiving the SUV back from the dealer, with no repairs to the gearbox, the gearbox ceased to function, necessitating the purchaser to terminate her agreement with the dealer.
The dealer, relying on an opinion provided in a report, argued two mutually destructive versions in relation to the gearbox failure existed. However, the court found that the dealer’s version was based on a report comprising of speculative opinion and not fact, and therefore, its argument was without merit.
The court found that the simple reading of section 56(3)(b) together with the purpose of the Act, which is to protect consumers, favoured a ruling against the dealer.
[https://thencc.org.za/wp-content/uploads/2024/08/Judgment-Unicity-Trading-Pty-Ltd-t-a-Cape-SUV-and-The-National-Consumer-Commission-3-Case-No.-A76-2024.pdf]