The "clack clack noise" a woman’s brand new Volkswagen Polo Vivo made when she tried in vain to switch on the ignition for the first time was just too much for the new owner and she either wanted another brand-new vehicle delivered to her or to be refunded.
When this was refused by the dealership, Masego Makadu turned to the Northern Cape High Court, sitting in Kimberley, as she felt her rights in terms of the Consumer Protection Act (CPA) had been violated.
However, following the legal process, she discovered that it was not so simple as the court had turned down her application after it found that she had not yet exhausted all her internal remedies to try and find a solution to her problem.
Makadu’s problems started in August 2019 when she concluded an instalment sale agreement with Volkswagen Financial Services for the sale of a brand new Volkswagen Polo Vivo. NTT Volkswagen (Kimberley) is the dealership that assisted with the transaction and delivery of the vehicle.
When Makadu attempted to start the vehicle shortly after it was delivered to her, it would not start and a brash noise emanated from the ignition. She reported the incident to the dealership and the vehicle was towed to its premises.
Later that day, the dealership informed her telephonically that the vehicle had been tested and that it was in working order.
Makadu went to the dealership where she was given two options, either to leave the vehicle there until the issue underlying the complaint recurred or to take the vehicle and monitor it herself. She was then advised that should the issue underlying the complaint recur, she should call roadside assistance and a technician would be dispatched to diagnose the vehicle, wherever it may be.
Makadu elected to leave the vehicle with the dealership. Volkswagen Financial Services later instructed her to fetch the vehicle as there were no defects and it was fit for use.
However, a technician reported that the vehicle would not start, but instead made a “clack clack noise” when an attempt was made to start it at the dealership. The workshop foreman assessed the vehicle and the diagnosis revealed that the fuse pin was not making secure contact, resulting in a lack of power to the ignition when an attempt was made to start the vehicle.
The fuse was replaced and inserted in a different vacant fuse socket, which allowed for a secure connection.
Makadu was told that everything was in order and that her vehicle was now as good as new, but she refused to take delivery of the vehicle. She requested cancellation of the instalment sale agreement, which was declined.
Following her complaints, a representative of the dealership offered to replace the vehicle, but when it emerged that the replacement vehicle was not available in Makadu’s choice, she referred the matter to her legal representatives.
The dealership’s attorneys said it was willing to offer Makadu a replacement vehicle of the same specifications as the vehicle purchased by her, albeit on a “without prejudice” basis, and that if she was not willing to accept that offer, her vehicle was ready for collection.
She rejected the offer and insisted on the cancellation of the instalment sale agreement. She also lodged a complaint with the Motor Industry Ombudsman of South Africa (MIOSA). In its report dated June 3, 2020, MIOSA resolved that as the vehicle was repaired, it could not support the applicant’s expectation that the supplier must cancel the deal.
Makadu opted to take the legal route.
Acting Judge MJ Ramaepadi said it is plain from the scheme of the CPA, that the Act contains a comprehensive dispute resolution mechanism to resolve disputes between consumers and suppliers.
“The legislative intention behind the dispute resolution scheme of the CPA must have been that disputes between consumers and suppliers must, as the first port of call, be resolved through the dispute resolution mechanism provided for in the CPA. It is only in cases where the CPA does not provide a remedy or, after exhausting all the internal remedies that a consumer will be entitled to approach the civil courts for redress,” the judge said.
He added that allowing consumers to run to court without first resorting to the dispute resolution mechanism in the CPA will undermine the scheme of the CPA.
Makadu’s option now is to turn to the Consumer Tribunal, which is the next level of the internal remedies provided for in the CPA.
Pretoria News