Case studies

Driver negligence

Complaint
The complainant purchased a vehicle from a supplier. The vehicle overheated and the complainant continued to drive the vehicle for another five kilometres, causing consequential damage to the engine. The vehicle was equipped with warning lights which the complainant ignored when the vehicle overheated.

Recommendation
The MIOSA found that the supplier could not be held liable for the excessive damage to the engine due to driver negligence.

Manufacturers warranty

Complaint
The complainant approached an approved service provider to carry out repairs on his vehicle which was covered by the manufacturer’s warranty. The clutch was initially replaced at the cost of the consumer. The consumer still found that there was a noise emanating from the engine as before and reported this to the approved service provider. The engine eventually failed and the warranty claim was rejected as the dealer was of the opinion that the vehicle was over-revved.

Recommendation
The MIOSA requested a technical report on the cause of the failure. A failed thrust bearing was found to be the cause, and the clutch had been incorrectly diagnosed. The MIOSA resolved that the engine should be replaced in terms of the manufacturer’s warranty and at no cost to the consumer.

Section 15 of the Consumer Protection Act - Pre-authorisation of repair or maintenance service

Complaint
The complainant approached a service provider and requested that they repair his motorcycle. The motorcycle was diagnosed and an estimate provided for the replacement of the fuel pump. The complainant authorised the repairs and received his motorcycle in a repaired condition. The consumer alleged that he was overcharged for the work, and wanted to be refunded a portion of the amount paid.

Recommendation
The Motor Industry Ombudsman of South Africa (MIOSA) found that, according to the evidence provided, the consumer had authorised the work to continue after receiving an estimate. The work was completed according to the agreement. The MIOSA could not support the expectations of the complainant as evidence provided proved that the complainant had authorised the work to continue and was not charged more than the estimated amount, in accordance with Section 15 of the Consumer Protection Act No. 68 of 2008.

Section 16(4)(a) of the Consumer Protection Act - Consumer's rights to cooling-off period after direct marketing

Complaint
The complainant enquired via an e-mail to the respondent whether they would supply him with a clutch assembly/ housing for his motorcycle and they confirmed that they were able to do so. The complainant enquired from the respondent regarding the ordering process and made an EFT payment. The respondent advised the complainant that the delivery date would be a month-anda-half after payment was received. Due to the COVID-19 national lockdown, the delivery was not possible. The complainant was promised that it would take place four months after the original delivery date. The respondent offered to refund the complainant the purchase price however had not done so. The complainant wanted a full refund plus interest accrued from date of purchase.

Recommendation
The office of the Motor Industry Ombudsman of South Africa (MIOSA) recommended that the respondent should comply with section 16(4)(a) of the Consumer Protection Act No. 68 of 2008 (CPA) which states that, a supplier must return any payment received from the consumer in terms of the transaction within 15 business days after receiving notice of the rescission if no goods had been delivered to the consumer in terms of the transaction.

Section 55 (Consumer's rights to safe, good quality goods) and 56(2) (Implied warranty of quality) of the Consumer Protection Act No. 68 of 2008

Complaint
The complainant purchased a pre-owed vehicle from a supplier. The oil light illuminated later that day. The supplier sent a technician who topped up the oil and advised the complainant that it was safe to continue driving. An engine noise developed that same day, requiring the overhauling of the engine. It was the expectation of the complainant that the vehicle be repaired at no cost to himself.

Recommendation
The Motor Industry Ombudsman of South Africa (MIOSA) found that the vehicle had failed to satisfy the requirements and standards contemplated in Section 55 of the Consumer Protection Act No. 68 of 2008 (CPA). The supplier had to repair the vehicle in terms of Section 56 (2) of the CPA at no cost to the complainant.

Section 56(2) & (3) of the Consumer Protection Act No. 68 of 2008 - Implied warranty of quality

Complaint
The complainant purchased a 1985 model tractor from a supplier during April 2019. The tractor overheated soon after purchase and was retured to the supplier for repairs on three different occasions.

Recommendation
Section 56 subsection 2 read with subsection 3 of the Consumer Protection Act No. 68 of 2008, states that within the implied six months warranty period, if a supplier undertakes to repair any particular goods or any component of any such goods, and within three months after that repair the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier must replace the goods, or refund to the consumer the price paid for the goods. The complainant indicated that he wished to retain the tractor if the respondent repaired it fully and a mutual agreement was reached between the parties for the tractor to be repaired at no cost to the complainant.

Section 56(2) of the Consumer Protection Act No. 68 of 2008 - Implied warranty of quality

Complaint
A complainant purchased a pre-owned motorcycle from a dealer. The motorcycle started to overheat during the complainants first ride. The dealer refused to assist with the repair because there was no sign of an overheating concern while the motorcycle was in their possession.

Recommendation
The MIOSA requested that a report be compiled by an expert in the filed of the brand of motorcycle. The evidence led the MIOSA to the conclusion that the cylinder head gasket of the motorcycle had failed. The office of the MIOSA recommended that the motorcycle be repaired at the cost of the dealer in terms of Section 56(2) of the Consumer Protection Act No. 68 of 2008, as the failure could not be attributed to any wrongdoing by the complainant.

Section 57(1) of the Consumer Protection Act No. 68 of 2008 - Warranty on repaired goods

Complaint
The complainant pruchased a pre-owned 2014 model vehicle from an approved dealership during August 2016. The clutch was replaced in Februasry 2017 under the terms and conditions of the factory warranty. During August 2018, the manufacturer approved a warranty claim for the clutch to be replaced again out of goodwill. During June 2019, the clutch failed again and the complainant wanted it to be replaced at no cost to himself.

Recommendation
The MIOSA referred to the implied three months workmanship warranty of Section 57 (1) of the Consumer Protection Act No. 68 of 2008 and also noted that the factory warranty had since expired. Hence, the MIOSA could not support the complainant's expectations.

Sections 24 (Product labelling and trade descriptions) & 41 (False, misleading or deceptive representations) of the Consumer Protection Act No. 68 of 2008

Complaint
The complainant purchased a used tractor from the dealership (respondent). The complainant made payment based on the pictures provided by the salesperson. Upon collection, the complainant noticed that the tractor proved different from the photographs previously provided. The complainant believed the sale was misrepresented and wanted a refund of the purchase price. The respondent indicated that they would pay back the complainant as soon as they sell the tractor.

Recommendation
In terms of section 24(2)(a) of the Consumer Protection Act No. 68 of 2008 (CPA), a person must not knowingly apply to any goods a trade description that is likely to mislead the consumer as to any matter implied or expressed in that trade description. In addition, subsection 3(a)(i) states that a retailer of goods must not offer to supply, display, or supply any particular goods if the retailer knows or reasonably could determine or has reason to suspect that a trade description applied to those goods is likely to mislead the consumer as to any matter implied or expressed in that trade description. In addition, section 41(1)(a) of the CPA states that in relation to the marketing of any goods or services, the supplier must not, by words or conduct directly or indirectly express or imply a false, misleading, or deceptive representation concerning a material fact to a consumer. It was the recommendation of the Motor Industry Ombudsman of South Africa (MIOSA) that the respondent refunds the complainant, as agreed, within 30 business days.

Usable and Durable vehicle

Complaint
The complainant purchased a pre-owned diesel vehicle with 99 000 kilometres on the odometer from a supplier. After the sale the complainant noticed smoke being emitted from the exhaust during cold start. The complainant alleged that the vehicle was not usable and durable and as such provided the MIOSA with a manufacturer’s service provider report confirming smoke during cold start. The complainant wanted the deal cancelled.

Recommendation
The supplier requested an opportunity to perform an independent assessment by a MIOSA- approved independent assessor, in order to get a clear understanding of the condition of the vehicle, which was approved. The MIOSA resolved that the vehicle was usable and durable after receiving the independent assessor’s report, which stated that the vehicle was in a good working condition and that the black smoke was normal considering that the vehicle used diesel fuel. The complainant’s expectation was not met.

Section 56(1) of the Consumer Protection Act No. 68 of 2008 - Implied warranty of quality

Complaint
The complainant purchased a used vehicle from a dealer. The vehicle was delivered by truck (and not driven) without a licence disc. The lights were faulty, there was no breakdown apparatus (wheel spanner or jack) and the vehicle was faulty. The complainant had the vehicle inspected by an alternative service provider who provided the complainant with a list of faults found. The complainant had different repairs carried out on the vehicle by several alternative service providers.

Recommendation
The complainant was referred to the office of the Motor Industry Ombudsman of South Africa (MIOSA) for investigation and it was found that due to third party repairs having been carried out during the implied six months warranty provided by Section 56(1) of the Consumer Protection Act, 68 of 2008, the MIOSA found in favour of the service provider.

Section 56(2) of the Consumer Protection Act No. 68 of 2008 - Implied warranty of quality

Complaint
The complainant purchased a used truck. The complainant stated that there was a vibration on the truck when driving at a speed of 80 kilometres per hour, this was attributed to wheel alignment, which the complainant made sure was attended to. This could not fix the problem as the truck would still vibrate badly when carrying a load, but performed excellently with no load. This was due to a diesel leak and injector concerns, which the complainant repaired at his own costs, after which the complainant wanted the respondent to attend to other outstanding issues which the complainant could not pay for, or the transaction should be cancelled. The respondent denied any liability and claimed that the truck was sold as is.

Recommendation
The office of the Motor Industry Ombudsman of South Africa (MIOSA) highlighted that in terms of section 56 subsection 2 of the Consumer Protection Act 68 of 2008 (CPA), there is a six months implied warranty after the delivery of any goods to a consumer. However, due to the complainant having taken the truck to a third party repairer to have some repairs carried out, without notifying the respondent, the complainant had lost all recourse against the respondent in terms of section 56 subsection 1 of the CPA, and as such his expectations could not be supported by the MIOSA.

Section 20(5) & (6) of the Consumer Protection Act No. 68 of 2008 - Consumer's right to return goods

Complaint
The complainant purchased a used 2011 model vehicle, on the 31st of January 2019. The complainant stated that on the 04th of February 2019 he realised that the vehicle had an oil leak, broken head lamp switch, was hard starting and the battery was not charging. The vehicle was taken back to the respondent on the 06th of February 2019 and since then the oil leakage had not stopped. The vehicle had been in for repairs on more than eight occasions. The complainant wanted the respondent to cancel the sales transaction. The respondent was willing to uplift the transaction in question but there was money loaded onto the transaction for the settlement of his previous vehicle which needed to be paid back before they could uplift the transaction.

Recommendation
The office of the Motor Industry Ombudsman of South Africa (MIOSA) recommended that the complainant should make the necessary arrangement to confirm a meeting date, with the respondent, to discuss the settlement transaction, in order to have the deal uplifted as per his request. It was a further recommendation of the MIOSA that the respondent should cancel the transaction in line with Section 20 subsection 5 & 6 of the Consumer Protection Act 68 of 2008.