CONSUMER WATCH | Dealer blames driver in Navara braking row

22 December 2021 - 15:25
The Nissan Navara owned by Yagendran Naicker.
The Nissan Navara owned by Yagendran Naicker.
Image: Supplied

A disgruntled Nissan Navara owner went to great lengths to voice his grievances, including public protest and outfitting his vehicle with anti-brand messages.

Yagendran Naicker purchased his 2.3D LE 4x2 automatic double-cab in November 2020 at Nissan Hillcrest, a Combined Motor Holdings (CMH) dealership. It was a pre-owned vehicle, registered as a 2018 model. He claims to have experienced persistent issues with the braking system.

The grey pickup was booked into the workshop of the dealership about 3,000km after initial collection, with the owner expressing concern that the front brakes were worn.

Naicker stated that the vehicle was returned to him a month later, having undergone the replacement of front pads and discs.

Another 3,000km later, on February 22, he returned to the workshop to have a “severe vibration” addressed. He was assured the problem had been rectified. Then he reported that the issue resurfaced in the first week of March.

“The dealership at this point became hostile and tried to shift blame for the problems on my driving,” he recounted.

“I insisted that this was not the case and had to fight for the dealer workshop to relook at the problems. A decision was taken to have an independent assessment done.”

Driving style or inherent fault?

The components identified as problematic were sent to an independent service provider named Brake Well, which asserted that the damage was attributed to harsh driving.

Naicker decided to escalate his case to Nissan SA and lodged a complaint through their customer relations channel. He then approached his vehicle financier, WesBank, to pursue the process of terminating the deal.

When he was called to a meeting with the dealer principal, Naicker countered claims about his driving with a driving report from telematics service provider Netstar.

It was then decided the vehicle would undergo another evaluation, this time at CMH Nissan in Pinetown.

“CMH Pinetown found that the brake distribution was the cause, as the brakes were excessively biased to the front,” Naicker said. “This finding could only have been made having the whole car present for inspection. This finding thus discredited the Brake Well report.”

Naicker said CMH Hillcrest conceded to the findings of its fellow network dealership and issued an apology to him. He then demanded the troublesome parts be replaced with new items.

“The dealership insisted they were within their rights to repair the damaged parts and re-fit to the car. Their reasoning was that the repaired components would still be within Nissan specification. I protested, but yielded out of frustration.”

An invoice dated March 16, 2021 indicates the front discs were machined, while the rear brakes were cleaned and readjusted.

Test drives and legal action

Nearly a month later the vibrations resurfaced and he was back in the workshop. On this occasion he said the vehicle was returned to him on the same day.

On May 7, when the issue cropped up again, Naicker said he was at his wits’ end, opening another case with Nissan SA , approaching the dealer principal with another demand that the deal be cancelled.

“The dealer principal rejected the cancellation, but offered a buyback at R116,000 less than what I had paid for the vehicle.”

He then escalated his grievance to the desk of Charles Webber, franchise manager at CMH. Naicker explained that Webber offered to substitute the vehicle with a model of similar specification.

“I agreed to the substitution of goods and afforded the dealership the time to find said substitution. The dealership further requested that the car be inspected by a senior technician from Nissan SA. I agreed to this in the hope that he may be able to resolve the issues.”

On May 20, after a senior technician tested the vehicle, the finding was that it had been operating to specification and that the issues raised were because of driving style.

Naicker rejected the finding and continued to liaise with his financial service provider, with a view to effecting a cancellation of the contract.

“On May 28 the car was returned to me, with the assurance from the senior technician that the vehicle was operating as per specification.”

He then said that when his wife was driving it soon after collection the problem resurfaced. “I informed the dealer principal who was at a loss for words and asked that the car to be brought back the next morning for a road test with the workshop manager. I agreed to this.”

He conducted a voice recording of the test drive with the senior technician and asserted that within 5km of driving, the vibrations and noises were evident. A second road test was arranged five days later, this time accompanied by a customer care representative from CMH. Naicker said the verdict from the technician was that the discs were defective, causing brake judder.

“We engaged about the issues and the dealership refused any further repairs as they would then be losing money on the deal. An offer was made by Nissan SA: they would, as a ‘gesture of goodwill’ replace the affected parts and ‘no further claims will be entertained’”

He rejected their offer and took to social media, which resulted in legal action from the dealership, claiming defamation. “I removed the posts on advice from my attorney, but did not issue an apology.”

The disgruntled customer organised a protest outside the dealership.
The disgruntled customer organised a protest outside the dealership.
Image: Supplied

The previous owner

Naicker then reached out to the former owner of his vehicle, Jaykrishna Naidoo, who wrote a statement describing similar issues related to the Navara. Naidoo purchased the pickup from Bidvest McCarthy Nissan Gateway in June 2018 and also paid for a Motorite maintenance plan through the dealership.

By December he had done 12,000km and decided to take the vehicle into the Gateway workshop ahead of the 15,000km service interval because he felt the brake pads were worn. He was told that Motorite would only cover a replacement of pads at 20,000km.

He explained to Motorite, via the service adviser, that he primarily drives in low speed, stop-go conditions, which requires frequent use of the brakes. Motorite then agreed to replace the pads on December 18, but sent him a letter in January 2019 warning him of his brake usage.

In February 2020, 14,000km later, he was back at the workshop — this time CMH Nissan Durban, complaining yet again about pads that felt prematurely worn. Motorite declined to replace them on this occasion.

“The service adviser said that I could use the vehicle for another few thousand kilometres before the brake pads would have to be replaced.

“The Covid-19 pandemic and lockdown hit our country, I didn’t do the mileage and eventually sold the vehicle to Nissan Hillcrest on October 27, 2020, with the mileage just over 27,000km.”

“I also drive a 2019 Nissan X-Trail and had the brake pads replaced at about 30,000 kms at the end of February 2021 at CMH Nissan Durban. And this too with driving in the exact same areas that I used to drive my Navara in.”

Additional evidence

Naicker sent copies to the management team at CMH and Nissan SA in the hope it would help his cause.

“With the new evidence, we requested a round table with the dealership. The dealership’s attorneys responded saying they are not willing to engage,” he said.

Correspondence was also received from WesBank after his initial request to terminate the finance contract.

WesBank said: “[The dealership] confirmed that they have various verifications confirming that the issue with the vehicle is due to the way in which the customer drives the vehicle and is not a defect on the vehicle. Due to the above, the dealer will not be prepared to uplift the deal and is prepared to defend any legal action. We consider the dealer to be the experts in this matter and will follow their lead in this regard. Should the customer wish to proceed against the dealer, then he may proceed at his own discretion.”

Approaching Nissan SA and Hillcrest

We contacted Nissan SA and received a response on November 16. “This is a matter between the dealership and the customer, and it is now being managed through their respective legal representatives,” said spokesperson Veralda Mazzone, who left the employ of the company soon after.

Byron Faulds, dealer principal of CMH Nissan Hillcrest, referred our inquiry to legal representatives on November 19.

Acting for the dealership, Kelvin Moodie, of Pearce, Du Toit & Moodie, asked us to provide a list of allegations to which they would provide responses.

In addition to the braking defects Naicker described, the differing verdicts as to the cause and the statement from the previous owner, we also referenced the allegation that the vehicle had not been subjected to a 101-point pre-delivery check in entirety.

The Nissan Hillcrest response

On November 25, Moodie sent a three-page statement explaining the dealership’s position. It acknowledged that the vehicle was indeed sold to Naicker, under the name of his business, and financed by WesBank.

“Unfortunately a pre-delivery inspection was not carried out on the vehicle prior to the sale. This was due to a miscommunication during the pre-delivery preparation process.”

“This was however rectified a month later when Mr Naicker returned the vehicle to us, advising that there was a metal-on-metal sound heard when applying the brakes.”

It confirmed that a 160-point check was then carried out and that the front discs and pads were replaced.

“The braking system on the vehicle is not defective. An independent specialist, namely Brake Well, Nissan SA’s technical specialist and ourselves have all thoroughly inspected, test driven and diagnosed the vehicle’s braking system, and confirmed that the brake shudder intermittently experienced when driving the vehicle, and abnormal brake disc and pad wear, is a result of harsh braking or over-braking evident from the large amounts of brake dust found on the newly fitted brake components, front discs burnt blue from heat build-up, excessive run out and white/grey charring around the edges of the brake pads.”

The statement said that when the vehicle was driven in “a normal fashion, that is without any harsh braking”, no vibration or shudder was evident.

“Despite what any telemetry report may say, we experienced first-hand that the brake shudder and vibration was only ever experienced in circumstances where the vehicle’s brakes were applied consistently harshly, over an extended period of time.”

Regarding the statement from former owner Naidoo, the dealer countered: “The brake pads wore out on both occasions after the previous owner had travelled roughly the same mileage, which indicates that his driving style and environment remained consistent and that there was nothing actually wrong or defective with the braking system itself. The previous owner furthermore stated that he traded the vehicle in to us due to the Covid-19 pandemic and not because the vehicle or its braking system was defective.”

The dealer believed Naidoo’s comparison with his X-Trail was irrelevant, given the different weights and load capacities of the vehicles.

They also stated that when Naicker took his vehicle in for the 45,000km service, that pirate brake pads had been identified. “This places the vehicle’s warranty in jeopardy insofar as the braking system is concerned.

“Despite Mr Naicker’s unfounded allegations that the braking system is defective and the vehicle is unsafe to drive, Mr Naicker has travelled in excess of 26,400km.”

According to the dealer, the amount offered to purchase the vehicle factors in its use over the past 12 months and resultant depreciation, calculated in accordance with the formula adopted and approved by the Motor Industry Ombudsman of SA.

“While Mr Naicker, via his attorney, accepted the purchase price offered by us for the vehicle, Mr Naicker has alleged that the sale agreement concluded with WesBank should be cancelled. We have advised Mr Naicker that first, since the sale agreement was concluded with WesBank and not us, we cannot agree to a cancellation of sale. And since the vehicle is not defective, Mr Naicker has no legal basis to cancel the sale agreement.

“Incidentally, we made a similar offer to Mr Naicker to purchase the vehicle in May 2021, which was rejected. We however remain hopeful that Mr Naicker shall accept our offer to purchase the vehicle at the price agreed upon to resolve this matter amicably.”

‘I’ll never buy another Nissan’

Naicker says he won’t be purchasing another vehicle from the brand.

He told us his legal costs in pursuing the matter have reached as much as R180,000 and that if he were to agree to a buyback, he would not recoup this money, in addition to losing his instalments paid over a year and deposit.

“They save their ill-earned reputation, they gain the car, which they will sell and recover their losses. Justice is not served.”

This week he said he was approaching a different Nissan dealership to strip the brake system apart for an alternative perspective.

Responding to our query about the point regarding pirate pads made by the dealer, Naicker said the frequency with which he was replacing the pads incurred great expense, so he opted for aftermarket items that were SABS-approved.

On December 7 an email from Moodie stated that another offer was made to Naicker by Nissan Hillcrest.

“Our client proposed paying a purchase price for the vehicle equivalent to the balance due to WesBank, purely in a genuine effort to settle this matter without protracted and costly litigation. This subsequent settlement proposal has likewise been rejected.”

Can you cancel your finance contract if your vehicle is found to be defective?

We approached WesBank with the question and its head of marketing, Lebogang Gaoaketse, responded:

All matters will be assessed on a case-by-case basis. WesBank at all times complies with the provisions of the Consumer Protection Act (CPA) in making these determinations. The bank will obtain a sequence of events from both the customer and the dealer regarding the dispute to ascertain all the facts relating to the dispute concerning the vehicle (asset) sold to the client in terms of the finance agreement.

WesBank is the mediating party in the dispute as we are the financier of the asset and we are guided by the CPA in determining whether there are grounds for repair, replacement or refund. Based on the outcome of the investigation, the defects of the dispute need to relate to mechanical/material defects and not cosmetic/wear and tear defects as these fall outside the ambit of the CPA. Further, defects should not be as a result of driver negligence/abuse.

Both parties are afforded the opportunity to present their facts to assist in mediating the resolution of the complaint. As a mediating party in the dispute, the bank cannot force cancellation of a transaction as both parties involved in this dispute (the customer and dealer as the seller) are protected by certain legislation.

However, if it is evident that the defects on the vehicle fall within the scope of the CPA, WesBank will assist in facilitating an upliftment of the vehicle from the dealer. In terms of the CPA, the customer will be responsible for usage of the vehicle while it was in their possession. This is calculated by the dealer, who is guided by the current AA (Automobile Association) rates per kilometre driven.

Should a deadlock be reached or insufficient evidence not be provided and neither party can come to an agreement, the recommendation would be to refer the matter to an adjudicator at the Motor Industry Ombudsman of SA to look at the merits of the case and to provide the recommendation or findings.


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