Three years ago Sarah Nkwana took a stand against a motor dealership: she refused to pay them another R27,000 to fix the same fault she’d paid them to fix just a few days earlier. It was a fight that took her all the way to National Consumer Tribunal just more than a month ago, where she represented herself in an online hearing; up against the Mercedes-Benz Constantia Kloof dealership and their attorneys. And she won.
On April 25 the presiding Tribunal members unanimously found that the dealership had failed to carry out the repairs to her 2014 model Mercedes-Benz C180 vehicle in May 2020 “in a manner and with the level of quality that persons are generally entitled to expect”.
The dealership was given 30 days to refund Nkwana 80% of the R20,808 she’d paid for the unsuccessful repair back in May 2020, and has since complied with the ruling.
Nkwana was finally reunited with her car — which had sat at the dealership for three years — a few weeks ago, having had to arrange for it to towed, thanks to a flat battery.
She then paid just R3,100 to have car repaired elsewhere, and it’s now running perfectly.
Here’s what the Tribunal heard: in May 2020, the car’s dashboard displayed a warning stating: “ESP [electronic stability programme] inoperative,” and the vehicle had no power. It was towed to the dealership where a diagnostic test indicated that the throttle valve actuator had malfunctioned and needed replacement.
That was done, the dealership said, and a second test indicated that the problem had been solved.
Nkwana paid R20,808 for the repair and collected the car on June 10. Two days later the same warning message came up on the car’s dashboard, and, again, the vehicle had no power.
Back to the dealership she went, where technicians checked the car’s software, and while doing so, the warning message disappeared and the car was once again returned to Nkwana.
But three days later, it was back. This time the dealership ran another series of diagnostic tests and reported that the car’s engine control unit (ECU) was damaged and needed replacing — at an additional cost of R27,836.
Unhappy, she complained to the motor industry ombudsman of South Africa, which found in her favour in September 2020, recommending that the dealership take responsibility for the vehicle’s ESP problem and repair the vehicle at no cost to Nkwana. Or that she be put in the same financial position she was in before the repairs were carried out on her car.
The dealership refused to comply with the ombud’s recommendation.
So Nkwana turned to the National Consumer Commission for justice, but in August that body rejected the case, saying Nkwana’s evidence was insufficient to make a finding against the dealership.
That’s how her case ended up before the Tribunal last month. There she argued that, no matter how advanced, machines and the people operating them could make mistakes, and that the dealership had not explained to her that the ESP warning could appear for several different reasons.
She expected her R20,808 to have fixed the problem — that was the contract, she said.
She paid for an independent investigation, by two experts, which concluded the dealership had followed the incorrect diagnosis and repair: the vehicle’s “throttle body was not defective and was replaced due to misdiagnosis by the respondent’s technician”, they said.
Mercedes-Benz Constantia Kloof said it had diligently followed the findings and recommendations of its diagnostic testing system, used and provided by Mercedes-Benz South Africa, and regularly updated by the manufacturer. “The ESP warning was designed to illuminate for several different faults on the vehicle because there couldn’t be an individual warning for each fault on the vehicle’s dashboard,” they said.
The second problem, manifesting immediately after the first, was a different one, they insisted: the ombud was wrong.
The dealership rejected Nkwana’s expert report findings on the basis that the investigators’ credentials were not presented and they did not have access to the car to inspect and download data directly from the vehicle.
As a “gesture of goodwill”, they would repair the car at cost price and waive three years’ storage fees.
Nkwana rejected their offer. And the Tribunal members rejected the dealership’s claim that the two faults were unrelated, as “the TVA and ECU components do not function independently of each other; they form part of the same system on the vehicle”.
“There is no evidence before the Tribunal indicating that the dealership explained the risk to the applicant of only replacing the TVA and that the ESP warning could persist due to other components becoming faulty in the system,” the judgment read. “Had it done so, the applicant would have been able to make a more informed decision such as replacing components simultaneously to save costs or taking the vehicle elsewhere for a second opinion.”
While the dealership had not acted maliciously in this case, the Tribunal found, “it made no provision for the possibility of a technical error in its processes and equipment, or that a different diagnoses route could lead to a different conclusion”.
“This could lead to a misdiagnosis causing a consumer financial and other prejudice.
“The Tribunal is convinced that the respondent failed to carry out the repairs to the vehicle in a manner and with the level of quality that persons are generally entitled to expect, and is (thus) found to have engaged in prohibited conduct by failing in its statutory duty in terms of the Consumer Protection Act, Section 54(1).” That section of the act states that if a supplier fails to perform a service to the appropriate standards, the consumer may require them to remedy the defect in quality or refund them a reasonable portion of the price paid for the services performed.
The dealership was ordered to pay Nkwana R16,646.56, being 80% of the price she paid them for repairs and to immediately release her car.
The saga did not end there, however.
When Nkwana took the car to a battery supplier for a new battery two weeks ago, it emerged that the car’s battery sensor had been replaced.
“I had the car assessed, and it was confirmed that the part number on the battery sensor in the car was not a match with my car’s VIN number, meaning the original sensor was replaced — with a wrong one — while at the dealership,” she said.
The car had only been serviced at the Constantia Kloof dealership since Nkwana bought it in 2017.
Dealer principal Nico Fourie — who did not hold that position in 2020 — told Nkwana in an email: “I cannot explain how this came about, but in an effort to bring this matter to conclusion, I have instructed my after-sales team to order the required part.”
The correct part has since been fitted — at no cost to Nkwana.
The Constantia Kloof dealership will also replace the engine cover which went missing under their watch.
She has since had the original fault on the car repaired by another Mercedes dealership for just more than R3,000.
TimesLIVE Premium twice attempted to contact Fourie for comment but received no call back.
GET IN TOUCH: You can contact Wendy Knowler for advice with your consumer issues via email: consumer@knowler.co.za or on Twitter: @wendyknowler.
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