WENDY KNOWLER | NCC, do your job and stand up for vehicle-buyers: judge’s stinging ruling

A judgment handed down in the Pretoria high court on Thursday reveals yet again the long and lonely road so many motorists who buy dud cars have to travel for justice.

Wilhelmina Barnado still doesn’t have justice, mind you – the judgment just compels the National Consumer Commission (NCC) to help her try to get it; in other words, to do the job it is mandated to do.

And the judgment pulls no punches in calling it out for failing to do so.

The dispute began back in November 2013 when Barnado filed a complaint with the NCC against a Bloemfontein motor dealership trading as Lambdons.

The previous February she’d bought a GWM Steed bakkie from the dealership, financed by WesBank.

Within the six-month Consumer Protection Act warranty period, defects emerged, rendering it unfit for purpose.

It’s worth noting that the act’s section 55 states that goods have to be reasonably suitable for their purposes, of good quality, in good working order and free of any defects “and should be usable and durable for a reasonable period of time, having regard to the use to which they would normally be put and to all the surrounding circumstances of their supply”.

The dealership attempted to rectify the problems several times, and on the last attempt Barnado was told that it would not be handed over to her unless she first signed acknowledgment that the vehicle had been repaired to her satisfaction.

“She rightfully refused to do so as she did not have the opportunity to test the vehicle subsequent to the repairs,” the court said.

That’s when Barnado got attorneys involved, but the upshot was that the dealership “neglected or refused to resolve the mechanical faults on the vehicle”, would not replace it nor refund Barnado for it.

The NCC referred the complaint to the motor industry ombudsman, which ruled in her favour in June 2015 – more than three years after she bought the bakkie.

The dealership failed to comply with that ruling, so in June 2016 Barnado’s attorneys wrote to the commission requesting that a “compliance notice” be issued in terms of section 100 of the CPA.

That never happened, which is how the matter ended up in the high court last week.

Referring to the ombud’s ruling, acting judge Romeo Nthambeleni said the dealership should have refunded the purchase price to Barnado, minus any amounts “necessary to render the vehicle for restocking” and the so-called “costs of usage”.

“There are no reasons advanced on papers before court why there was no compliance, and the only reasonable inference to be drawn from the conduct of the dealership is that it is contemptuous disregard of the recommendations in the CPA.”

The main bone of contention, the judge said, was whether the commission complied with its statutory mandate in terms of the CPA.

In short, he found it did not.

Barnado was sent from pillar to post within the NCC but no action was taken. In desperation, she turned to the court.

“It is clear from the papers that NCC was either complicit or negligent in its failure to attend the enquiries of (Barnado) in her efforts to enforce compliance with the recommendations as issued by MIOSA,” the judge said.

“The question at the heart of this matter is whether the NCC complied with the statutory mandate in terms of the CPA.

“The short answer is no ...

“There is a clear concession the NCC has not concluded its investigation into the complaint without a substantive reason provided as to why such investigations are dragging for years with no end in sight.”

And then came the observation that many other aggrieved consumers will no doubt relate to.

“The CPA seeks a speedy resolution of disputes in the interests of consumers and not to conduct non-stop investigations while not issuing compliance notices to the parties that are in clear breach such as (the dealership in this case).”

In this case, the judge said, the NCC had failed in its monitoring function.

“It is obliged to monitor the consumer market and ensure that prohibited conduct such as the conduct of this dealership is prevented, detected and prosecuted.

“It is not the intention of the legislature that consumers continue to perish while there is a clear failure to resolve their disputes with suppliers in a fair, inexpensive and speedy manner as envisaged in the preamble of the CPA, read with the provisions of section 195 of the constitution.”

The judge ordered the NCC to:

• Issue a compliance notice relating to the motor industry ombud’s order of June 2015, by investigating and “finally dealing” with the Barnado’s complaint “in an efficient and effective manner”;
• Refer the matter to the National Consumer Tribunal, and “effectively deal” with the matter before the tribunal; and
• File a written report action to be taken by them within 30 calendar days from the date of this order and give copies of it to all the parties in the matter.

The dealership was ordered to comply with the terms of the directives or recommendation issued by ombudsman of June 30 2015.

The purchase price of that bakkie was just shy of R210,000 back in early 2012.

I can only imagine how much Barnado has spent in legal fees and personal schlep trying to get justice in the past decade.

Will this court ruling finally compel that dealership to refund her?

To be continued ...