On 20 June 2024, the Gauteng Division of the High Court, Pretoria, handed down its judgment inToyota Randburg (A division of the Motus Group Ltd) v Ndlovu and Another. The matter related to a claim under the Consumer Protection Act 68 of 2008 ("the CPA"). The court made certain findings regarding onus, the meaning of defects and standards of quality required when supplying the product.
Background
Mr Ndlovu ("the consumer") purchased a second-hand BMW from Toyota Randburg ("the supplier"). The consumer had to bring it in the following day for repairs and four days later, the car broke down as the engine seized. The supplier refused to repair, replace, or refund the consumer. The supplier alleged that the damage was caused by the consumer's negligent driving of the motor vehicle which resulted in water ingress. It was common cause that the vehicle was not functional.
The consumer applied to the National Consumer Tribunal ("the NCT") directly with leave from the National Credit Regulator. The NCT handed down its judgment and ordered the supplier to refund the consumer ZAR262 172.78, representing the purchase price of the vehicle. The supplier appealed the NCT's judgment to the High Court.
The High Court's findings
In terms of section 117 of the CPA and onus, the court noted that the CPA does not specify who the onus lies on. The court found that he who alleges must prove. However, in consumer disputes, the burden of proof may lie on the supplier and the court has the discretion to determine who the burden lies on.
The supplier, equipped with the necessary information, may hold a better position and maintain greater knowledge than the consumer. It is the supplier who should bear the onus of showing that a product is not defective and is of an acceptable standard of quality. The court highlighted that this approach would align with the CPA's purpose of promoting fair trade practices.
In this instance, the consumer could not reasonably be expected to know what the cause of the engine seizure was. He would not have the knowledge of whether the defect existed at the time the vehicle was sold to him. It was for the supplier to prove how water ingress could have possibly been the cause of the engine failure, which in turn was caused by the consumer's negligence. It was not for the consumer to show that this was not the case.
Section 53 of the CPA states that a product is defective if it fails to perform for the purpose which it is intended. This must be read with section 55 of the CPA which deals with standards of quality. Consumers are entitled to products that can be expected to be used for a reasonable period of time. Even where evidence is not led, the court can still decide on the matter based on the facts and circumstances that would indicate that the product is less acceptable than what a reasonable consumer would expect.
The evidence illustrated that if water ingress caused the engine seizure, there would have been a pool of water around the vehicle, as there was no indication that the vehicle had been moved from another location before being towed.
The court, like the NCT, found that the vehicle was defective in terms of section 53. Furthermore, in terms of section 55, the court concurred with the NCT that a vehicle only lasting for five days after purchase is not a reasonable period for a consumer to expect a vehicle to last.
Section 56 of the CPA provides for an implied warranty that products will conform with the standard requirements set out in section 55. Since the vehicle did not conform with this standard, and in terms of section 56, the consumer was entitled to a refund.
Despite the consumer's entitlement to a refund, the court found that the NCT erred in awarding the consumer a refund of ZAR 262 172.78. The NCT failed to account for the fact that no evidence was led in relation to the selling price of the vehicle. The NCT also failed to account of the fact that the vehicle had already been sold in default of payment to a financier. The financier sold the vehicle at an auction and the consumer had already paid amounts for the vehicle. The NCT's award would constitute the consumer being unjustly enriched.
The High Court held that Section 4(2) of the CPA permits a court to make innovative orders which the court interpreted as the court being able to make orders which give effect to a consumer's right of access to redress. On this basis, the court declared that it had the power to remit the matter back to the NCT and for the NCT to account for the aforementioned factors, in determining an appropriate remedy.
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