The High Court in Pretoria has dismissed an appeal by Avura Motors, trading as Avura Executive Auto, against a National Consumer Tribunal (NCT) ruling that found the dealership sold a defective vehicle and failed to provide redress to the buyer.
In a judgment delivered on 1 October, Judge Norman Davis criticised Avura Motors for what he described as a “sharp practice” in its handling of an assessor’s report central to the dispute. The judge said it was disingenuous for the dealership to rely on the report when it suited its case before the Tribunal, only to challenge its admissibility on appeal.
“I find that it amounts to a ‘sharp practice’ of a party to rely on a document (and its admissibility) when it suits him, but then later, on appeal and after switching counsel, to attempt to argue that the same document should be ignored,” Judge Davis said.
The court found that the Tribunal had correctly relied on the contents of the assessor’s report, which disclosed extensive rust and corrosion in the vehicle’s cooling system – damage that could not have developed within the 28 days the consumer had possession of the vehicle.
Background to the dispute
The case stems from the sale of a 2014 Mazda BT-50 purchased by Vukani Muthaki from Avura Motors on 15 July 2022 for R288 577.50. Within four weeks, the vehicle began exhibiting engine noises and frequent stalling.
When Muthaki reported the issues on 16 August, the dealership refused to assist, claiming that the warranty had expired after 30 days or 1 000km – limits that had already been reached. The consumer subsequently turned to the Motor Industry Ombudsman of South Africa (MIOSA), which declined to intervene on jurisdictional grounds.
Muthaki then had the vehicle repaired by Northway Electro SA at a total cost of R100 088.28, of which his insurer paid R75 000 and hey paid R31 088.28. The National Consumer Commission (NCC) investigated his complaint and referred the matter to the NCT.
What the assessor found
An assessor’s report obtained by the insurer found that the cylinder head casing was corroded, the head gasket was blown, and the radiator and thermostat were clogged with rust. The assessor concluded that the damage resulted from overheating, likely caused by prolonged operation with an insufficient cooling mixture.
This suggested that the corrosion and rust had developed over a long period – well before the consumer’s purchase of the vehicle.
Tribunal’s findings
The Tribunal determined that the vehicle had been sold with a latent defect that made it unsuitable for use without major repairs. It rejected Avura Motors’ claim that the damage was due to the consumer’s negligence, finding no evidence that Muthaki had ignored warning signals or failed to maintain the vehicle.
The NCT held that Avura Motors had contravened sections 55(2)(a) to (d) and 56(2)(a) of the Consumer Protection Act (CPA), which guarantee consumers the right to goods of good quality, in proper working order, and free of defects.
It ordered the dealership to reimburse the consumer and his insurer for the cost of repairs and imposed a R100 000 administrative fine.
High Court ruling
On appeal, Avura Motors argued that the Tribunal should not have relied on the assessor’s report because it constituted inadmissible hearsay evidence. Judge Davis rejected this argument, noting that the objection had not been raised before the Tribunal, and Avura had itself relied on the report at the time.
The judge found that the vehicle had been sold with a pre-existing latent defect, and no evidence supported the claim of consumer negligence.
“On a balance of probabilities, the vehicle was simply sold with a latent defect, which made it unsuitable for continued use without a major overhaul,” the judge said.
He concluded that the Tribunal had correctly applied the law and appropriately exercised its discretion in imposing the fine. The appeal was dismissed with costs.
Welcoming the judgment, NCC acting commissioner Hardin Ratshisusu said the decision reaffirmed the importance of suppliers adhering to the CPA.
“This judgment should serve as a deterrent and a reminder to all suppliers that they have an obligation to comply with the CPA and its regulations, on every transaction with consumers,” he said. “Finally, the consumer will be afforded redress, and the supplier held accountable for violating the CPA.”
