Vousvoukis v Queen Ace CC t/a Ace Motors

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 19 June 2015
• Citation: 2016 (3) SA 188 (ECG)
• Docket Number: 3878/2013
• Hearing Date: 19 June 2015
• Counsel: TJM Paterson SC for the plaintiff. DH de la Harpe or the defendant.
• Court: Eastern Cape Division

Pickering J: G

[1] Plaintiff is Georgios Vousvoukis, an adult male businessman of Queenstown. Defendant is Queen Ace CC t/a Ace Motors, a duly registered close corporation with its principal place of business at Queenstown. Defendant carries on business as inter alia a dealer in used H motor vehicles.

[2] It is common cause that on 13 September 2011 plaintiff purchased from defendant, who was represented by Mr J Pieterse (Pieterse), a used 2006 model BMW M5 motor vehicle (the BMW) for the sum of R470 000. Of this purchase price plaintiff paid the sum of R170 000 in cash. The remainder of the purchase price was paid to defendant by Wesbank, I arising out of a large-instalment credit agreement between plaintiff and Wesbank. Plaintiff's total indebtedness in terms of this agreement was R304 290, his monthly instalments being R6866,80 until 1 October 2016.

[3] It is common cause that the BMW is a high-performance motor J vehicle which requires high-performance, fully synthetic oil.

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[4] Plaintiff took delivery of the BMW on 13 September 2011 at which A time its odometer reading was 79 870 kilometres.

[5] It is common cause that on or about 27 December 2011, with an odometer reading of 84 206 kilometres, the BMW experienced certain mechanical problems. The following day the BMW was taken by Pieterse to Autohaus Monti, a BMW dealer in East London, where it was B discovered that the engine had been destroyed through no fault of the plaintiff.

[6] It is further common cause that at its own cost defendant replaced the destroyed engine with a second engine at a cost of R70 000 and that the BMW was returned to plaintiff on or about 27 February 2012. C Thereafter, during July 2012, with an odometer reading of 92 265 kilometres, the second engine also experienced mechanical problems.

[7] Plaintiff alleged in his particulars of claim that these problems also resulted in the destruction of the engine and averred that on 27 July 2012 he tendered the return of the vehicle to defendant but that D defendant rejected such tender. He therefore claims inter alia refund of the purchase price. In the alternative, plaintiff relies on the provisions of the Consumer Protection Act 68 of 2008 (the Act) in that the supply of the BMW to him contravened the implied warranty of quality contained in ss 55(2)(b) and (c) thereof. On this basis he claims restitution in terms E of s 56(2) of the Act. In the further alternative, plaintiff alleges that the second engine installed by defendant was, unbeknown to plaintiff, latently defective at the time of its installation in the BMW and claims restitution flowing from the actio redhibitoria.

[8] In its initial plea defendant merely pleaded that after examining the F BMW it disclaimed responsibility to plaintiff in respect of the damage. In an amended plea, however, defendant denied that the engine was destroyed and pleaded that the drive of the oil pump was damaged —

'in consequence of a cause unknown but likely because of some or other object having fallen into the engine when the oil was replenished by plaintiff and further that the oil pump having been repaired, the engine has been restored to full working order'. G

[9] It was also common cause by the time of the trial that the second engine had not in fact been destroyed; that the cause of the BMW's mechanical problems was in fact damage to the oil pump's drive gear, resulting in certain of the teeth of the oil pump drive gear shearing off; H and that with the repair of the oil pump the engine had been restored to full working order.

[10] What had caused the damage to the teeth was, however, the subject of much debate at the trial.

[11] Before turning to deal with the expert evidence which was led by I both parties as to the cause of the damage to the oil pump, it will be convenient to deal with the background evidence of plaintiff and of Pieterse who testified on behalf of the defendant.

[12] In his evidence plaintiff confirmed that he had purchased the BMW on 13 September 2011 at the aforementioned price. J

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A [13] With regard to the first engine, plaintiff stated that on Sunday 27 December 2011, he was on his way back to Queenstown from a trip to East London. As he was entering Queenstown the BMW lost power and went into so-called 'safety' mode. He drove straight home and parked the vehicle. The following day he contacted Pieterse who fetched the BMW and sent it down to Autohaus Monti in East London who were B the authorised BMW dealers.

[14] He was thereafter informed that the engine had given in, there apparently being a 'bearing knock', and it had to be replaced. He was given the option of either obtaining an entirely new engine, apparently at C his expense, or installing a second-hand engine. The cost of the new engine was prohibitive and he accordingly opted for the second-hand engine. He stated that the suggestion was made by Pieterse that he pay for the second-hand engine but he refused to do so.

D [15] It is common cause that a second-hand engine was duly sourced from a vehicle in Gauteng which had been involved in a rear-end collision at a time when its odometer reading was 20 000 kilometres and that it was installed in the BMW.

[16] The BMW was returned to plaintiff at the end of February 2012, after the installation of the second engine. Plaintiff then used it in E Queenstown and on business trips to East London, until, during July 2012, it again experienced mechanical problems evidenced by a knocking noise coming from the engine. He drove the vehicle slowly back to his house and left it in his garage. He contacted Pieterse and told him of the problems and said that he did not want the car. Pieterse said that he had F to sort out the problems on his own. Pieterse, however, eventually arranged for the vehicle to be taken to Autohaus Monti. Plaintiff was thereafter advised that there was bearing damage, that the engine had seized and that a new engine would again be required. Plaintiff reiterated to Pieterse that in the light of all the problems he did not want the BMW G any more.

[17] The BMW's odometer reading at that time was 92 265 kilometres. Since the replacement of the engine he had travelled 8059 kilometres in the vehicle. He stated that during that period the BMW had not been serviced. He stated further that the oil warning light had never come on and that it had not been necessary to top up the oil.

H [18] As appears from the plea it was the defendant's case that the damage was occasioned to the oil pump by some or other object having been dropped into the engine through the oil filler cap when the plaintiff replenished the oil. In the light of this it was put to plaintiff by Mr De la Harpe, I who appeared for the defendant, that it was impossible that the engine would not have required an oil top-up within the travelled distance of 8000 kilometres, inasmuch as the defendant's evidence would be that the engine consumed 1,5 litres of oil per 1000 kilometres. It was further put that if the oil had not been topped up the engine would have run dry, whereas, when the engine was inspected by the workshop J manager of Autohaus Monti, Mr Gravett, it was found that the bearings

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were in perfect order and that the engine was not starved of oil. Despite A this, plaintiff persisted in his denial that he had topped up the oil at any stage.

[19] Plaintiff stated that eventually, during or about June 2013, he went to Autohaus Monti with his attorney and spoke to Gravett. Gravett B informed him that the engine had 'gone' and needed to be replaced. He was also told that he should bring the motor vehicle back to Queenstown because it was parked outside at Autohaus Monti and the seats were being damaged by the heat of the sun. He accordingly did so. Thereafter, during 2013, summons was issued against defendant.

[20] It was put to plaintiff by Mr De la Harpe that, as alleged in C defendant's plea, the oil pump had been damaged but that it had been repaired and that the engine was now in perfect working order. Plaintiff stated that, even had he known this prior to the issue of summons, he would not have taken the BMW back because, as he said, 'What is to say that there was something else wrong'. He had lost faith in it. D

[21] Mr Pieterse testified that he was a member of the defendant. He confirmed that on 13 September 2011 he had sold the BMW to plaintiff. He stated that approximately a week later, on a Sunday, plaintiff had telephoned him from Cathcart and told him that the vehicle's red oil warning light had come on. Pieterse advised plaintiff to top up the oil. E On the following day Pieterse collected the vehicle from plaintiff. Because he was not certain that the oil put in at Cathcart had been fully synthetic, he drained the oil and returned the vehicle to plaintiff. At some stage thereafter the BMW's onboard computer advised plaintiff that the brake pads needed to be replaced. Pieterse took the BMW to Autohaus Monti where the brake pads were replaced at his own cost. F

[22] Thereafter, during December, Pieterse was again contacted by plaintiff on a Sunday. Plaintiff complained of a 'funny' noise in the engine. Pieterse again collected the BMW from plaintiff. He confirmed that it had a 'funny noise in the engine' and was in so-called 'limp mode'. He took it to Autohaus Monti where it was examined by Gravett. G

[23] In due course Pieterse was informed by Gravett that the vehicle's engine had 'run a bearing' and had been destroyed. Because of the exorbitant cost of a new engine it was agreed between Pieterse and plaintiff that a second-hand engine be fitted. This engine cost R70 000. H Pieterse paid for the engine himself. The second engine was duly delivered to Autohaus Monti and fitted to plaintiff's BMW. At that time Gravett suggested to Pieterse...