Vousvoukis v Queen Ace CC t/a Ace Motors

• Jurisdiction: South Africa
• Judgment Date: 19 June 2015
• Citation: 2016 (3) SA 188 (ECG)

Vousvoukis v Queen Ace CC t/a Ace Motors
2016 (3) SA 188 (ECG)

2016 (3) SA p188

Citation	2016 (3) SA 188 (ECG)
Case No	3878/2013
Court	Eastern Cape Division, Grahamstown
Judge	Pickering J
Heard	June 19, 2015
Judgment	June 19, 2015
Counsel	TJM Paterson SC for the plaintiff.; DH de la Harpe or the defendant.

Flynote : Sleutelwoorde B

Consumer protection — Whether transaction subject to CPA — Sale of used goods — Consumer Protection Act 68 of 2008, s 5(1).

Consumer protection — Statutory warranty of quality — Repair and replacement of defective goods — Whether replacement of component of complex C product constituting repair or new supply of goods — Consumer Protection Act 68 of 2008, s 56(2).

Consumer protection — Statutory warranty of quality — Limited period for returning unsafe or defective goods for repair and replacement — Whether court may extend such period with 'innovative order' — Consumer Protection Act 68 of 2008, ss 4(2)(b)(ii)(bb) and 56(2).

D Sale — Goods — Latent defect — Remedies of purchaser — Actio redhibitoria — Objective test restated and applied to purchase of used motor vehicle.

Headnote : Kopnota

The plaintiff (Mr V) instituted an action against Ace Motors (AM) for the E restitution of the purchase price of a second-hand vehicle that he had purchased from AM. This was pursuant to Mr V's purported cancellation of the sale agreement after a further mechanical failure appeared to require a second engine replacement. (AM paid for the first engine replacement.) However, after summons but before the trial commenced, it transpired that a second engine replacement was not required but only repairs to the oil pump.

F In the alternative Mr V claimed restitution in terms of s 56(2) of the Consumer Protection Act 68 of 2008 (the CPA), claiming that the supply to him contravened the implied warranty of quality contained in ss 55(2)(b) and (c) thereof. The latter subsections appear under the heading 'Consumer's right to safe, good quality goods'. Section 56(2), under the heading G 'Implied warranty of quality', affords a consumer six months post delivery to return goods 'which fail to satisfy the requirements and standards contemplated in s 55' to the supplier for repair or replacement.

Here it was common cause that more than six months had elapsed between delivery of the vehicle to Mr V and the defective oil pump manifesting. H Mr V however contended that the replacement of the first engine with the second engine did not constitute a repair of the motor vehicle as a whole but that the second engine was a new supply of goods, and because the defect in the second engine manifested itself within six months of its installation, the provisions of s 56(2) were applicable. This issue, namely whether the replacement of a component of a complex product constituted a new supply I of goods to a consumer, was one of three involving the CPA. The others were (1) whether it was competent for a court to extend the six-month period in s 56(2) by making an 'innovative order' advancing consumer rights as contemplated in s 4(2)(b)(ii)(bb); and (2) whether, because the relevant sections of part H of the CPA provided only for a consumer's 'right to fair value, good quality and safety' in relation to 'goods', by necessary implication J 'used goods' were excluded.

2016 (3) SA p189

In the further alternative, and on the basis that the second engine was latently A defective at the time of its installation, Mr V claimed restitution under the actio redhibitoria.

The court, having found that the damage to the oil pump was occasioned in consequence of an object present in the engine at the time of its installation (see [71]); accepting that it was a latent defect (see [115]); and accepting also (without deciding) that it was a defect as defined in the CPA (see [94]), B further held as follows:

As to CPA issues

Whether replacement of component of complex product constituted a new supply of goods to consumer

Although the engine in itself was a separate component of the motor vehicle C which could be removed, repaired and replaced, it was nevertheless an integral part thereof, without which the motor vehicle was a mere shell and accordingly defective. A complex product was defective, even where its defectiveness was attributable only to a fault in one of its components, such as when the engine of the car failed. Therefore the replacement of the first engine with the second engine was clearly a repair to the vehicle. (Paragraphs [99] – [101] at 204J – 205C.) D

Whether court may make an 'innovative order' under s 4(2)(b)(ii)(bb) to extend the s 56(2) six-month period within which to return goods

The legislature expressly decreed a limitation period of six months for the return of any goods in s 56(2). There was no question of s 56(2) being ambiguous in any way. It was not open to a court, under the guise of making an E 'innovative order', to extend this period. Any innovative order made under s 56(2) must be made within the constraints of the legislation and could not afford consumers more rights than those specifically provided to them in terms of the Act. (Paragraph [110] at 206F.)

Whether the CPA applied to used goods

Although 'used goods' was defined in the Act, it was not referred to anywhere F in the Act again, so that it was uncertain what was sought to be achieved by the inclusion of the definition of the term. Section 5(1)(a) provided specifically that the Act applied to 'every transaction occurring within the Republic', unless it was specifically exempted, which exemptions were not relevant here. On a proper approach to the interpretation of statutes, the term 'goods' — considered in the context of the Act as whole and its purpose — G included used or second-hand goods. The Act therefore clearly applied to second-hand goods and, in the particular circumstances of this case, to the motor vehicle and its engine. (Paragraphs [77] – [93] at 201E – 203J.)

As to the actio redhibitoria

The question was whether this latent defect was of such a serious a nature that H a reasonable purchaser in Mr V's position would not have entered into the sale. It was not. A reasonable person in Mr V's position, being aware that he was purchasing a second-hand motor vehicle for a price considerably less than a new vehicle of that make, would have been conscious of the fact that it might experience mechanical problems from time to time, which were not to be expected in a brand-new vehicle of that make. The damage to the oil I pump, once diagnosed, was easily remedied for an amount of approximately R15 000 — an amount which, whilst seen in isolation, was not inconsiderable, but when viewed against the purchase price of R470 000 was relatively inconsequential. Therefore Mr V's claim based on the actio redhibitoria must also fail. (Paragraphs [115] and [119] – [121] at 207B and 207J – 208D.) J

2016 (3) SA p190

Cases Considered

Annotations A

Case law

Addison v Harris 1945 NPD 444: compared

De Vries v Wholesale Cars en 'n Ander 1986 (2) SA 22 (O): dictum at 26A – C applied

Du Plessis v West [1998] JOL 202 (N): dictum in para [5] applied B

Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A): dictum at 683H – 684A applied

Lakier v Hager 1958 (4) SA 180 (T): compared

MFC (A Division of Nedbank Ltd) v Botha [2013] ZAWCHC 107 (WCC 6981/2013): followed

MV Banglar Mookh: Owners of MV Banglar Mookh v Transnet Ltd 2012 (4) SA 300 (SCA): applied C

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied

Odendaal v Ferraris 2009 (4) SA 313 (SCA): dictum in para [25] applied

Representative of Lloyds and Others v Classic Sailing Adventures (Pty) Ltd 2010 (5) SA 90 (SCA): dictum at 107F – G applied D

Roux v Hattingh 2012 (6) SA 428 (SCA) ([2012] ZASCA 132): dictum in para [20] applied.

Statutes Considered

Statutes

E The Consumer Protection Act 69 of 2008, ss 4(2)(b)(ii)(bb), 5(1) and 56(2): see Juta's Statutes of South Africa 2014/15 vol 2 at 1-799 and 1-817.

Case Information

TJM Paterson SC for the plaintiff.

DH de la Harpe or the defendant.

F An action for restitution. The order is at [123].

Order

The plaintiff's claim is dismissed and judgment is entered in favour of the defendant with costs of suit.

Judgment

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.

2016 (3) SA p191

Pickering J

[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...