Court orders Krugersdorp truck trader to pay up or replace vehicle

A Krugersdorp vehicle trader took advantage of a consumer, engaged in unconscionable conduct, and made misleading representations when selling her a defective used truck, the High Court in Johannesburg has confirmed.

Judge Seena Yacoob, with judges Leonie Windell and Brad Wanless concurring, also found that the woman was entitled to return the truck and receive a replacement or a refund, but did not get it.

They dismissed with costs an appeal by Edan Traders against a judgment by the National Consumer Tribunal.

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Edan appealed against the tribunal’s August 2024 finding that it had contravened several provisions of the Consumer Protection Act (CPA) and that those contraventions constituted prohibited conduct – but strangely did not appeal against the tribunal’s order that it repay Sihle Ndlovu the R316 250 she paid for the truck.

The Motor Industry Ombudsman of South Africa had failed to resolve the complaint lodged by Ndlovu in June 2021, and the National Consumer Commission in June 2022 issued a notice of non-referral to Ndlovu’s complaint.

This led to Ndlovu referring her dispute with Edan to the tribunal in September 2022.

Yacoob said the basis of the appeal appears to be that the tribunal’s findings are not supported by the evidence before it.

The sale

Ndlovu wished to purchase a truck to start a business hauling coal.

She signed an offer to purchase a truck for R375 000 in September 2020 and paid R20 000 as a part deposit.

That truck was subsequently no longer available and Edan owner, who Ndlovu identified as Eddie Visser, advised her another truck was available that was “very strong and in good condition”.

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Ndlovu attached screenshots of a message from Visser stating this to her complaint.

A new offer to purchase for R316 250 was issued for this truck and Ndlovu paid an additional amount of R158 800 on 1 October 2020 towards the deposit.

There were delays in Ndlovu being able to collect the truck because it failed its roadworthiness test.

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Ndlovu took a driver with her on 5 November 2020 to collect it.

The driver took the truck on a test drive with Edan staff, but it broke down at Edan’s gate on the way back and would not restart.

Ndlovu said the truck consistently had further breakdowns. Edan assisted her for the first month, thereafter informing her the one-month warranty had expired.

She used mechanics referred to her by Edan but the vehicle was never finally fixed.

The truck was never able to be used for the purpose for which it was bought.

Ndlovu asked Visser on 24 March 2021 whether Edan could replace the truck since she had obtained no value from it.

Yacoob said it is unclear whether there was any response to this request.

Eventually the truck broke down and the quotation to repair it was R147 000. Ndlovu could not afford this, and had lost the contract for hauling coal. She had to abandon the business.

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Yacoob said Edan financial manager Gert Scheepers alleged the truck was sold “voetstoots” but only an unsigned copy of the terms and conditions page of the agreement was annexed while Ndlovu did not annex any copy of the terms and conditions page.

Adding insult to injury

Scheepers claimed the damage to the truck was due to Ndlovu’s negligence.

Visser denied Ndlovu had asked him to replace the vehicle despite her annexing a message to her affidavit in which she asked for replacement.

Yacoob said taking into account the estimated cost of repairing the truck compared to its purchase price, the tribunal found it was reasonable to conclude that it was defective at the time of sale, as contemplated in a section of the CPA.

She said regardless of the fact that the truck was second hand and the very limited contractual warranty, the tribunal found another section of the CPA applied.

Ndlovu had the right to receive a truck of good quality, in good working order and free of defects.– but she did not, and the truck she received was unsuitable for purpose.

Yacoob said the information about the truck’s condition was not disclosed and Edan, with its experience, ought to have given Ndlovu accurate information to allow her to make an informed decision to purchase.

She said it is clear that, in the main, the tribunal’s findings were consistent with the evidence before it.

‘Obvious danger to road users’

Yacoob said Visser’s evidence confirmed that the truck was not in a condition that a person new to the business, or without relatively thorough mechanical knowledge and ability, would be able to operate.

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She said Visser conceded there was a likelihood there would be leaks and problems with pipes and wires, and sometimes if there was a leak this could cause the brakes to lock while the truck was on the road, which is an obvious danger to road users.

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Yacoob said it is also clear that Visser personally warranted to Ndlovu that the truck was strong and in good condition, and referred to the section of the CPA headed “unconscionable conduct”.

She said it is clear from Visser’s own version that Edan acted in a manner that falls foul of this section of the CPA in that he knew the truck was not suitable for a person with no mechanical knowledge and new to the industry, and did not tell her.

Instead Visser represented it was a good option for her, thus taking advantage of her “ignorance”.

Yacoob said even if the court was to find that none of the other findings of the tribunal were justified, this on its own is unconscionable and prohibited conduct, and must give rise to the relief sought by Ndluvo.

‘Unfair tactics’

She said Visser’s conduct also constitutes unfair tactics in marketing because he recommended the truck to Ndlovu, knowing what she required and what her limitations were, but represented to her that it was a good option.

Yacoob said this can also be interpreted as unfair tactics in supplying goods to a consumer, and in those circumstances the finding that Edan’s conduct was also unconscionable under the CPA cannot be faulted.

She said the CPA provides that the supplier must not, by words and conduct, make a misrepresentation regarding a material fact to a consumer, or “use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception”.

“It is clear that by telling Ms Ndlovu that the truck was ‘very strong and in good condition’ … Visser and therefore Edan fell foul of these provisions, and the tribunal’s finding should not be disturbed.”

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