In the case
of Makadu v
NTT Volkswagen [2024] ZANCHC 52, the court dealt with the issues of
defective goods and the exhaustion of internal remedies before approaching the
court. The applicant, dissatisfied with a brand-new Volkswagen Polo Vivo that
failed to start, sought the cancellation of the sale agreement and a refund.
This case highlights the importance of following the procedural steps outlined
in the Consumer Protection Act (CPA) 68 of 2008 before seeking judicial
intervention.
Facts of the Case
Sale and Delivery:
The applicant entered into an installment sale agreement with Volkswagen
Financial Services South Africa for a new Volkswagen Polo Vivo, facilitated by
NTT Volkswagen Kimberley (NTT).
Defective Vehicle:
Upon attempting to start the vehicle, the applicant found that it would not
start, accompanied by a harsh noise from the ignition. The vehicle was towed
back to NTT, where a technician confirmed the issue, noting a "clack-clack
noise" during start attempts.
Diagnosis and Attempted Repair:
The workshop foreman diagnosed the problem as a fuse pin not making secure
contact, which resulted in a lack of power to the ignition. The fuse was
replaced and inserted into a different socket, resolving the issue. The
applicant, however, refused to accept the repaired vehicle and requested the
cancellation of the sale agreement.
NTT's Response:
NTT declined the cancellation request but offered a replacement vehicle, which
was not in the applicant's preferred choice. The applicant then referred the
matter to her legal representatives and complained to the Motor Industry
Ombudsman of South Africa (MIOSA).
Court Application:
Dissatisfied with the ruling of MIOSA, the applicant sought a court order for
the delivery of a new defect-free Volkswagen Polo Vivo, the setting aside of
the MIOSA recommendation, or, alternatively, the cancellation of the sale
agreement and a refund.
Respondents' Preliminary Point:
The respondents argued that the applicant failed to comply with section 69(d)
of the CPA, which requires exhausting all internal remedies before approaching
the court. The applicant had only complained with MIOSA and did not refer the
matter to the Consumer Tribunal.
Discussion and Findings
Section 69(d) of the CPA:
The court discussed the implications of section 69(d) of the CPA, emphasizing
the need for consumers to exhaust internal remedies, such as approaching the
National Consumer Commission or the Consumer Tribunal, before seeking court
intervention. Mr. Olivier, representing Volkswagen, argued that this
requirement ensures the administrative dispute resolution mechanisms are not
undermined.
Comprehensive Dispute Resolution Mechanism:
The court found that the CPA provides a comprehensive mechanism for resolving
disputes between consumers and suppliers. The legislative intent behind this
scheme is to first resolve disputes through internal remedies before involving
the civil courts.
Failure to Exhaust Internal Remedies:
The court noted that except for the MIOSA complaint, the applicant did not
pursue other available remedies within the CPA framework, such as the Consumer
Tribunal. This failure to exhaust all internal remedies meant that the
applicant's approach to the court was premature.
Conclusion
The court
concluded that the applicant's failure to exhaust all internal remedies
provided by the CPA before approaching the court was a violation of section
69(d). The application was thus refused. This case underscores the necessity
for consumers to follow the procedural steps outlined in the CPA to ensure
proper resolution of disputes regarding defective goods.
Order:
The court refused the application due to the applicant's failure to exhaust all
internal remedies as mandated by the CPA.
This case
serves as a crucial reminder of the procedural requirements under the Consumer
Protection Act, emphasizing the importance of utilizing all available dispute
resolution mechanisms before seeking judicial relief.
