Court orders car dealership to refund buyer over faulty Ford Focus

A car dealership will have to refund a client the purchase price of a vehicle and pay an administration penalty fee of R50,000 after the Western Cape High Court confirmed that it had contravened a section of the Consumer Protection Act (CPA). 

The litigation came after the client bought a second hand vehicle from Wingfield Motors for his son during January 2021 but days after the purchase, the car presented with defects, despite it having been taken for a test drive on two dates before purchase.

The vehicle, a 2017 Ford Focus RS 2.3 EcoBoost, was also sent to a roadworthy testing company for assessment and a report on its condition. 

According to Wingfield the assessment involved an experienced technician test driving the vehicle to check for faults but the assessment did not include a full diagnostic test. The report from the roadworthy testing centre did not reflect any meaningful faults with the vehicle, other than it being dirty and having a scratch on the front bumper paintwork.

The purchase took a sour turn when the client reported, within three days after they collected the vehicle, a burning smell from the rear wheel and that the clutch did not feel right. 

The car dealership referred the client to have the vehicle assessed at Barloworld Ford as the car was still under warranty and a maintenance plan. The assessment found that the clutch and flywheel were burnt as there was “excessive play on clutch kit”.

The total estimated costs to repair the damage to the clutch and flywheel amounted to approximately R62,218,19. These costs were not covered by the manufacturer’s warranty, and so Barloworld Ford required payment from the customer before carrying out the repairs. The customer looked to Wingfield to cover these costs, but Wingfield refused to do so.

After taking the matter to the Motor Industry Ombudsman of South Africa (MOISA) with an unfavorable outcome for the client, the car dealership and client had further engagements to resolve their dispute. However, those engagements also ended in a deadlock before the matter was taken to the National Consumer Commission (NCC) for investigation.

Johan Loubser, attorney for Wingfield, said the legal team is still considering the content of the judgment which was handed down on Tuesday and the prospect of taking it on appeal. 

Loubser said they would confirm how Wingfield would elect to proceed after receiving their instructions.

The judgment read: “Evidence suggests that Wingfield was at some point willing to accept the vehicle back and issue a refund to the customer. However, there was a disagreement regarding the basis on which Wingfield was prepared to refund the customer. Wingfield’s proposal regarding the refund was to return the monies received from (a financing institution) as well as the deposit paid by the customer. 

“In turn, the financing bank would reimburse the customer for all the instalments paid. The customer, for his part, would pay R32,595,60 for usage, calculated at R4.60 per kilometre driven, plus an additional R27,149 for depreciation. The customer accepted responsibility for usage but not for depreciation.”

The NCC investigated the complaint and subsequently referred it to the National Consumer Tribunal under section 73(2)(b) of the CPA, claiming that Wingfield had violated the provisions of section 55(2)(a) to (c), 56(2)(a) and (b), and 13(1)(a) and (b).

The Tribunal issued a decision that Wingfield was in breach of section 55(2)(a) to (c) of the CPA, ordered it to refund the purchase price paid by the customer, and imposed the administrative penalty.

Aggrieved by the Tribunal ruling, Wingfield approached the high court to intervene by setting aside and to review the outcome. 

In their arguments, Wingfield alleged that the Tribunal was mistaken in stating that it was an ‘undisputed fact that the flywheel and clutch experienced problems within three days after purchase’.

“It points out that what the customer reported three days after the sale, (that there) was a smell coming from the rear wheel and a clutch that didn't feel right, and that there could be various explanations for these issues, including overheated brakes and/or an overheated clutch caused by the vehicle being driven hard,” court documents read. 

Dismissing the application to set aside and review the Tribunal ruling, Judge Lister Nuku said the approach taken by Wingfield is detrimental to the very purpose of the CPA and the National Consumer Act.

“To the extent that Wingfield claims that the defects in the clutch and the flywheel were caused by the manner of driving of the customer or his son, Wingfield did not present any evidence to support that claim but merely speculated.

“Wingfield could have easily settled this issue at the point when the customer merely asked Wingfield to pay for the repairs. Wingfield refused despite the obligations imposed by section 56(2)(a) of the CPA. But for the intervention of the NCC and the Tribunal, the customer would have been left out in the cold,” said Judge Nuku.

chevon.booysen@inl.co.za