A few weeks ago I tackled the thorny issue of defective cars and the Consumer Protection Act, the upshot being that while the act entitles you to choose a refund or replacement over a repair in the case of a sofa or a fridge which breaks within six months, it’s a different story when it comes to cars.
It’s a very complex issue, thanks mainly to the huge cost of cars and the bank finance issue, plus the fact that Motor Industry Ombudsman Johan van Vreden and the National Consumer Commission have to balance the needs of the consumer with that of the industry, which, Van Vreden says, would be “brought to its knees” within months if it were forced to replace cars with relatively minor problems.
I understand that; just this week the owner of a newish BMW wanted to know if he could demand a refund or replacement car because there was a problem with the upholstery.
But what if a vehicle fails in a major mechanical way, repeatedly, within the first six months?
In that case, a replacement or refund would be appropriate, Van Vreden says, but each case would have to be considered on its merits.
All of which brings me to the cases of the two Tata Super Aces which turned out to be not-so-super. In fact, they’ve brought their owners nothing but unrelenting financial and emotional distress.
On its website, Tata describes its “mini-truck” Super Ace like this:
“It’s powered to take your business places, with a large body, convenient one-ton payload capacity, remarkably low operating economics and superior driver comfort.”
EVERYTHING KEPT GOING WRONG
First to write to me about her catastrophic Super Ace experience was Rosa de Swardt of Durban, on behalf of her son Justin de Swardt, who owns a catering business along with Ross Lottering.
The company bought their Super Ace in January 2014 from Tata uMhlanga and things went wrong from the start.
The calamity list reads as follows:
“It’s gone back three times with brakes problems, twice for clutch repairs, it’s had two replacement gearboxes, a new prop shaft, the window-winders malfunctioned, there’s a water leak and now it’s overheating”.
“How do I put a spit in the back of a car?”
De Swardt estimates that the business has been without the vehicle for a total of six weeks as a result of the problems.
Astonishingly, in all that time, they have had the use of a loan vehicle only once, and were made to pay R700 to insure it.
“Initially the dealership offered us a little Chev Spark as a loan car, which was totally useless.
“A few days later they gave me an open-back bakkie, which is just as bad as you can’t transfer food in an open vehicle.”
De Swardt says the vehicle’s unreliability has taken a massive toll on the business.
Desperate to be free of the Super Ace, she asked for a refund.
Pearl Dhlamini-Lukeru, customer care consultant with Tata distributors Accordian Investments, told her:
“Once a complaint is logged with Tata SA, we see that the vehicle gets repaired to manufacturing specifications.
“We do not exchange vehicles or cancel the deal.”
That’s quite an extraordinary blanket policy.
I told Tata, when I took up the case: “To my mind, Ms De Swardt is entitled to have the vehicle taken off her hands at this point, and refunded an amount that is not a trade-in amount, but one which takes into consideration the fact the vehicle has proved to be defective in a number of respects.
“She is not interested in a replacement vehicle as her experience with this one has led to her losing faith in the brand.”
Larry da Costa, Accordian’s aftersales general manager, then came up with a buy-back offer: the purchase price less usage – the bakkie has done about 40 000km.
“Please note that the licence pack, extended warranty and deposit cover are not included in the calculation as they are value-added products.”
With the bin liner and canopy, the bakkie cost R134 000.
From that amount, Tata subtracted R47 800 for usage and offered to pay De Swardt R86 000, from which she was to settle the amount she owed the financing bank.
“You will be liable for bank interest and shortfalls with the bank.”
De Swardt then got a settlement figure from her bank: R131 000.
“So we have to pay in R50 000, and then still find a deposit for a new vehicle,” she told da Costa.
“Bear in mind that this vehicle was not even two months old when the problems started. “
Da Costa responded by adding another R7 000 to the company’s buy-back offer, bringing it to around R93 200.
But De Swardt is still not happy.
“I feel it is just not right that we should take the knock because of an inferior product.
“We have already had huge losses because of this vehicle - we cannot afford this.”
“You really believe this is good business practice?”
At that point, I happened to get an e-mail from a woman who’d bought the identical vehicle in the same month – January this year – from the Tata dealership in Springs.
Esme Oosthuizen, who was widowed last November, leaving her with no income, borrowed money to buy the bakkie in order to operate a bed delivery service.
But, as with De Swardt’s Super Ace, it has proven to be anything but super.
The problems began within the first month and culminated in her being told the gearbox had to be replaced.
Still the bakkie wasn’t running properly and one night on the way to Boksburg the gearbox jammed.
“I was left in the dark alone next to the highway, waiting for a tow truck.”
After that, she locked the Super Ace in her garage for five months, doing her deliveries in her brother’s bakkie instead.
“But about three weeks ago, my brother needed his bakkie back, so I was forced to use the Tata again.”
Within two weeks, the bakkie started smoking badly.
The Tata dealership in Centurion attempted to repair it, but the problem continued. She’s now been told the diesel pump needs to be replaced.
“I demand a new bakkie.”
Oosthuizen told Consumer Watch: “Too much time, effort, trust, work, clients and money have been lost due to this bakkie.
“Time after time, I have given Tata the opportunity to fix the problem and I will not stand for this any more.”
The bakkie has only travelled about 5000km.
I sent Oosthuizen’s e-mail, along with De Swardt’s latest response, to Da Costa.
“It seems to me that the fair and ethical thing for Tata to do is take back these problematic vehicles and put the buyers into a financial position that allows them to buy another vehicle in order to carry on their business,” I said.
His response began with De Swardt’s case.
“We are trying to assist as best we can. Our obligation is to put the customer back into the position they were in prior to entering into a contract with the dealership when purchasing the vehicle, but keeping in mind that the law ensures that both parties are put in the same position and that neither of the parties are put into a position of financial loss.
“We are getting back a used vehicle, and no longer a new vehicle - as what was sold to the customer, hence the usage cost of the vehicle that has to be taken into account.
“Ethically, we do not intend to, and will not make any profits on such a deal; we are putting a lot of money in from our side to try to assist the customer as best we can, leaving us with a financial loss.
“Unfortunately, we cannot be held liable for any further financial costs, such as bank interest, that have been put on to the buyer as a result of external parties, such as a bank.”
He said Tata had contacted the financing bank “to see how best they can assist the customer in writing back the interest and bank charges from the current settlement.
“We hope that by doing this, the customer will be in a better position to purchase a new vehicle.”
As for Oosthuizen’s case, he said: “I have personally been in contact with her and I have assured her that we will do everything in our power to keep her mobile and to assure her that should there be any further breakdowns on her vehicle that we will support her in every way to ensure she can still carry on with her business.”
And what of the fact that both women have experienced similar problems, at least with regard to the bakkie’s gearbox?
“We are aware of the failures which we have experienced in the network and are monitoring this very closely in order to minimise the current failures and to avoid further failures in the future,” Da Costa said.
“We are currently investigating the matter and making contact with other customers to inspect their gearboxes in case of similar failures.
“We are well equipped to handle the situation by having the necessary components available to attend to a customer’s vehicle, should a failure occur, and to replace with a new component.”
Oosthuizen was incredulous.
“Really, Wendy, my bakkie only has 5000km on it, and it’s already been in for repair so many times.
“By the time I get to 40 000km, there will be nothing left. I can’t even pay last month’s rent because of loss of business.”
Talk about a consumer injustice!
Both sets of business people have paid dearly because of a defective vehicle. Their business has suffered; they’ve lost income and incurred extra costs.
Da Costa’s comment that “the law ensures that both parties are put in the same position and that neither of the parties are put into a position of financial loss” is extremely telling.
The supplier of a grossly defective vehicle – as with any other product – is obliged to take responsibility for it, and that means carrying the financial loss for it.
Not in a small way, and not as a favour. - Pretoria News
Wendy Knowler is a consumer journalist.