If you’ve bought a car and landed a lemon, you have a right to cancel the deal – but you must move swiftly, writes Georgina Crouth.
Buying a second-hand vehicle can be a minefield, which is why it’s advisable to work through a dealership because reputable companies offer customers peace of mind that the vehicle will have undergone proper roadworthiness inspections, the paperwork will be in order and, if anything goes wrong within a specified guarantee period, it will be repaired at their cost. Or, so you’d think.
Naison Chirapura elected to buy his second-hand car through a reputable dealer and soon regretted it. Now, he wants to cancel the deal.
Chirapura, a first-time buyer, found his dream car, a 2013 Audi A3 TFSI S 3-door, at Williams Hunt in Fourways and took it home on Friday, September 29, 2017. The following day, he excitedly went through the user’s manual and noticed problems: The boot would only open with a remote and the speakers were torn. Those were the least of his problems.
That Sunday, October 1, the engine cut out on the highway.
“My girlfriend and I had decided to take the car to church and on our way there, I noticed the car vibrating when I stopped at traffic lights and that the turbo was struggling to kick in after acceleration. In addition to this, the engine light would start flashing on the dashboard and the EPC (electronic power control) light was on all the time even when the car was in motion. Furthermore the back shocks were making a noise when the car was moving,” he says.
He managed to get to church, but on his way home, the car had significantly less power. “It would cut off at traffic lights and intersections. The engine light again started flashing and the EPC light was still on, the car was struggling to accelerate and climb up hills and, if put into third gear, it would cut out, forcing me to move into second gear. Also, the automatic start and stop function was not working and the car itself said the function was not operating.”
The following business day, he notified Williams Hunt and Wesbank that he wanted to cancel the deal. He asked the dealer to replace his car with another A3. Williams Hunt refused, only offering a repair.
Oddly, he’s still waiting for the roadworthiness certificate, a service book, or proper diagnostic reports that should have been conducted before it was sold in an “excellent running condition” to him. What he has been provided with is a questionable used-car report, which notes a different mileage, does not detail when it was conducted, by whom or any other vital information.
Dealer principal Earle Austin told me: “We view the statements from our customer as below extremely serious. As such, I would like to propose a meeting between yourself and all the relevant parties… Kindly note the following: (The) customer’s vehicle was attended to by Audi and under the Audi warranty. We supplied a courtesy vehicle for the customer while his vehicle was being attended to by Audi. All faults have been attended and repaired as per our legal obligation. While we fully understand and sympathise with the inconvenience and frustration the customer experienced, it was unforeseen and attended to as soon as we could in a fashion that would be expected.”
But Chirapura is not taking their word for it – he still has the car, but no paperwork or proof the repairs were in fact done. The G2 114-point check and preparation schedule notes the coil pack and the boot switch were replaced, and some minor chips and scratches repaired. But the mileage does not add up and the shocks are still “out”, even though it was ticked as fixed.
“Wesbank told me I must sort it out with Williams Hunt, even though the bank is the owner of the car until it’s paid off. They’re not helping the customer. Williams Hunt says I must sort it out with Wesbank or take it to the ombudsman, which will take many months to resolve.”
Noose around his neck
Chirapura says he has lost trust in the brand, their cars and the way the matter was handled. “To Williams Hunt, this is just another sale; to me, it’s a 73-month burden which could possibly cost me my life or a life of someone I am close to. Seventy-three months is a very, very long time and no consumer should carry the burden of paying for a product they are not satisfied with, comfortable with and will not be able to make use of for more than half the duration of the said instalment period. This car put the lives of two people at risk because of the negligence of (the Williams Hunt) team.”
And even if the coil pack was the only mechanical issue, the dealership has not addressed the lack of paperwork for the car.
He told Williams Hunt he wouldn’t take the car back unless it was replaced, which is when they took back the courtesy car and “forced” the Audi back on him. He also asked for an independent assessment, which they declined.
“If proper and accurate diagnostics, checks and services were done by Audi Fourways and G2 certified prior to selling the car, as stated by GM Williams Hunt Fourways, the above-mentioned issues would have been solved,” he said.
It’s a poor reflection on Williams Hunt, which notes on its website: “Great service and reliable products remain our top priority. Our commitment is to do whatever it takes to meet and exceed your expectations."
A deal breaker?
Does Chirapura have grounds to cancel the deal with Wesbank and Williams Hunt? I asked dispute resolution team director at Norton Rose Fulbright South Africa Inc, Riccardo Petersen, a National Credit Act specialist.
He believes the NCA and the Consumer Protection Act offer Chirapura protection. “Section 55 and 56 of the CPA give consumers an implied warranty of quality. The customer needs to tell them that he’s exercising his rights by invoking the provisions of section 56 of the CPA and they either have to repair, replace or refund.
“Section 127 of the NCA allows you to surrender goods and terminate the agreement. There will be some costs associated, though, in terms of lost value. If there was misrepresentation by the dealership, the financier should sort it out. It also depends on the contract – what it says in terms of quality.
“Section 128 of the NCA also says a consumer who has unsuccessfully attempted to resolve the issue may apply to the National Consumer Tribunal. He needs to give written notice to terminate as soon as possible and within five days return the car to the dealership. Ask the financier: Where do you want me to deliver this?”
Wesbank has refused to cancel the deal. Chirapura says they threatened to hand him over to debt collectors if he failed to pay his instalments, as per the terms and conditions of the contract.
I asked Wesbank about it, but they failed to meet repeated deadlines. They did, however, promise an investigation.
Every new or used vehicle sold in South Africa must pass a roadworthiness test before it can be registered and licensed in the new owner’s name.
The AA says an estimated 539 854 vehicles on our roads are unroadworthy. With no paperwork or service history, Chirapura is left in a precarious position: The bank won’t cancel the deal, the dealership won’t replace it and both encouraged him to go to the ombudsman. And he can’t drive it – or sell it.
Do your homework
Automobile Association spokesman Layton Beard says they would advise that consumers do their homework: Never rush into a deal – especially relating to a private sale. Before any money is exchanged, make sure the paperwork is in order.
“Check the service history and if you have any doubt, phone the people listed and ask whether they have actually done the work. You could take the vehicle to Dekra for an inspection, or a testing centre. Once you pay a deposit on a car, or have the financing approved and have possession of the car, it becomes much more difficult. If the dealership isn’t prepared to assist you, take it to the dealer network. And if that fails, go to the ombud – or contact a lawyer.”
What the roadworthiness certification entails
- The body must be rust-free and without any damage that could pose a risk to cyclists and pedestrians.
- Doors should be able to open and close with ease from both inside and outside the vehicle, and be firmly attached. Inner-door panels must be in place and in a good condition.
- Windscreens should be crack-free, all windows should be able to be opened and closed, and at least one correctly functioning windscreen wiper should be fitted.
- All lights and indicators must be in working order. The high and low beam of the headlights must function correctly and all lights should be securely fitted.
- The tread on all tyres, including the spare, must be at least 1.6mm deep. Tyres and wheels must be the correct size and adhere to manufacturer specifications.
- Brakes must be in good working order and brake discs must not be grooved or concave.
- The chassis should not show any sign of weakness or damage. The undercarriage must be free of rust and there should be no visible fluid leaks. Shock absorbers must not be worn out.
- Exhaust mountings must be secure and the exhaust should be undamaged, with no visible smoke emissions.
- The engine compartment should be clean and without signs of damage and leaks. There should be no loose or visible wiring. The battery must be clean, properly secured and have the required number of clamps.
- The hooter, odometer and speedometer must work. Seats must be securely in place and all seatbelts must be operational.
Sources: AA, Arrive Alive, Department of Transport, RTMC