What Consumer Act says about sales of ‘old’ cars
Heidene Lawrence says she’s tried everything for the past five months to cancel the deal on the 2011 “service-approved” Corsa that she bought from the Weltevreden Park Hyundai dealership on July 13 this year.
Since then, it’s broken down five times - twice on the Johannesburg roadside, endangering family’s lives. The dealership has attempted to fix the vehicle’s problems but refuses to cancel the deal.
It seems dealerships can pretty much do as they please, flouting the Consumer Protection Act (CPA). And often, they get away with it.
Lawrence has been presented with three options of other cars - all more expensive and outside her budget, which is a violation of the National Credit Act’s affordability guidelines.
She writes: “Hyundai is prepared to settle the finance on the vehicle only if we take a vehicle that costs R100000 more than original purchase. We did not ask for this problematic vehicle. It was purchased within a budget that was affordable to our pocket, from a brand we believed in. Now, our lives and jobs are in danger due to an unreliable and faulty vehicle. We have an epileptic in the family and a vehicle needs to be available at all times.”
She says she has been patient, friendly and amicable, but Hyundai South Africa is impotent in resolving such matters.
Problem after problem
Seven days after the purchase, a worrying noise alerted her to its first problem: the alignment was out and the coil pack needed replacing.
She writes: “The car stayed with the dealer for a few days, and we were told we are ‘lucky’ to get a courtesy car. It took several calls to the dealership to get the vehicle repaired and finally get a call-back from their customer service department.”
On August 25, six weeks after she bought the car, Lawrence wrote to Hyundai head office, saying the car was sold to them under “false pretences”. She ended up mailing them four times, but no one acknowledged her complaints until she contacted Hyundai International. Eighteen hours later, she had someone’s attention and was advised to approach the Motoring Ombudsman of SA (Miosa) because the dealership had stonewalled her. Head office effectively told her its hands were tied when it comes to branch matters.
“Hyundai is in contravention of the CPA,” Lawrence says. “The car was bought via bank-approved finance, with a deposit. We had believed Hyundai was one of the best car dealerships. We wanted a good, affordable car, with a warranty. Now, we’re filled with fear for our lives and regret ever buying that car.”
Since then, the car has experienced major problems, with the water pipe, head gasket and the cambelt needing replacement, and the gearbox repaired.
After five breakdowns, Lawrence doesn’t want the car any longer but the dealership is blaming “driving style” for its problems and considers the matter closed. It also told her since she had accepted a courtesy car and it had paid for the repairs, that she must keep the Corsa - or take it to Miosa.
Social media is awash with complaints about Miosa’s service and this dealership.
Hyundai SA was contacted repeatedly about the matter. Spokespeson Deon Sonnekus told me the car was “old anyway” and that he didn’t know if the dealership was guilty of violating the Consumer Protection Act, but would check with customer service.
It’s certainly a violation of CPA rights, consumer specialist lawyer Trudie Broekmann said. “Even if the car is very old, has hundreds of thousands of kilometres on the clock and is sold for a song, the dealership will be liable to repair or replace the car at its cost, if the consumer returns it within six months of delivery.”
In the National Consumer Commission versus Western Car Sales, the National Consumer Tribunal made clear that dealerships’ attempts to hide behind contract terms or a refusal to take the car back can result in a substantial fine, she explains. “In the case of Western Car Sales, the dealership went belly-up after the fine was imposed.”
What the CPA says:
If a car is defective, unfit for its purpose, not durable and usable for a reasonable period, or is not in good working order, then the consumer can return it within six months of taking delivery, and the dealership or manufacturer must repay the purchase price, or repair the car at its expense or replace the car. The consumer can decide whether they prefer a replacement, refund or repair.
If the car has been repaired by the dealership once and breaks again (the same fault or a new one) within three months of repair, the dealership cannot repair it again, but must refund the consumer or replace the car.
If the dealership refuses to comply with these obligations, the consumer can report the dispute to the National Consumer Commission, who must investigate, refer the case to the Tribunal, and the supplier faces a fine of up to R1million or 10% of turnover, whichever is greater, can be imposed on the recalcitrant dealership.
Broekmann doesn’t recommend referring disputes to the ombudsman.
“They have in the past reported that they find for the dealership in 60% of cases referred to them by consumers. I do recommend warning other consumers about the terrible experience on social media, consumer complaint websites and in the press: As consumers we have a right to know which suppliers are flouting the law.”
Broekmann says she receives regular complaints about car dealerships that refuse to comply with the law in cases when they sell a consumer a lemon. “It’s disappointingly rare to encounter a car dealership or even car manufacturer which complies with the requirements of the CPA related to return of defective cars.
“Greater objectivity and efficiency at the ombud (and knowledge of the CPA) would go a long way to keeping the industry honest, but my clients invariably complain of inappropriate rulings - and delays where the ombud is dealing with a complaint.”