The fine was given to Avura for contravening sections of the Consumer Protection Act (CPA). Avura was ordered to repay a consumer and his insurance company a total of R106 088.28.

This follows a complaint by Vukani Muthaki on 15 July 2022 who purchased a pre-owned 2014 Mazda vehicle from Avura Executive Auto for R288 577.50.

Vukani alleged the vehicle presented certain problems and became inoperable within the first 28 days of the sale.

After the vehicle broke down, Vukani informed Avura Executive Auto of the vehicle’s condition and requested the vehicle's repair but the dealership denied any liability and maintained the vehicle was sold in good condition without any defects.

Vukani was quoted R106 088.28 to repair the vehicle and filed a claim under his mechanical warranty with his insurer, Innovation Group, which assessed the vehicle and concluded it had overheated and the engine required reconditioning.

The Innovation Group paid R75 000 towards the cost of the repairs, with Muthaki paying the balance.

He filed a complaint with the Motor Industry Ombudsman of South Africa (MIOSA) on 5 September 2022 but the ombudsman concluded on 18 November 2022 that it did not have the jurisdiction to recommend a claim for damages, a refund, or compensation because the repairs had already been done and paid for.

A complaint for relief was then filed with the National Consumer Commission (NCC) on 28 November 2022.

Vukani claimed that Avura Executive Auto’s actions amounted to a contravention of section 56(2) read with section 55(2) because the vehicle sold to him was defective and the dealership refused to repair the defects when requested to do so.

He further submitted the reason Avura Executive Auto refused to repair the vehicle was that it was sold with a 1 000km or 30-day warranty and denied any liability for repairing the vehicle because it had already been driven more than 1 000km.

Avura Executive Auto opposed the application and denied it contravened any provision of the CPA. The dealership claims it had the vehicle serviced on 17 May 2022, about two months before it was sold to him, and this service included a check of the cooling system, and no faults were reported.

The NCC’s investigation concluded that Avura contravened section 56(2) read with section 55(2) of the CPA and applied to the National Consumer Tribunal for an order confirming the contraventions, declaring that these contraventions amounted to prohibited conduct and for other further relief.

Avura Executive Auto referred the tribunal to the insurance assessor’s report detailing the assessment conducted on the vehicle on 16 September 2022.

The assessor recorded the damage to the vehicle as a blown cylinder head gasket due to overheating and confirmed the cause of the overheating was difficult to establish but was likely due to water loss since all the cooling system components were corroded and contaminated with rust owing to prolonged operation with insufficient coolant mixture.

Avura further submitted the vehicle was driven about 4 000km after Muthaki took possession of the vehicle and claimed it was Vukani responsibility to maintain the vehicle and his own negligence and failure to do so resulted in the vehicle overheating.

In its submission it says Vukani cannot rely on the implied warranty provided under the CPA and the application should be dismissed.

The tribunal says that on a balance of probabilities it is persuaded that the assessor’s finding that damage to the vehicle was likely caused by water loss owing to the corrosion and rust contamination of all the cooling system components cannot be attributed to the consumer's negligence.

The tribunal further says it is not convinced that the relatively short period in which Vukani drove the vehicle can account for the assessor’s finding that there was a prolonged operation of the vehicle with insufficient cooling mixture, leading to possible water loss, rust and corrosion of all the cooling components.

“On a balance of probabilities, the Tribunal is inclined to agree with the applicant that this type of corrosion and rust contamination was a latent defect in the vehicle at the time of its sale.

“No evidence before the tribunal suggests that the damage was caused by the consumer’s negligence or normal wear and tear while the consumer had the vehicle,” it says.

The tribunal adds that by Avura’s own admission, Vukani was not required to service the vehicle between the time he took possession of it and the time it overheated.

It says there is no evidence that Vukani ignored any warning signals that the vehicle needed to be checked or that it was overheating.

“There is, therefore, no evidence of any misuse of the vehicle by the consumer or any failure to take reasonable steps required to maintain the vehicle within the period of usage. The evidence before the tribunal indicates that the vehicle was defective when sold and that the defect only manifested itself later.

“The evidence further indicates that the respondent [Avura Executive Auto] refused to repair the vehicle when the consumer [Vukani] requested it be repaired.

“Therefore, the respondent’s [Avura Executive Auto’s] conduct amounts to a contravention of sections 55(2) and 56(2)(a) [of the CPA],” it says.

NCC Acting Commissioner Mr Hardin Ratshisusu welcomes the tribunal’s judgment and says it should serve as a deterrence and a reminder to all suppliers that they must comply with the CPA and its regulations.