To Whom it may concernI am hoping to obt...

Asked by George on 16-07-2020 11:04:18
Question posted in the Criminal Law category relating to Western Cape

To Whom it may concern

I am hoping to obtain more clarity on a sticky situation I am facing. 

The case as I have it:

A Mercedes SLK 200 was advertised on a Car dealers site naming the dealer name and was placed through the dealers sales Manager.

It was advertised as a Pristine 2007 model with original paint work and very low mileage and a full service history.

Price was on the heavy side but something I was willing to pay for such a pristine vehicle going on the details in the ad, a video, of the car and being unable to inspect the car myself, being out the country.

I believed the video to be honest.

Deal was going well but then during the course of investigating the services history, it was noted that the 60k service had not been done with a Mercedes agent.

The 60k service being a major and important service in the life of a Mercedes SLK 200 automatic, I asked if to get details of the service to see if the gearbox had been flushed as it should have.

The owner then took it upon himself to do a quick A service with the Mercedes agent, nice of him, but I still needed to see the details of the service. We were sent a number of invoices from the Mercedes Agent.

During the course of communications mainly through the said dealers Sales Manager, it was mentioned that the owner asked I pay R10K deposit to ensure that I am indeed interested in the car, and that he would have it placed on my name and delivered at my door, which we had asked if it was possible, something I happily did.

Then whilst going through the Mercedes service invoices, I discovered that the car was in fact a 2005 model and not a 2007.

This raised alarm bells and I enquired through my wife on this fact.

The response from the sales manager was that they had made a mistake and that it was in fact a 2006 model as per the paperwork which showed a date with the caption that this was not the year model date, of the 1st month of 2006.

I then contacted the Sales Manager direct and again he said that it had been a mistake, I then informed him that I had lost faith in the deal and want to withdraw from the whole deal.

I then questioned him on the deposit, he then stated that this was in fact a private sell and that he had just been advertising it for a friend. He further went on to tell me that it would seem that I was just looking for a reason to pull out of the deal.

I informed him this was not the case, I just like to know what I am buying and that the trust relationship had been broken by this miss – advertising.

He informed me to take it up with the owner and that he has now nothing to do with the deal except advertising the car on his floor.

After sending messages, tried calling the owner, no reply and he does not answer the calls. He is aware that I am asking for part of my deposit back so is refusing to communicate with myself.

Out of good faith, I had offered to have a look at the costs he had incurred and that we could come to an agreement as to how much he should pay back of my deposit. I responce has been acts in totally the oppisite line.

Costs he incurred

He had done the A  service out of his own will, before finding out exactly what I was after – the flushing of the transmission at 60k kms, in attempt to still my enquiries into the servicing of the vehicle. A bit concerning at this point but I took it on good faith. I stand nothing to gain on this service. He has eveything to gain.

Next was a roadworthy certificate, of which I would have no problem paying for, as this has been done at my request. The car however should of passed at no extra cost due to it being in "Prestine condition"

So this is where I am, Do I go ahead and lay a charge of theft against the owner, do I take legal action against the dealer for false advertising?

I have even gone to lengths of contacting the woner of the dealer who just happens to be family of the Sales Manager. The dealer just keeps on referring me to the owner and says they have every right to advertise private cars but does this mean they have the right to advertise false information and innitiate sales on this false information. They say it is a private sale and have nothing further to do with it?

I can honestly say, I am not sure how legite any if the players are anymore nore how legit is the car in question.

I would like to know what is the best actions going forward in this case? 

I have a copy of the orginal video, communications attempts, all other communications, copies of registration papers, copies of service invoices of the agent

My residence is in the Western Cape, the dealer and car owner is in Vereeniging.

Please can you let me know.

Thanking you in advance.

Answer to the Question

Posted by Att. Patrick on 16-07-2020 12:02:15

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

I'm sorry to hear about your issues with the car purchase.

No, you can't open a charge of theft against the seller because he has not actually stolen your money. You paid it to him. This is a civil dispute (opposed to a criminal complaint) and the SAPS won't get involved. They will tell you to see a lawyer and get your deposit back through court. 

I don't know how the complaint against the dealer will actually get you anywhere, because surely the dealer's defence will be "But that's what the seller told us!", therefore we've done nothing wrong. I think that this defence will enable them to escape liability, especially since the deal with actually done between you and the seller. i.e. a private sale - facilitated by the dealer sure, but a private sale never the less.

My advice is that if you want to proceed with the purchase of the car, you must either - (i) go up to Vereeniging (you'll need to make a plan) to view the vehicle yourself and then drive it back to Western Cape, or (ii) you must accept the car for what it's worth, take a risk, and finalise the sale.

From a legal point of view you are not actually allowed to back out of a deal just because the year model was wrong. What you ARE entitled to is a reduction of purchase price if you can show that you would have paid less if you had known that it was an older car by a year. 

If you can't prove that you would have paid less, then a court will hold you to the original deal.

I think that the weakest part of your argument is that the trust relationship has broken down because the one service was not done at a Merc dealership. A court will not cancel a sale agreement because of this. Rather, you will similarly be entitled to a discount (reduction in purchase price) IF you can show that you would have paid less if you had known that it was serviced at a third party dealer.  

Personally, I think that you are expecting too much from a 2007 model car sale. It is an old car. There are for sure things wrong with it. Either you must accept it as it stands, or you must walk away. 

If you decide to walk away then you are entitled to sue the seller for the return of your deposit. You can do this through your local small claims court, or through the magistrates court. It is your choice. There will be some costs involved at the magistrates court but the small claims court is basically free. You'll just need to represent yourself.

If you visit the small claims court and speak to the clerk of the court, he/she will assist you with preparing the demand, and the summons, and explain how the summons must be served, and how the process works.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Information provided by client

Hi Patrick, thanks for the reply, but does the fact that it was falsely advertised count for nothing then? It seems like a easy way out then for the dealers? they can get out of anything they advertise.
What about the consumers act - "Consumer Protections from unfair Trading Regulations dealing with this type of transactions on giving false information - either verbally, visually, or in writing, for example misrepresenting the vehicles specification or history at any time before, during or after transaction."

Answer to the Question

Posted by Att. Patrick on 22-07-2020 10:03:40

Q: But does the fact that it was falsely advertised count for nothing then? --> Yes and No. If they advertise the car as a 2007 model, and you buy it for the price advertised, and then you find out that it is a 2006 model, and you only paid that amount because it was advertised as a 2006 model, then you are entitled to a discount / refund on the purchase price. So the fact that it was advertised incorrectly does count for something. It gives you the discount / refund.

I know what you're saying about the CPA, but you are dealing here with a dealer who is basically the man in the middle. They have already said to you that it was the information given to them by the seller and that it was a mistake. It was not done on purpose in order to gain an advantage. Based on this "excuse", I don't think that the commission will take the dispute seriously and I don't think that any adverse finding will be made against the dealer. 

Information provided by client

Hi Patrick
Many thanks, it is a pity how the law has been set up, I paid a holding deposit for a vehicle that did not basically exist, a 2007 which turned out to be a 2005. I immediatly let them know that I was cancelling the deal based on this miss-representation when I became aware of it, and now I have lost the R10 000.00 holding fee?. Wander how many people they take for a ride like this, good way at making money that is for sure, scam 4 - 5 people and you are doing real good and it is all tax free.

Answer to the Question

Posted by Att. Patrick on 27-07-2020 09:28:43

If you decide to walk away then you are entitled to sue the seller for the return of your deposit. You can do this through your local small claims court, or through the magistrates court. It is your choice. There will be some costs involved at the magistrates court but the small claims court is basically free. You'll just need to represent yourself.

Maybe it is a scam, who knows? Maybe they think that you won't come after them for the R10k deposit because it is a relatively small amount to sue for with attorneys in a different province?

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