Good day.

I recently bought a car from a dealership and it started overheating soon after I bought it. I sent it back to the dealership who replaced the radiator at their cost. I drove it close to the house and it looked ok, however the first time I took it on the highway it overheated again. It was not all the way in the red, but the engine did lose some power. I drove it to the closest garage and waited for it to cool down. It however did not want to start, so I phoned my wife to tow me home. At home it actually started again, but it sounded like one of the cylinders was not working. I then arranged with my insurance’s roadside assist to tow the vehicle to the dealership. When the driver loaded the car, it was still starting as I drove it from my garage to behind the tow truck to be loaded.

After I then sent the car back, the dealership said that they suspected the head gasket blew, which was what I suspected as well, and would fix the car at their cost of about R19k. Subsequently they sent me an email that the engine has seized up completely and needs to be replaced which will cost about R30 and it is for my account. I replied that the car was still starting when I sent it to them, so it must have seized after I sent it. The manager then arranged for a forensic report to be done on the vehicle. The report indicated that the car is now seized up, but does not specify when this occurred. After the initial loss of power, I stopped at the closest garage I could find and called my wife to come and tow me home. The following morning, I sent it to the dealership as indicated above.

They are maintaining that I drove the vehicle even after the initial loss of engine power, which I did not since my wife towed me home (I can prove it from Etoll photos) and that they received it in a seized state, which is not true since it was still starting when I sent it that morning. I’m sure the driver of the tow truck would be able to verify that.

I agree with the report’s discussion up to this point “After breaking down, the vehicle’s engine had an opportunity to cool down and the heat seizure that had occurred had relaxed and the engine had come loose and later the customer had been able to restart the engine however, instead of summoning and waiting for a recovery vehicle to collect the vehicle, the customer had obviously elected to continue driving the vehicle until the engine overheated so badly the engine had locked up solidly and the crankshaft can no longer be rotated even when a tool with a long lever handle is applied to the nose-end of the crankshaft.”

After my wife towed me home, the engine had indeed come loose and I was able to start it again at home. I did not drive it however and left it in my garage to the next morning when I sent it with the tow truck to the dealership. I certainly did not “elect to continue driving the vehicle until the engine overheated so badly the engine had locked up solidly.” I don’t know when exactly this occurred, but I certainly did not drive it to that degree.

I paid for the car in cash, so please advise what my options are to get my money back.

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.

Your first option is to try cancel the sale agreement due to the fact that the car was defective when you purchased it and that subsequently the car's engine seized and now you want to return the car and get your money back. I can guarantee you that the dealer will not simply agree to this, and they will fight you the whole way. I'm sure that the dealer will continue with their argument that you drove the car after the engine warning light came on and THAT is the reason why it overheated and seized up. It will come down to a dispute of fact which will need to be proved in court through witnesses and photos and statements. You might very well find that your sale agreement contained a provision that the sale was voetstoots, which means that the sale is final and you can't come back to the dealer after the fact. 

I assume that this was a second hand car? If it was a new car, and it had a factory defect, then you have rights in terms of the Consumer Protection Act which can assist you with a refund / return. But if it was a second hand car, you don't have those same rights. 

If the sale was voetstoots, then your only option is to keep the car and take it somewhere else to get fixed, and then to sue the dealer for the costs of the repair. You will need to prove in court what the costs were, and you will need to prove why the dealer is liable to pay the costs. 

I think that either way, the dealer is not going to simply fix the entire engine at its own cost and give the car back to you. They will fight you. Fixing a faulty radiator is one thing, but if an engine over-heats and seizes up, that's something completely different!

The dealer will try rely on the report that you mentioned above in court to "prove" that you caused the engine to seize. The dealer will need to call a witness who can back up the report. You will need to call a witness (and it could be you) to counter the report and explain why the report is wrong. The court will not just accept the report, because anyone could write anything in a report.

The court will want to make its decision based on evidence which can be tested and cross examined in court. 

Perhaps the faulty radiator had something to do with the engine over-heating? If you could prove that link, that would be first prize, however the dealer's argument that you should not have started the car up again could continue. Which will mean that you're back to leading evidence. 

You will need to be aware that this will most likely be a long, drawn-out experience, and if you fight it in court, a costly one. 

Perhaps what you could do is to report the matter to your insurance company in the hopes that you are covered under your insurance policy?

Otherwise, you'll need to go to court. Step 1 is to send them a letter of demand; step 2 is to issue a summons. 

What you could also do is to speak to the dealer and the workshop and ask them if they are not perhaps covered for faulty workmanship under their business insurance. If they are, then you could reach an agreement with them that you will pay their excess (might be R2000) and they will then admit that the over-heating was caused by the radiator issue, and then they will put in a claim with their insurance company - and get your car fixed!

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.