Asked by NicK on 04-10-2021 19:23:59
Question posted in the Consumer Protection Law category relating to Western Cape

Bought a secondhand vehicle in December 2020. Asked if there was accident damage and they said there wasn't. Took the vehicle for an inspection 10days after purchase at Dekra. Found multiple defects, much of it due to major accident damage that had also bent the chassis and body. Entered into a dispute with the dealership owner. Eventually they agreed to repair a list of parts I presented to them. The repairs they did are suspicious to say the least. The chassis was not included and I regret that, as I just got a quote for the least amount of work to repair it being R27500 or to fully replace the chassis R28500. Not all things I requested and were agreed on by myself and the dealership were repaired during the dispute either. To note: the repairs 'they did' came up to about R21000.

In the purchase agreement it says refunds or cancellations needs to go through an alternative resolution mediator or be escalated to the motor industry ombudsman. The agreement also states that although the vehicle has had a roadworthy and has been fully inspected by them 'no defects to the vehicle that has been or can be reasonably perceived or detected, that the seller is not able to detect any latent or hidden defects' However, the damage to the chassis is in plain sight, all you need to do is look under or jack the vehicle up, which they did do as they were busy with the propshaft before they sold it to me (which is still broken after it was 'repaired' before sale and then 'replaced' during the meditation process.

Anyway, I believe the vehicle has a diminished value of 20-40k if I was to sell it now as is and even after the chassis has been repaired it will have a diminshed value due to the major accident damaged, ignoring all the other mechanical defects it has.

Can I, and would I have a reasonable chance of winning if I took the dealership to the small claims court for R20000? This would be based on a diminished value claim of the vehicle, as I bought it at a normal market price for a non-accident damaged vehicle.

Further information relating to Question:

none

Posted by Att. Patrick on 05-10-2021 09:12:25

Hi there Nic 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.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Normally I would say that you must definitely sue them for payment of R20k if that represents the decrease in value of the car, just like you've explained it, but I have one reservation to that!

My reservation is that instead of suing them immediately, or demanding that they take the vehicle back, you entered into an agreement with them that they would attend to some repairs of the car, and you then both agreed on a list of repairs, and they did repairs to the car. 

If you sued them, would their defence not be: "But we settled this dispute by repairing items on the car! You can't turn around now to ask for your money back, or a reduction in purchase price, because we settled this whole issue."

If you can find a way around that possible defence, then I think that you should go for it. 

I mean, you specifically asked if the car had been damaged in an accident and they said No. They lied. This is called a fraudulent misrepresentation which was made specifically in order to induce you into buying the car. This is really bad for them, from a legal argument point of view. 

My only other issue is why you never took the car for an inspection before you bought it! That would have stopped this whole story from unfolding.

Hi, thanks for the reply, yes I ultimately shouldn't have conceded and just agreed to repairs as I did and I don't really have an argument for a refund now as the repairs were what was agreed on. Unfortunately I have no evidence of asking the salesman about the accident damage and they are claiming there is nothing in the OTP that says I required a vehicle with no accident damage. To your last point, yes I should have got a test, I just trusted them and thought they were reputable. I will only ever buy a secondhand vehicle that I've had tested from now on.





Lastly and most importantly I came across this now. It's an email from the mediator and attached to it was a document of repairs the dealership had sent to me to authorize which I agreed to, but with a caveat that additional things be added. I called the owner about he just said "what" and then said that they would do the repairs. The document was the final document sent in the mediation process.





Letter from RMI mediator:





"Good Day Nic,





Your mail is received and noted.





The dealer has indicated he is willing to assist with the repairs as seen in the attached document, please authorize the repairs as seen in the attached document in writing soonest."


------------------


List from dealership:





Att: CAPE SUV





On further inspection on Suzuki Jimny here is what I found:



- Driver side chassis (front) slight damage caused by minor off road incident.


- Left lower trail arm on front diff is slightly bent and can be replaced.


- Engine Oil & Oil Filter was not replaced to be advised.


- Left Rear Shock Leaking Oil (to be replaced).


- Oil Leak on Gearbox selector Shaft to be rectified.


- Front and rear prop shaft needs universal joints and needs to be balanced


- Fan belt has minor cracks (to be replaced)


-Exhaust rubbers to be replaced.


-Rear lower control arm bushes to be replaced.


-Slight wear to gearbox mounting.


-----------------


Therefore they agreed to attend to the chassis(?), but they never repaired it. The rubbers on the exhaust also weren't repaired.


I mediated through MIOSA and they have closed the file as I sent no evidence to them. This was because I gave up on the whole thing and was burnt out/intimated to carry on fighting after the dealership owner was screaming at me in person and threatening to sue me. I've now sent MIOSA evidence a day and a few after their recommendation letter.



"08 Oct 2021


Recommendation by the MIOSA:


With the above in mind, the office of the MIOSA cannot support the expectations of the complainant as stated in his submission to this office and we confirm closure of this file.



VERY IMPORTANT NOTICE


Should the consumer decide to lodge a complaint with the National Consumer Commission (NCC) a copy of the MIOSA case file, free of charge, will be supplied to the consumer which must be filed with the complaint at the offices of the NCC. In the event of no further communication being received from the consumer within 7 days from date of the recommendation letter the MIOSA file will be closed."
_______________________________________





Please could you let me know my options now?

Posted by Att. Patrick on 11-10-2021 16:52:30

If you want them to fix the "Driver side chassis (front) slight damage caused by minor off road incident" issue, that is contained in the email letter and there is nothing stopping you from demanding that they comply and fix it. I'm just not too sure, from a mechanical point of view, exactly what they will do.

Perhaps you should take your car to another panel beater and ask them "what must happen" and then take that information back to your dealer and explain to them exactly what you require them to do?

Sorry this isn't all lined up. I'm remembering this now that may be important. I sent them a detailed report of all the damages from Dekra at the start of the process. Months in they again now ask me for a detailed report, so I took it to a random mechanic and he gave me a quote on a few things, he wouldn't have been able to have done a quote on the bent chassis as he isn't a panel beater, this was sent to the dealership before they took it in and assessed the vehicle themselves and sent me back the list above with the chassis to be agreed on. I also told the dealership I wanted a few other things assessed by them that Dekra couldn't do. So this was still an assessing stage for me. They are claiming in the MIOSA mediation that the quote I sent as a detailed report is all that I wanted done and are ignoring the list sent at the end. Does this change things?





RMI mediators messages to me bellow:





"Good Day Nic,





After active consultation with the owner of Cape SUV he requested a detailed report with regards to assumed damages to yjr vehicle.





Are you able to obtain such a report?"





This is what is said when I sent the quote:



"Here is a quote for repairs (and a mechanics view on the service they said they did), is this what Anton wanted in addition to the Dekra report I already gave him and you?




Mediators response:
God Day Nic,











"Your mail to Cape SUV has been received and noted.








I suggest you avail the vehicle for an inspection into the alleged parts failure as noted in the estimate.





I have communicated this to the owner and requested he arrange such with his workshop preferably on Thursday 04th March."




Part of my response:

"Hi, yes I can send the vehicle in to be assessed by their workshop then or before.



Also attaching video of the bumper that needs to be assessed, loose bolts or something.



Lastly, the stabilizer was mentioned by Dekra as possibly being bent, but needing to be opened up to look at. I would like that assessed too. "

Posted by Att. Patrick on 12-10-2021 10:23:46

Look, the timeline of events is quite important, and it is quite hard to understand exactly what happened and exactly when. It might be the case that I need to actually read all of the email correspondence to fully understand.

What you need to do is to work out, based on the timeline, WHAT they agreed to, and then hold them to that. 

If there is something on the list of agreed repairs that they didn't do, then you need to demand that they attend to that, and if they don't, then you can sue them in the small claims court for the cost of the repairs. 

Thanks Patrick, I really do appreciate you taking the time on this and hear you.