Georgie on car disputes
Alternative mediation resolution can provide redress
CARS and cellphones: it’s enough to drive you crazy. These form the bulk of the daily complaints that land in my inbox. Compared with cars though, cellular service providers and device issues are relatively easy to resolve – usually data usage can be explained away and faulty devices repaired or replaced.
But when it comes to high-value items such as cars, consumers are given the runaround. Tales about how new cars are purchased, serious faults are discovered and then the customer is treated abominably by dealerships which were only too eager to clinch the deal. In truth: not all new cars are a clean, problem-free slate on purchase.
Lucas Mahlomuza's issue with his car is, sadly, not unusual in the industry. He wrote to me, saying: “On January 7, I took delivery of a new BMW320D Sportline. The very next day I realised that the aircon was not functioning. I brought it back to the dealership and was offered a courtesy car.
“On January 11, I received a call from the dealer, telling me that the car was fixed and ready for collection. Upon my arrival, I had a long conversation with staff about my misplaced trust in the vehicle and my intention to terminate the contract immediately. They both assured me that this was a minor glitch that has been resolved and would not happen again.
“I took possession of the car, drove for about 10km and the aircon failed to function again. I immediately returned the vehicle to the dealer. They could not diagnose what the problem was as all the connections, gas levels were intact and the BMW fault detector couldn’t pick up any irregularities. I was asked to leave the car so that they could take it to the workshop in the morning for further testing.
“Based on the above, I no longer want this vehicle. This is a brand new car and I don’t expect it to have faults that go undetected. I can’t feel safe driving this car. What if there are other faults that have gone undetected? The dealership is refusing to cancel the contract.”
You might think it’s just the aircon, it can be repaired, but the fact that the dealership cannot determine what the problem is does not instil any confidence.
Without beating the same, tired drum, here’s the simplified version: the Consumer Protection Act (CPA) gives you an automatic six-month warranty. If a product fails within that period, you have the right to insist on a refund, replacement or a repair (the “three Rs”). This does not apply to changeof-heart items.
But when a problem can easily be fixed, you should give the company the opportunity to do so – especially considering the fact vehicles lose 25 percent of their value when they leave the showroom floor.
As Ann Goslin, the executive officer of the South African National Consumer Union, points out: “If the problems are ‘minor’ and can be easily fixed, the consumer has no recourse to ‘replace’ or ‘refund’ as long as the supplier carries out the repairs quickly and efficiently, so that the vehicle is returned in a functionally new condition. However, under the CPA the repairs themselves carry an implied warranty of three months, and should the problem recur within that period it provides grounds for the consumer to argue that the problem is ‘material’ and that the other two ‘Rs’ should apply.”
But what happens when dealerships insist on repairing materially faulty new vehicles?
“Take the matter to the ombudsman” is the default advice, but not all the offices have the capacity or jurisdiction to deal with complaints. Depending on the nature of your complaint, there are other avenues to explore: you could take it to the consumer courts (in most provinces), the Small Claims Court (provided the claim is less than R15 000), or the High Court (for matters worth in excess of R130 000).
It shouldn’t be necessary to resort to expensive litigation though. ADR is a nonadversarial dispute resolution process that uses informal conciliation, mediation or arbitration procedures to settle a dispute, Durban attorney Salina Govindsamy says.
“Due to the informal and flexible nature of the ADR process, the interaction between the parties is non-adversarial and this can result in swift decision-making. The outcomes of ADR are generally confidential in nature.”
Govindsamy explains the process: “I start by writing a letter to the supplier or service provider explaining the set of facts and the sections of the CPA that have been breached and invite them to reply. If the facts are not refuted, then we negotiate what will be done to assist the consumer in rectifying the matter.
“Should the supplier/service provider refute the facts of the matter, then I call for a meeting of the parties. At the meeting, I explain that my position as a mediator is to help both sides to reach an amicable solution. The inclusion of a neutral party assists to ease any tension.
“We then discuss the matter and the facts and I explain the law as it exists under the CPA. In order to assist the resolution, I often rely on previous case law to guide the parties in resolving the matter.”
The decisions of an ADR agent are binding because, at the outset, the parties agree to abide by the mediator’s decision and, crucially, that the process will be confidential.
“I have not had a matter that once resolved, a party has thereafter reneged on his or her undertakings. I take a hands-on approach in communicating with both parties until all responsibilities have been fulfilled.
“The consumers are generally of the opinion that their matter was given priority and their concerns were heard and a fair outcome was reached.
“The company understands that the confidential outcome will not be publicised and therefore there is no precedent that is set, and each matter will be dealt with on a case by case basis.
“In addition, their brand will not be tarnished by the consumer reporting them on public platforms.”
Be aware that the Prescription Act might come into play so you don’t want your case delayed. Generally speaking, most rights must be enforced by legal action taken within three years.
“In my mind, prescription can only be interrupted if the matter is referred to an ombudsman before the three-year period has run out. The clock then stops and even if the ombudsman does not find in the consumer’s favour, the consumer’s right to challenge before a tribunal or court is preserved.
“What is key to note is that while the matter is between the consumer and the supplier and even an ADR agent, the clock is still running,” she concludes.