Point of view: Cancer survivor triumphs in tribunal case against defective vehicle dealer

Emma Attwell’s long and painful journey has finally come to an end. After three years of fighting for justice, while simultaneously undergoing chemotherapy for cancer, the National Consumer Tribunal has ruled in her favour, ordering Wheeler Dealer Auto Sales CC to pay her R32,225.75 plus interest and legal costs for repairs to a defective vehicle they sold her.

Attwell’s ordeal began in March 2022 when she purchased an Opel Vivaro 1.9 from Wheeler Dealer. Within a week, she had to replace a faulty alternator. By June, she noticed an oil leak, which she hoped could be resolved during a routine service. At the time, she had relocated to her parents’ home after being diagnosed with cancer in April.

She booked the vehicle for a service at ST Motors on July 26, 2022. Although she was told the leak was minor, the car lost power just 10 km later and had to be towed back. Attempts to obtain the full service history from Wheeler Dealer, owned by Nicholas Grobler, were unsuccessful, blocking her access to the warranty.

A strip-and-quote conducted in October revealed a blown head gasket and a cracked engine block. ST Motors quoted R122,358.75 for repairs. Attwell moved the car to Car Services City, which confirmed the damage and issued a lower quote of R73,225.75. She applied the R40,000 warranty and requested Wheeler Dealer to cover the R32,225.75 shortfall. Her request was refused.

She then turned to the Motor Industry Ombudsman of South Africa, but her complaint was dismissed. The ombud claimed that third-party repairs had voided the implied warranty under the Consumer Protection Act (CPA).

Consumer law expert Trudie Broekmann, whose firm represented Attwell, strongly disagrees: “The Consumer Protection Act (CPA) is crystal clear on this, it's only when a vehicle has been altered (not repaired) that the implied warranty cannot be used,” she said. “The fact that the ombud stubbornly clings to this misinterpretation despite repeated judgments by the Tribunal to the contrary raises concerns about anti-consumer bias.”

In the Tribunal hearing, Wheeler Dealer argued that Attwell’s continued use of the vehicle after detecting the oil leak amounted to gross negligence and that her engagement with a third-party repairer voided the warranty. Attwell denied this, stating she only drove the car to the scheduled service and was undergoing chemotherapy at the time, limiting her need to travel.

The Tribunal accepted her version, finding that she ceased operating the vehicle upon detecting the leak and acted responsibly by booking a service immediately.

Gerhard van der Merwe, who represented Attwell, said the Tribunal found that the damage, namely the cracked engine block and blown head gasket, constituted a defect under section 53(1) of the CPA. The vehicle failed to meet the standards outlined in section 55(2)(a) to (c), and Wheeler Dealer failed to honour its obligation under section 56(2)(a) to repair the defect at its own risk and expense.

“In doing so, the dealership infringed on the consumer’s rights in terms of the CPA,” Van der Merwe said. “The respondent’s action not only contravened sections 55(2)(a) to (c). It also constitutes a textbook example of the type of prohibited conduct the CPA seeks to eliminate.”

Reflecting on the experience, Attwell says: “I think the most devastating part of the whole saga was the feeling I had been taken advantage of by the dealership. I placed my trust in them, as one does when buying a vehicle, and this was taken advantage of.

“What made it harder was that the dealer knew I was a single mother without much money, and he still chose to try absolutely every trick to evade his responsibility.

“The financial impact was also devastating. I was paying for a vehicle I couldn’t use for more than 50% of the time I have owned it, including insurance. Many times, I was not able to be with my children when they needed me because I simply could not get there".

On one occasion, she was unable to reach the hospital after one of her children nearly drowned.

Broekmann added: “We find that dealers routinely try to shift the blame for defects in vehicles they sold to the consumer by alleging driver abuse. But what they seem to miss is that he who alleges must provide proof of such abuse. And in the majority of cases, they cannot put forward any such proof; in fact, we're regularly advised by expert mechanics that no type of driving behaviour could result in the defect that is manifesting in the vehicle".

* Maleke is the editor of Personal Finance.

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