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The customer's not always right

By unknown | Jun 29, 2009 | COMMENTS [ 0 ]

THE saying that the consumer is always right does not always hold.

THE saying that the consumer is always right does not always hold.

Consumers can be equally guilty of a breach of contract and the seller might maintain an action against them for damages for non-acceptance.

The complaint Consumer Line received from Count Mkhwanazi bears reference.

He cancelled a contract of sale because he was retrenched a day after he bought the second-hand car pictured.

Mkhwanazi says the car was suitable for the purpose it was bought for and there was nothing wrong with it, but he believes the dealer treated him unfairly when he refused to refund the sales amount.

On the other hand, the dealer is willing to deliver the vehicle to him except that Mkhwanazi refuses to accept it.

He even admits he bought the vehicle of his own will and that there had been no trace of unfair business practice.

Mkhwanazi's problem started six months ago when he approached Trade Center Motors to buy a second-hand vehicle for R35 000.

After inspecting the car he instantly paid R33000 and promised to pay the balance of R2000 on the date of delivery.

His wife agreed that there was nothing wrong with the car and that it was a necessity for the family.

Mkhwanazi says at the time of purchase he was aware that his company was in the process of retrenching employees, but did not think he would be on the list.

A day after he purchased his set of wheels his employment was terminated.

"Unfortunately I lost my job and had to cancel the deal the following day," he says.

"I was disappointed when they told me that they won't be able to refund the money since they had already paid it to the owner of the car."

Mkhwanazi believes he has been treated unfairly and insists that the dealer refund him out of his own pocket instead of waiting for Trade Center Motors to sell his car.

Consumer Line spoke to Hein Beneke, owner of Trade Center Motors, who said the car Mkhwanazi bought was still available for delivery.

He said he was not in breach of the contract since he was still willing to fulfil his side of the contract.

Beneke said he accepted Mkhwanazi's cancellation and undertook to sell the car on his behalf and he had found that amenable.

He said he explained to Mkhwanazi that the purchase amount had been paid to the owner of the vehicle on delivery of the original documents that had to be transferred into his name.

Beneke said it was a consignment, meaning the buyer packed his car for him to sell on the client's behalf.

"I am sympathetic to his [Mkhwanazi's] situation but he must have known that he could not use retrenchment as an excuse for cancellation of the car sale," Beneke said.

"He cannot even claim protection under retrenchment policies when retrenchment happened a few days after committing to a big purchase, because he knew it was likely to happen."

He said that he had no money to give Mkhwanazi a refund until his car is sold.

Beneke said he was not obliged to sell the car but was willing to help.

"I have advertised the car on his behalf at our cost. I am doing the best I can to help him and if there are no buyers I will have to ask him to fetch it."

Gerald Brits of the Offices of Consumer Affairs said he could not establish any unfair business practice perpetuated by Beneke.

He said the Sales of Goods Act provides that where a buyer wrongfully neglects or refuses to accept or pay for the goods, the seller may maintain an action against him for damages for non-acceptance.

This might include storage fees and insurances fees which he may incur for keeping his car.

Brits added that the fact that the seller has bend over backwards to resell the car on Mkwanazi's behalf should not be construed as an admission of wrongfulness or an unfair business practice.


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