Dodgy car salesman applies for sequestration and then sells vehicles on Facebook
The ruling was hailed as a “major new consumer protection decision”‚ a test case and a strong warning to motor dealers who are doing business as if the Consumer Protection Act doesn’t apply to them.
But despite the National Consumer Tribunal finding a Kraaifontein motor dealership guilty of prohibited conduct three months ago‚ and ordering that it refund Hanlie van Lill the R61‚000 she paid for a VW Passat which broke down within a week‚ she hasn’t received a cent of that money.
The owner of Western Car Sales‚ Chris Pretorius‚ having evaded the regulatory process every step of the way‚ has since closed the dealership and applied for sequestration.
And he has been advertising cars for sale on his Facebook page.
Contacted for comment‚ a defensive Pretorius said: “When a guy is on the ground‚ you jump on him‚” and claimed that his decision to close the dealership “is not because of that Passat at all”‚ before ending the call.
It’s been two years since Van Lill - who lives in Kraaifontein and works for a major insurance company in Cape Town - began her fight for justice.
But her widely lauded Tribunal victory is hollow without that refund.
“The whole process has been utterly frustrating‚” she said this week. “I’ve gained nothing.”
Van Lill bought the Passat from Western Car Sales in December 2015‚ knowing it had “clocked” 280‚000 kilometres‚ but feeling confident it would serve her well. But within three days the gears wouldn’t engage properly and two days after that the car broke down completely and was driven back to the dealership on a truck‚ at her cost.
But the dealership refused to take any responsibility for the car‚ pointing to the contract‚ which states: “Vehicle sold as it stands. No warranty. Due to kilometres and age‚” and a stamp stating: “This vehicle is sold with no certificate of roadworthiness. With no warranty. In a NON-RUNNING condition. As is/voetstoets/scrap.”
But as the Tribunal noted when the case came before it‚ another condition in the contract contradicted this: “I confirm the vehicle is in good quality (sic) and in good working condition‚” and a comprehensive checklist had ticks next to all the vehicle’s parts‚ with no indication that they were defective or unusable.
The CPA requires all companies to “warrant” a product - new or used - for six months. If it proves to be unfit for purpose during that time‚ the consumer may return it for their choice of a refund‚ replacement or repair.
That is unless the consumer agrees to accept a disclosed defect‚ but in this case‚ the Tribunal found that there was no indication that Van Lill intended to buy the car as a “non runner” or that she was told this‚ and the selling price didn’t indicate that either.
On September 4 the Tribunal found Western Car Sales guilty of prohibited conduct and ordered the dealership not only to refund Van Lill in full by September 26‚ but pay a further R100‚000 to the National Revenue fund within 30 business days.
It has done neither.
The judgment - the first pertaining to the conduct of a motor dealership - included a strong warning to the rest of the industry. “Dealers in motor vehicles cannot escape the peremptory provisions of the CPA.
“Consumers must be protected against dealers that use their contract terms to mislead consumers as to their rights.”
But Van Lill’s experience with Western Car Sales‚ one of hundreds of non-franchised dealerships across the country‚ is not encouraging.
Having paid private mediation company SA Consumer Complaints to take up her case - unsuccessfully - Van Lill lodged a complaint against the dealership with the Motor Industry Ombud of SA‚ which ruled in her favour‚ but the dealership ignored the ruling. The Ombud then referred the case to the National Consumer Commission (NCC).
After an investigation‚ the NCC referred it to the Tribunal as a test case in May.
With Western Car Sales and not its owner Pretorius named as the respondent‚ the judgment only applies to the company.
NCC spokesman Trevor Hattingh said the Commission had decided to enforce the tribunal judgment against Western Car Sales cc by lodging a case of contempt of court against the directors of the company with the police.
“It’s a criminal offence to fail to abide by an order of the National Consumer Tribunal‚” he said.
Joint provisional trustee in the case Gary Wallace told the Sunday Times that Pretorius had “lost everything” and while Western Car Sales had yet to be liquidated‚ it was no longer trading and there was “nothing in it” to liquidate.
Meanwhile Van Lill is paying her sister R2‚000 a month to use her car to get herself to work and her son to pre-school.