THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1272/2019
In the matter between:

MOTUS CORPORATION (PTY) LTD t/a
ZAMBEZI MULTI FRANCHISE
First Appellant

RENAULT SOUTH AFRICA (PTY) LTD
Second Appellant

and

ABIGAIL WENTZEL
Respondent

Neutral citation:
Motus Corporation (Pty) Ltd and Another v Wentzel (Case no
1272/2019) [2021] ZASCA 40 (13 April 2021)

Coram:
WALLIS, SALDULKER and ZONDI JJA and CARELSE and KGOELE
AJJA

Heard:
26 February 2021

Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
Supreme Court of Appeal website and released to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 13 April 2021.

Summary:
Consumer Protection Act 68 of 2008 – consumer approaching the high
court to enforce their rights under the Act against the supplier of the motor vehicle
before exhausting internal remedies set out in s 69 – whether s 69 precludes consumer
from approaching the court to seek remedy –Refund remedy: consumer not entitled to
a refund of the purchase price unless they satisfy the court that all requirements
stipulated in s 56(3) have been met – determination of amount of the purchase price
to be refunded regulated by s 20. Court a quo materially misdirected itself in awarding
refund remedy – appeal succeeds.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Mavundla J sitting as
court of first instance):
The appeal succeeds with no order as to costs.
The order of the high court is set aside and is replaced with the following order:
‘The application is dismissed, with no order as to costs.’

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Zondi JA (Wallis and Saldulker JJA and Carelse and Kgoele AJJA concurring)

Introduction
[1] On 16 May 2018 the respondent, Ms Abigail Wentzel (Ms Wentzel), brought an
application in the Gauteng Division of the High Court, Pretoria, against the first
appellant, Motus Corporation (Pty) Limited t/a Zambezi Multi Franchise (Renault) and
the second appellant, its parent company, Renault South Africa (Pty) Ltd (Renault SA).
She claimed to be entitled to cancel a credit agreement between herself and Renault
in respect of a Renault Kwid motor vehicle (the vehicle) and to the refund of the
purchase price in the amount of R256 965.84. She tendered the return of the vehicle
against the refund of the purchase price. The essential basis for her claim was that
Renault had, in breach of ss 49(1)(b), 55(2)(b) and (c), 56(2)(a) an (b) and 56(3) of the
Consumer Protection Act 68 of 2008 (the Act), sold her a brand new vehicle that was
woefully defective. Renault denied the alleged breaches of the Act and that Ms
Wentzel was entitled to the relief that she sought.

[2] The matter served before Mavundla J. The learned Judge upheld Ms Wentzel’s
claims and granted an order in the following terms:

‘1.
That the respondents are jointly and severally, the one paying the other to be absolved,
ordered to repay the applicant the total purchase [price] and finance charges for the Renault
Kwid in an amount of R256 965.84 within fifteen (15) days of this order;
2.
That the aforesaid amount shall be paid to the trust account of the applicant’s attorneys
of record, within fifteen (15) days of service of this order;
3.
That the respondents, are jointly and severally, the one paying the other to be
absolved, ordered to pay taxed or agreed costs on attorney and client scale.
4.
That the applicant returns the relevant vehicle to the premises of the first respondent,
on the date of payment of the amount mentioned in order 1 above.’

[3] The appeal is before this Court with leave granted by the court a quo. Renault
attacks the court a quo’s conclusions and the factual findings on which they are based.

[4] The issue is whether Ms Wentzel made out a case in terms of ss 56(2) and (3)
of the Act for the refund of the purchase consideration paid to Renault in respect of
the vehicle. The related issues are whether the vehicle had defects; whether such
defects were resolved by Renault; and whether there were any further complaints
received by Renault from Ms Wentzel, subsequent to the repairs undertaken by
Renault.

The sale agreement
[5] Central to an appreciation of the issues on appeal is the sequence of material
events. On 7 December 2017 Ms Wentzel purchased the vehicle from Renault in terms
of a written offer to purchase. The total purchase consideration payable to Renault was
R176 400.41 made up as follows:
 Selling price

:
R131 491.23
 Metallic paint

:

3 000.00
 Smash and grab

:

4 000.00
 Motor Plan

:

10 745.97
 On the road charge

:

5 000.00
 VAT

:

21 663.21

[6] Ms Wentzel obtained finance for the vehicle from the Motor Finance
Corporation (Pty) Ltd t/a M.F.C. (MFC), a division of Nedbank, and the latter settled

her indebtedness to Renault. The MFC provided finance to Ms Wentzel in terms of a
Variable Rate Instalment Sale Agreement (instalment sale agreement). The total
purchase price payable to MFC under the instalment sale agreement, after addition of
finance charges and other related charges, was R261 924.84 payable in monthly
instalments of R3 637.37 over a period of 72 months. The relationship between
Renault and MFC is not apparent from the papers. Counsel for Renault informed the
court from the Bar that there was no relationship between the two and further that the
vehicle was not subject to a floor plan agreement. But what is clear, is that in terms of
clause 3.2 of the instalment sale agreement MFC is the owner of the vehicle and is
entitled to retain ownership of the vehicle until all obligations and repayments to MFC
have been fulfilled by Ms Wentzel. In terms of the instalment sale agreement
Ms Wentzel was obliged to collect the vehicle from Renault and to confirm
acknowledgement of delivery on MFC’s behalf. Additionally, she was required to
inspect the vehicle for any defects before collecting it, and, if any defect was found, to
decline delivery of the vehicle and inform MFC immediately of that fact.

Alleged defects and breach of warranty
[7] In her founding affidavit Ms Wentzel alleged that Renault guaranteed that the
vehicle was suitable for the purpose for which it was generally intended to be used,
that it was in good working order and free of any defects, and fit for use on a public
road. She alleged further that Renault guaranteed that the vehicle was safe,
roadworthy and would be useable and durable for a reasonable period of time.

[8] Ms Wentzel contended that in breach of the warranty, Renault sold her a vehicle
beset with numerous defects, some which manifested themselves even before it left
their premises on 7 December 2017. She said that when she started the vehicle, while
on Renault’s showroom floor, she heard a ticking and/or rattling sound emanating from
‘the front part of the vehicle’. She asked a sales representative, a certain Mr Nicolas
Andrade about the cause of the noise. Mr Andrade informed her that such noise was
something not uncommon to find in Renault Kwid models and it normally occurs when
the navigation system starts running.

[9] Ms Wentzel said that despite the assurance given to her by Mr Andrade, the

noise did not stop. Instead, it increased in its intensity. On Monday, 11 December 2017
she reported it to Mr Andrade, who in turn, reported it to Renault service department.
There was then an exchange of emails between her and Mr Andrade. On 14 December
2017 he wrote that he had not forgotten her and would sort things out for her. On
17 December 2017, a Sunday, she wrote asking him to phone her in relation to the
mats and a noise that made the lights flicker. She also mentioned that her air-
conditioning sometimes did not cool the car. He responded on Tuesday in an email
receipt of which was delayed for some reason until 15 January 2018. In the meantime,
the service department arranged for the vehicle to be booked in for inspection on
27 December 2017.

[10] It is common cause that on 27 December 2017, Ms Wentzel took the vehicle to
Renault for repairs. According to the job card which was prepared in respect of the
vehicle, the vehicle had a ‘tick noise in the dash and the hazards flashing’. The vehicle
had done 270 kilometres. The invoice that was generated for the work that was done
on the vehicle recorded that an immobiliser module was replaced. Mr Gerben van der
Merwe, the senior technician at Renault, oversaw the repairs which were carried out
on the vehicle on 28 December 2017. Ms Wentzel collected the vehicle from Renault
on 29 December 2017. There was no charge for attending to these matters.

[11] Ms Wentzel claimed that she had also on this occasion complained that the
Bluetooth system for using her mobile phone was faulty, although, like the air-
conditioning, this was not recorded on the job card. She said that when she collected
the vehicle, the Bluetooth was still faulty and stopped audible functioning once the
vehicle exceeded 70 kilometres per hour. She claimed in her founding affidavit that
over the next few days further 'troubles and/or faults and defects' manifested
themselves, but did not specify the nature of these. When this was pointed out in the
answering affidavit her reply was that it was not for her to report defects. She said that
as a result of these she contacted Renault SA and was advised to approach the Motor
Vehicle Ombudsman of South Africa (MIOSA) for assistance. Nothing was done
pursuant to this advice until 21 February 2018.

[12] The delayed email from Mr Andrade was received by Ms Wentzel on

15 January 2018. In another email addressed to various people at Renault on
23 January 2018, she said that she tried to contact Mr Andrade about her number
plates and foot mats and also advised him that her brakes were making a screeching
noise, the driver's side front window was rattling and the people could not hear her
when she phoned using the Bluetooth system. She took the vehicle back to Renault
service department on 23 January 2018. At that stage the odometer reading of the
vehicle recorded 2863 kilometres. The work that was carried out on the vehicle,
included ‘brakes modification’ and securing the window of the door on the driver’s side.
This was reflected on the job card and confirmed by Mr van der Merwe who oversaw
the repairs.

[13] According to Ms Wentzel, on 25 January 2018 she sent a photograph to Renault
showing that the roof rails were defective and pulling away from the vehicle. The
photograph is unclear, but seems to show that the roof rail has at the foremost point
become unclipped. Ms Wentzel said that by 22 February 2018, the noise in the vehicle
had reached an unbearable level. An immobiliser warning light came on when she was
driving home that evening. She telephoned Mr Andrade to ask him if it was safe to
continue driving the vehicle, given these problems. On his advice, she took the vehicle
back to Renault for service on 23 February 2018.

[14] The job card prepared in respect of the vehicle, records that the complaints
which were raised, were ‘warning light is on, wind noise when travelling over 70km per
hour, roof racks loose, Bluetooth sounds bad, rattle noise at 70 km, brakes noisy’. By
this time, the vehicle had done 6211 kilometres. The invoices issued by Renault on
28 February 2018 record that the brake pads were deglazed and roof rails replaced.
Renault explained that it was necessary to deglaze the brake pads in order to stop
and/or soften the noise that occurred with the application of brakes as the vehicle did
not have an anti-locking braking system (ABS). A vehicle health check was carried out
and Mr van der Merwe, who attended to the repairs himself, tested the car by driving
some 8 kilometres. In his affidavit he stated that every problem raised by Ms Wentzel
had been properly attended to and the car was not defective. Renault kept the car for
five days and returned it to Ms Wentzel on 28 February 2018.

[15] On 21 February 2018 Ms Wentzel referred the dispute to MIOSA for possible
assistance in terms of s 69(c)(i) of the Act. In her referral to MIOSA, Ms Wentzel quoted
what appears to be an email addressed to Renault in which she repeated the
complaints referred to above. She said that she did not want the car anymore and
asserted that she would not pay for this vehicle for the next five years. She sought a
full refund or ‘a vehicle that [Renault] have the means to fix every single component .
. .’.  Two days later the repairs referred to in the previous paragraph were undertaken.

[16] It is not apparent from the record what steps MIOSA took to attempt to resolve
the dispute, but what we know, is that about six months later, and on 10 September
2018, MIOSA declined to take her referral, stating that it did not have jurisdiction in
respect of the dispute. In doing so, it relied on s 17.2.6 of the South African Automotive
Industry Code of Conduct (the Code), which states that MIOSA does not have
jurisdiction in respect of any dispute ‘where legal action has been instituted by either
party, unless such complaint was received by MIOSA before such legal action was
instituted’. It further stated that it has ‘no mandate to solicit refunds or financial
compensation’. I find MIOSA’s reliance on s 17.2.6 of the Code, as a basis to decline
jurisdiction, very disturbing, having regard to the fact that no legal action had been
instituted by Ms Wentzel, when she referred the dispute to MIOSA.

[17] In her founding affidavit Ms Wentzel averred that, despite the numerous
attempts by Renault to repair the vehicle, the defects remain unresolved. She listed
ten items, but only three of these did not relate to items that had been attended to
when the vehicle had been with Renault on the three occasions when she had taken
it back for problems to be attended to. Her new and current complaints were about
loose back panels of the vehicle,1 a 'ticking' sound when the engine was hot or after
the car had been driven2 and a complaint that the air-conditioning was not blowing cool
air.3 She alleged that, due to these persisting problems in the vehicle, she, on 14 March
2018, escalated the matter to Renault’s dealer principal, Mr Werner Petzer, who she
said acknowledged the defects and offered to take Ms Wentzel’s vehicle back as a
trade-in for a Renault Clio. She said that the proposed deal was not favourable, as its

1 As the vehicle is a hatchback it is difficult to identify to what this referred.
2 It is unclear whether this was anything more than the sound of the engine cooling down.
3 This had not been reflected as a concern on any job card.

terms would have been to her detriment. For instance, her vehicle would have been
taken at a book value, which she considered was too low for a brand new vehicle.
Renault's response was that Mr Petzer had not acknowledged that the car was
defective, but sought to resolve the problems by assisting her to purchase a Renault
Clio to replace the Kwid as the latter was an entry level vehicle. However, she did not
qualify financially for such an arrangement.

[18] Ms Wentzel contended that Renault’s conduct, in offering to sell her another
vehicle on terms, which were to her detriment, was in contravention of s 68(1)(c) of the
Act. This section provides that ‘if a consumer has exercised, asserted or sought to
uphold any right set out in the Act or in the agreement or transaction with a supplier,
the supplier must not, in response . . . alter, or propose to alter, the terms or conditions
of a transaction or agreement with the consumer, to the detriment of the consumer’.
The section protects consumers from victimisation by the suppliers for enforcing their
rights under the Act against the suppliers.

The issues
[19] In addition to opposing the application on the facts, Renault raised four special
pleas. First, it argued that Ms Wentzel failed to exhaust the internal remedies provided
for by s 69 of the Act. It alleged that, in terms of the section, she had to, inter alia, refer
the matter directly to the Tribunal, or the applicable industry Ombud with jurisdiction,
accredited in terms of s 82(b), to the consumer court; alternative dispute resolution
and filing a complaint with the Commission, before approaching a civil court.

[20] Secondly, Renault raised a lis alibi pendens defence. In this regard, it was
alleged by Renault that Ms Wentzel had, prior to the institution of the proceedings in
the high court, referred the matter to MIOSA for resolution and that the matter before
MIOSA was still pending. Renault accordingly contended that Ms Wentzel was
precluded from seeking the exact same relief from it in two separate proceedings.
Thirdly, Renault contended further that Ms Wentzel failed to comply with rule 18(6) of
the Uniform Rules of Court, which requires that when a party relies on a contract, that
contract must be annexed to the pleadings. Finally, Renault averred that in light of the
irresoluble and material disputes of fact on the papers, which Ms Wentzel should have

foreseen, she should not have proceeded by way of motion proceedings. The alleged
disputes related to whether the vehicle had defects and whether such defects were
rectified by Renault.

[21] As regards the facts, Renault denied that the Bluetooth system stopped
functioning once the vehicle exceeded the speed of 70 kilometres per hour. It alleged
that Ms Wentzel only complained about the Bluetooth on 23 February 2018 and the
complaint was resolved, when it was explained that the system was working, but noise
from the car being driven at higher speeds, was the problem. It maintained that all of
Ms Wentzel’s other complaints relating to the vehicle, were attended to. It denied that
it breached the warranty by selling Ms Wentzel a vehicle that had defects. Renault
alleged that Ms Wentzel failed to return the vehicle or inform it of any of the alleged
unresolved issues relating to the vehicle. It averred that Ms Wentzel only brought the
vehicle for repairs on 27 December 2017, 23 January 2018 and 23 February 2018 and,
to its knowledge, all of her complaints were resolved.

[22] Renault argued that Ms Wentzel, after electing to have the vehicle repaired by
Renault, could not claim a refund of the purchase price. It contended that she was
bound by her election and it was not open to her to change it. Renault’s contention that
Ms Wentzel could not claim a refund of the purchase price because she had elected
to have the vehicle repaired, is not correct. Ms Wentzel’s case for the refund of the
purchase price was based on the allegation that the defects which were previously
repaired by Renault resurfaced within three months after the repair. Her claim for the
refund of the purchase price was not precluded by s 56(3) provided all of the
requirements of that section are met.

[23] As a result of MIOSA’s delay in investigating her complaints against Renault,
Ms Wentzel, on 16 May 2018 approached the court a quo. It dismissed all of Renault’s
defences. After setting out the purposes of the Act as set out in s 3(d) – to protect the
economic interests of consumers – and the obligation imposed on the courts by s 4(2)
– to develop common law as necessary to improve the realisation and enjoyment of
the consumer’s rights in general and to promote the spirit and purposes of the Act -
the court a quo concluded that:

‘the courts must take a robust approach towards the economic giants, such as [Renault], who
can flex their financial muscle to bully unsuspecting consumers to accept flawed goods, and
raise all sort of spurious defences and denials. In this case, there were too many flaws or
defects for a new vehicle. I am inclined to lean towards protecting the rights and interests of
the applicant’.
The court a quo accordingly ordered Renault and Renault SA jointly and severally to
make a refund of the full purchase price of R256 965.84, as set out in the instalment
sale agreement on the basis of its finding that the vehicle was simply not of good
quality. It did not explain on what basis Renault SA was held liable, notwithstanding
the fact that it had no contractual relationship with Ms Wentzel.

Discussion
Section 69(d)
[24] Renault submitted that Ms Wentzel's application to the high court was
premature, because she had not exhausted her remedies in terms of the other
provisions of s 69(d) of the Act, more particularly because MIOSA, to which she had
referred her complaints on 21 February 2018, had not yet rendered a decision, when
she commenced these proceedings. Section 69 reads as follows:
'Enforcement of rights by consumer.—A person contemplated in section 4 (1) may seek to
enforce any right in terms of this Act or in terms of a transaction or agreement, or otherwise
resolve any dispute with a supplier, by—
(a)
referring the matter directly to the Tribunal, if such a direct referral is permitted by this
Act in the case of the particular dispute;
(b)
referring the matter to the applicable ombud with jurisdiction, if the supplier is subject
to the jurisdiction of any such ombud;
(c)
if the matter does not concern a supplier contemplated in paragraph (b)—
(i)
referring the matter to the applicable industry ombud, accredited in terms of section
82 (6), if the supplier is subject to any such ombud; or
(ii)
applying to the consumer court of the province with jurisdiction over the matter, if there
is such a consumer court, subject to the law establishing or governing that consumer court;
(iii)
referring the matter to another alternative dispute resolution agent contemplated
in section 70; or

(iv)
filing a complaint with the Commission in accordance with section 71; or
(d)
approaching a court with jurisdiction over the matter, if all other remedies available to
that person in terms of national legislation have been exhausted.'

[25] The section has caused considerable difficulty and is the source of conflicting
judgments in the high court. The authors of Commentary on the Consumer Protection
Act4 say that 'the various entities that can be approached for purposes of redress are
not indicated in s 69 in an order that presents a clear picture of the exact route that a
person has to follow in this quest for redress'. Nonetheless they suggest that the
section contemplates a hierarchy of remedies and they make a valiant effort to
describe such hierarchy. 5 The difficulty posed by the notion that the section creates a
hierarchy of remedies is illustrated by cases where the route taken by the dissatisfied
consumer has avoided the applicable ombudsman with jurisdiction in terms of s 69(b).6
Requiring dissatisfied consumers to pursue other remedies under s 69 before
approaching the high court under s 69(d) has resulted in the consumer being non-
suited.7 In the present case MIOSA did not deal with Ms Wentzel's complaints until
10 September 2018, when it wrote to her saying that it had no jurisdiction, because
the complaint needed to be received by it before the institution of legal action. The
reference to it preceded the present litigation so it was incorrect to reject jurisdiction.

[26] The need for us to address the scope of s 69(d) fell away in argument, because
Mr Botes SC, who appeared for Renault and Renault SA, indicated that he would not
pursue the point as his clients preferred to address the issues of substance. Therefore,
we did not hear full argument on the matter. The issues arising from the section will
need to be resolved on another occasion. It suffices to say that the primary guide in
interpreting the section will be s 34 of the Constitution and the guarantee of the right

4 Naudé and Eiselen Commentary on the Consumer Protection Act (Original Service, Juta) 69-1. The
relevant chapter was written by Professor Corlia van Heerden.
5 Ibid 69-20 para 33.
6 Imperial Group (Pty) Ltd t/a Cargo Motors Klerksdorp v Dipico and Others [2016] ZANCHC 1 and
Imperial Group (Pty) Ltd t/a Auto Niche Bloemfontein v MEC: Economic Development, Environmental
Affairs and Tourism, Free State Government and Others [2016] 3 All SA 794 (FB). In para 43 of the
latter judgment Daffue J questioned whether the Act does in fact create an implicit hierarchy of
remedies.
7 Joroy 4440 CC v Potgieter and Another NNO 2016 (3) SA 465 (FB) paras 8-10 and Nzwana v Dukes
Motors t/a Dampier Nissan [2019] ZAECGHC 81 para 34.

of access to courts. Section 69(d) should not lightly be read as excluding the right of
consumers to approach the court in order to obtain redress. A claim for cancellation of
the contract and the refund of the price of goods on the grounds that they were
defective falls under the actio redhibitoria and dates to Roman times. Our courts have
always had jurisdiction to resolve such claims and there is no apparent reason why
the section should preclude a consumer, at their election, from pursuing that avenue
of relief until they have approached other entities.

[27] The section is couched in permissive language consistent with the consumer
having a right to choose which remedy to pursue. Those in (a), (b) and (c) appear to
be couched as alternatives and, as already noted, there is no clear hierarchy. Had that
been the aim it would have been relatively simple to set the hierarchy out in a
sequence that would have been apparent, not 'implied', and clear for the consumer to
follow. Furthermore, subsec (d) does not refer to the consumer pursuing all other
remedies 'in terms of this Act', but of pursuing all other remedies available in terms of
national legislation. That could be a reference to legislation other than the Act, or to
the remedies under both the Act and other applicable consumer legislation, such as
the National Credit Act 34 of 2005. Given the purpose of the Act to protect the interests
of the consumer, who will always be the person seeking redress under it, there is no
apparent reason why they should be precluded from pursuing immediately what may
be their most effective remedy. Nor is there any apparent reason why the dissatisfied
consumer who turns to a court having jurisdiction should find themselves enmeshed
in procedural niceties having no bearing on the problems that caused them to
approach the court.

[28] One further matter deserves mention. The contract between Ms Wentzel and
the first appellant dealt specifically with this question. It provided in clause 6.1 that if
she had a complaint, or a dispute arose, the parties would endeavour to resolve it
within seven days, failing which it could be referred to MIOSA. However, clause 6.2
said:
'Notwithstanding the contents of clause 6.1, either party has the right to approach a competent
court for urgent redress.'

Is such a contractual provision binding? It is easy to think of instances where one or
other of the parties to a dispute would want urgent relief, but the stringent construction
that some courts have put on s 69(d) would, if correct, appear to preclude it. That in
turn, takes us back to s 34 of the Constitution and a possible issue over the
constitutional validity of the section. In view of the approach by Renault and Renault
SA, we do not have to consider these problems in this case, but any court seized of a
similar contention will need to consider the issues we have mentioned and, no doubt,
others that have not occurred to us.

The other issues
[29] In relation to the issues identified by Renault for resolution, I prefer to leave
aside the defences of lis alibi pendens and non-compliance with Rule 18(6). Both are
technical and do not address the substance of the issues between the parties. Lis alibi
pendens is a purely dilatory defence and by the time the case was argued all the
relevant contractual documents were before the court. I turn then to the issue of
alleged defects and Ms Wentzel's rights in terms of the Act.

[30] It is apparent that the parties offered mutually destructive factual versions. On
Ms Wentzel’s version, the defects were never resolved by Renault. Renault’s version
is that all of the complaints raised by Ms Wentzel on 27 December 2017, 23 January
2018 and 28 February 2018 were resolved and no further complaints regarding the
vehicle were thereafter brought to its attention. It relied in this regard on direct evidence
from the technician who either supervised or personally attended to her car. There is
no basis upon which that evidence can be rejected on the papers. The basis of
Ms Wentzel’s claim depended on the determination of issues, as to which there were
serious disputes of fact and those factual disputes ought to have resolved by applying
the test enunciated in Plascon-Evans8 and subsequently explained by this Court in
National Director of Public Prosecutions.9

[31] This Court in National Director of Public Prosecutions held at para 26:

8 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 634-635.
9 National Director of Public Prosecutions v Zuma [2009] 2 All SA 243 (SCA); 2009 (2) SA 279 (SCA).

‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be
used to resolve factual issues because they are not designed to determine probabilities. It is
well established under the Plascon-Evans rule that where in motion proceedings disputes of
fact arise on the affidavits, a final order can be granted only if the facts averred in the
applicant’s (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP),
together with the facts alleged by the latter, justify such order. It may be different if the
respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. The court below did not have regard to these propositions
and instead decided the case on probabilities without rejecting the NDPP’s version.’
I will return to this aspect later in the judgment. The court a quo rejected Renault’s
contention that disputes of fact existed on papers. It decided the matter on the facts,
which it held to be common cause. In order to assess whether this was permissible it
is necessary to examine the relevant provisions of the Act.

[32] The objectives of the Act, are to develop and employ innovative means to ─
‘(a)
fulfil the rights of historically disadvantaged persons and to promote their full
participation as consumers;
(b)
protect the interests of all consumers, ensure accessible, transparent and efficient
readiness for consumers who are subjected to abuse or exploitation in the marketplace; and
(c)
to give effect to internationally recognised customer rights.’
The Act was enacted to, inter alia, promote and protect the economic interests of
consumers.

[33] Section 3 of the Act deals with the purpose and policy of the Act. It reads:
‘(1)
The purposes of this Act are to promote and advance the social and economic
welfare of consumers in South Africa by—
(a)
establishing a legal framework for the achievement and maintenance of a
consumer market that is fair, accessible, efficient, sustainable and responsible for the
benefit of consumers generally;
. . .
(c)
promoting fair business practices;
(d)
protecting consumers from—
(i)
unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices;

and
(ii)
deceptive, misleading, unfair or fraudulent conduct;
. . .
(g)
providing for a consistent, accessible and efficient system of consensual resolution
of disputes arising from consumer transactions; and
(h)
providing for an accessible, consistent, harmonised, effective and efficient
system of redress for consumers.’

[34] Ms Wentzel’s claim for the refund of the purchase consideration was grounded
on ss 49(1)(b); 55(2)(b) and (c); 56(2)(a) and (b); and 56(3) of the Act. The reliance on
s 49(1)(b) was misplaced. The subsection provides that any notice to consumers or
provision of a consumer agreement that purports to constitute an assumption of risk
or liability by the consumer, must be drawn to the attention of the consumer in a
manner and form that satisfies the formal requirements of subsecs (3) to (5). It finds
no application in a matter where the relief sought is a claim for the refund of the
purchase consideration. In any event, there was no factual support for the case based
on the provision of s 49(1)(b). Nothing further needs to be said about it.

[35] Section 55 of the Act guarantees a consumer, such as Ms Wentzel, a right to
safe and good quality goods. Section 55(2)(b) and (c) on which Ms Wentzel relied,
provide:
‘(2)
Except to the extent contemplated in subsection (6), every consumer has a right to
receive goods that─
(a)
. . .
(b)
are of good quality, in good working order and free of any defects;
(c)
will be useable and durable for a reasonable period of time, having regard to the use
to which they would normally be put and to all the surrounding circumstances of their supply.
. .’.

[36] The provisions of subsection (6) to which reference is made in s 55(2) do not
find application in this case, as there is no evidence that Ms Wentzel was expressly
informed that the vehicle was offered in a specific condition and that she expressly
agreed to accept it in that condition, or knowingly acted in a manner consistent with
accepting the vehicle in that condition. Ms Wentzel bought a brand new vehicle and
that being the case, she was entitled to the protection afforded by s 55(2). A right

afforded to a consumer in terms of s 55(2) exists, irrespective of whether it is
contractually warranted. It exists by operation of law and is protected by s 56. A
consumer may enforce it in terms of the Act or in terms of an agreement in the event
of its breach by the supplier.

[37] Section 56 reads as follows:
‘Implied warranty of quality –
(1)
In any transaction or agreement pertaining to the supply of goods to a consumer
there is an implied provision that the producer or importer, the distributor and the retailer
each warrant that the goods comply with the requirements and standards contemplated
in section 55, except to the extent that those goods have been altered contrary to the
instructions, or after leaving the control, of the producer or importer, a distributor or the
retailer, as the case may be.
(2)
Within six months after the delivery of any goods to a consumer, the consumer may
return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the
goods fail to satisfy the requirements and standards contemplated in section 55, and the
supplier must, at the direction of the consumer, either ─
(a)
repair or replace the failed, unsafe or defective goods; or
(b)
refund to the consumer the price paid by the consumer for the goods.
(3)
If a supplier repairs any particular goods or any component of any such goods,
and within three months after that repair, the failure, defect or unsafe feature has not been
remedied, or a further failure, defect or unsafe feature is discovered, the supplier must—
(a)
replace the goods; or
(b)
refund to the consumer the price paid by the consumer for the goods.’

[38] Consideration of the question of whether Ms Wentzel established a case based
on these provisions of the Act on which she relied, must start with s 53(1)(a), in which
the concept of ‘defect’ is defined, together with the concepts of 'failure', hazard' and
'unsafe'. It is clear that her claim was based on the goods having defects. ‘Defect’
when used with respect to any goods, component of any goods, or services means –
‘(i)
any material imperfection in the manufacture of goods or component, or in
performance of the services, that renders the goods or results of the service less acceptable
than persons generally would be reasonably entitled to expect in the circumstances; or

(ii)
any characteristic of the goods or components that renders the goods or components
less useful, practicable or safe than persons generally would be reasonably entitled to expect
in the circumstances.’

[39] The parties disagreed as to whether the alleged ‘defects’ relied upon by
Ms Wentzel constituted defects as contemplated by s 53(1)(a)(i) or s 53(1)(a)(ii).
Counsel for Renault submitted that, properly construed, Ms Wentzel’s complaint
related to defects falling within the ambit of s 53(1)(a)(ii). In other words, the complaint
of Ms Wentzel was about alleged defects relating to characteristics of the vehicle that
would render the vehicle less useful than persons generally would be reasonably
entitled to expect in a brand new vehicle.

[40] Counsel for Ms Wentzel submitted that Ms Wentzel’s complaint encompassed
both classes of ‘defects’. In particular he argued that the failure of the Bluetooth to
perform optimally when the vehicle travelled beyond a speed of 70 kilometres per hour
was a fact that constituted a material imperfection in the manufacture of the vehicle
rendering the vehicle less acceptable than persons generally would be reasonably
entitled to expect in a brand new vehicle. I do not think there is merit in this argument.
A Bluetooth system is accessory to the primary function of a motor car, which is to be
driven and to enable travel from place to place. A functioning Bluetooth system is no
doubt a convenience for making and receiving phone calls or other purposes related
to the use of modern technology. But a deficiency in it cannot render the goods less
acceptable than people generally would be reasonably entitled to expect from a motor
vehicle of this type, or render it less useful, practicable or safe for the purpose for
which it was purchased, namely, as a motor vehicle.

[41] On a broader basis, counsel emphasised that Ms Wentzel bought a brand new
vehicle, but because of the issues she encountered, it was like a second-hand vehicle.
It is not necessary to reach a firm conclusion as to whether the defects complained of
by Ms Wentzel fall either under s 53(1)(a)(i) or s 53(1)(a)(ii). It must be accepted on
the facts that are common cause that her vehicle did have certain issues, which she
brought to the attention of Renault. It is more difficult to determine whether they
amounted to defects as defined in the statute. Not every small fault is a defect as
defined. It must either render the goods less acceptable than people generally would

be reasonably entitled to expect from goods of that type, or it must render the goods
less useful, practicable or safe for the purpose for which they were purchased. No
evidence was led by either side to inform the court of what purchasers of entry level
motor vehicles are reasonably entitled to expect. Is every rattle or unfamiliar noise a
defect in terms of the statute? A defective module may be readily replaced, as
occurred with the immobiliser. Does that render the vehicle defective so as to entitle
the purchaser to return it and demand repayment of the purchase price? Clearly not.

[42] It is common cause that the issues with the vehicle started to manifest
themselves within six months after its delivery to Ms Wentzel on 7 December 2017.
The vehicle was taken in for repairs by Renault on 27 December 2017, 23 January
2018 and 23 February 2018. Renault at its risk and expense, repaired the defective
components in the vehicle. Assuming that these issues were defects, this is what
Ms Wentzel was entitled to in terms of s 56(2).

[43] Ms Wentzel was not satisfied with the repair remedy afforded to her by s 56(2).
Instead, she sought payment of the full purchase price she had to pay, pursuant to the
instalment sale agreement she concluded with the MFC. But she was not entitled to
claim a refund of the purchase price before all events stipulated in s 56(3) had taken
place. To obtain the refund remedy Ms Wentzel had to show, first, that Renault
repaired the defective parts; secondly, that within three months after the repairs, the
defects had not been remedied or that a further failure was discovered.

[44] The evidence revealed that the last time that the vehicle was repaired by
Renault, was on 28 February 2018 and on Renault’s version, which must be accepted,
Ms Wentzel did not report further defects to them after 28 February 2018. Apart from
twice raising the noise from the brakes, which had been explained as due to the fact
that the car was not fitted with ABS brakes, she never complained that a repair was
not properly carried out. Renault's evidence was that all repairs were properly carried
out. It is correct that Ms Wentzel saw Mr Petzer of Renault on 14 March 2018 and said
she informed him of the defects, which according to her, he acknowledged. But that
discussion occurred in a different context and for a different purpose. She had gone
to Renault to discuss the possibility of replacing Renault Kwid with another vehicle.

There is no record that she reported to Renault service department any defect relating
to the vehicle on 14 March 2018. It is correct that s 56(3) requires a further defect to
be discovered, not reported, for the consumer to be entitled to the replacement of the
goods or refund. In my view, it is required of a consumer to report further defects to
the supplier that manifest themselves within three months after the repair of the vehicle
as such reporting is necessary for the purposes of enforcing the warranty provisions.

[45] In my view, Ms Wentzel has failed to show that the requirements of s 56(3) were
satisfied and that she was entitled to a refund of the purchase price in respect of the
vehicle. The court a quo ordered Renault to refund to Ms Wentzel the total purchase
price and finance charges in an amount of R256 965.84. The court a quo misdirected
itself in ordering the refund of the purchase price. In the first place, as I have found
above, Ms Wentzel did not make out a case for a refund remedy. She failed to bring
her claim within the ambit of s 56(3) of the Act. Secondly, even if she had brought
herself within the provisions of s 56(3), she was not entitled to a refund of the amount
stipulated in the court a quo’s order. This was not the amount she paid to Renault. It
was the amount she agreed to pay to MFC in terms of the agreement with them. Her
claim for the refund was not against the financier but against the supplier of the vehicle.

[46] The definition of 'price' in s 1 of the Act is relevant here. It provides that ‘price’,
when used in relation to ─
‘(a)
. . .
(b)
the consideration for any transaction, means the total amount paid or payable by the
consumer to the supplier in terms of that transaction or agreement, including any amount that
the supplier is required to impose, charge or collect in terms of any public regulation.’
In this matter the amount charged by Renault for the vehicle was R176 400.41. The
amount of the refund ordered by the court a quo included the finance charges and
other related charges which were imposed by and payable to, MFC by Ms Wentzel.
Assuming in her favour that the amount paid by MFC to Renault was a payment on
her behalf, if Ms Wentzel had made out a case for the refund she was not entitled to
a refund of an amount greater than R176 400.41.

[47] Section 20 of the Act provides a mechanism for the determination of a refund.
In terms of s 20(5) upon the return of the goods, the supplier must refund to the

consumer the price paid for the goods, less any amount that may be charged in terms
of subsection (6). Subsection (6) provides:
‘In determining the right of a supplier to impose a charge contemplated in s 20(5), if any goods
referred to the supplier are:
(a)
. . .
(b)
in their original condition and repackaged in their original packaging, the supplier may
charge the consumer a reasonable amount for ─
(i)
use of the goods during the time they were in the consumer’s possession, unless they
are goods that are ordinarily consumed or depleted by use, and no such consumption or
depletion has occurred; or
(ii)
any consumption or depletion of the goods, unless that consumption or depletion is
limited to a reasonable amount necessary to determine whether the goods were acceptable
to the consumer; . . .’.

[48] The court a quo in determining the amount to be refunded to Ms Wentzel failed
to consider that Ms Wentzel had used the vehicle for over a period of 18 months and
that Renault, in terms of s 20 would have been entitled to deduct a reasonable amount
for the use of the vehicle during the time it was in her possession. This was a relevant
fact which the court a quo should have considered, but failed to consider. This failure
constituted a material misdirection which, even if a proper case had been out for such
remedy, would have entitled this Court to interfere with the court a quo’s award.10

[49] In conclusion, I am not satisfied that a proper case had been made out by
Ms Wentzel for a remedy under s 56(3)(b) of the Act, having regard to the serious
disputes of fact which arose on the pleadings. Motion proceedings, unless concerned
with interim relief, are all about the resolution of legal issues based on common cause
facts and they cannot be used to resolve factual issues.11 To the extent there was a
dispute regarding the nature of the defects in the vehicle and whether they were
resolved by Renault, such dispute ought to have been resolved in favour of Renault.
For these reasons the appeal must succeed.

10 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Limited and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC) para 88.
11 Op cit, note 6 para 26.

[50] Turning to the issue of costs, the court a quo ordered Renault to pay taxed or
agreed costs on an attorney and client scale. This was a punitive costs order which is
not ordinarily made unless there are special facts giving rise to the litigation, or arising
out of the conduct of the losing party, which would render it just and equitable, and
necessary to ensure that the successful party is not out of pocket. The court a quo
purportedly in the exercise of its discretion to award costs on a punitive scale, took
into account the fact that Ms Wentzel ‘does not have a deep pocket as compared to
the respondents’ and that she ‘must have been highly prejudiced and inconvenienced
in having to seek redress from the respondents’. It imposed the punitive cost order to
‘compel the respondents to ensure that they sell to the public good quality
commodities’. These considerations viewed cumulatively did not, in my view, justify an
award of costs on a punitive scale. This much was conceded by counsel for
Ms Wentzel. The opposition by Renault to the proceedings was not unreasonable. It
was entitled to enter the fray in order to show that it took steps to address the problems
raised by Ms Wentzel in relation to the vehicle.

[51] As regards the costs of appeal, it was submitted by counsel for Renault that in
the event of the Court upholding the appeal, Renault would not seek a costs order
against Ms Wentzel. In the circumstances no order will be made as to costs.

The Order
[52] In the result the following order is made:
The appeal succeeds with no order as to costs.
The order of the high court is set aside and is replaced with the following order:
‘The application is dismissed, with no order as to costs.’

______________
D H Zondi
Judge of Appeal

Appearances:

For appellants:

F W Botes SC (with him S McTurk)
Instructed by:

Rémon Gerber Attorneys Incorporated, Johannesburg

McIntyre van der Post, Bloemfontein

For respondent:

M Coetsee
Instructed by:

Elliot Attorneys, Pretoria

Willie J Botha Incorporated, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
13 April 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Motus Corporation (Pty) Ltd and Another v Wentzel (1272/2019) [2021] ZASCA 40 (13 April
2021)
The Supreme Court of Appeal (SCA) today upheld an appeal brought by Motus Corporation
(Pty) Limited t/a Zambezi Multi Franchise (Renault) SA, against Ms Abigail Wentzel (Ms
Wentzel), the respondent. No order was made as to costs. The SCA accordingly set side the
decision of the Gauteng Division of the High Court, Pretoria (the high court).

The issue for consideration by the SCA was whether Ms Wentzel had made out a case, in
terms of ss 56(2) and (3) of the Consumer Protection Act 68 of 2008 (the Act), for the refund
of the purchase consideration paid to Renault in respect of a Renault Kwid motor vehicle (the
vehicle). The related issues were whether the vehicle had defects; whether such defects were
resolved by Renault; and whether there were any further complaints received by Renault from
Ms Wentzel, subsequent to the repairs that were undertaken by Renault.

On 16 May 2018, Ms Wentzel brought an application in the high court against Renault, the
first appellant, and its parent company, Renault South Africa (Pty) Ltd (Renault SA), the
second appellant. She claimed to be entitled to cancel a credit agreement between herself
and Renault in respect of the vehicle, and to the refund of the purchase price in the amount of
R256 965.84. She tendered the return of the vehicle against the refund of the purchase price.
Ms Wentzel had obtained finance for the vehicle from the Motor Finance Corporation (Pty) Ltd
t/a M.F.C. (MFC), a division of Nedbank, and the latter had settled her indebtedness to
Renault. The MFC provided finance to Ms Wentzel in terms of a credit agreement. The total
purchase price payable to MFC under the credit agreement was R261 924.84, payable in
monthly instalments. The purchase price of the vehicle charged by and paid to Renault was
R176 400.41. The essential basis for Ms Wentzel’s claim was that Renault had, in breach of
ss 49(1)(b), 55(2)(b) and (c), 56(2)(a) an (b) and 56(3) of the Act, sold her a brand new vehicle
that was woefully defective. Renault denied the alleged breaches of the Act and that Ms
Wentzel was entitled to the relief that she sought. Furthermore, Renault argued that Ms
Wentzel had failed to exhaust the internal remedies provided for in s 69 of the Act.

The SCA noted that it was not necessary to address the scope of s 69(d) of the Act, in
particular, the issues regarding whether a consumer ought to exhaust the alternative dispute

resolution mechanisms provided for in the Act, and whether s 69 creates a hierarchy of
remedies. This notwithstanding, the SCA stated, obiter, that the primary guide in interpreting
the section would be s 34 of the Constitution and the guarantee of the right of access to courts.
Thus, s 69(d) should not lightly be read as excluding the right of consumers to approach the
court in order to obtain redress.

Substantively, the SCA held that Ms Wentzel failed to show that the requirements of s 56(3)
were satisfied and that she was entitled to a refund of the purchase price in respect of the
vehicle. This was on the basis that Ms Wentzel’s claim depended on the determination of
issues, in respect of which there existed serious disputes of fact, and those factual disputes
ought to have been resolved by applying the Plascon-Evans Rule. To the extent that there
was a dispute regarding the nature of the defects in the vehicle and whether they were
resolved by Renault, such dispute ought to have been resolved in favour of Renault. On
Renault’s version, which was accepted, all repairs were properly carried out.

Furthermore, the SCA found that even if Ms Wentzel had brought herself within the provisions
of s 56(3), she was not entitled to a refund of the amount stipulated in the order of the high
court, R256 965.84. This was not the amount she had paid to Renault. It was the amount she
had agreed to pay to MFC in terms of the agreement with them. Her claim for the refund, if it
had been successful, was not against the financier but against the supplier of the vehicle. The
SCA found further that, assuming Ms Wentzel had made out a case for the refund, the use of
the vehicle during the time it was in her possession was a relevant factor in determining the
amount to be refunded, in terms of s 20, and for which Renault would have been entitled to
deduct a reasonable amount.

~~~~ends~~~~