Factors beyond a consumer’s control

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Janine Will | Senior Associate | Garlicke & Bousfieldmail me |


“Poor legal writing might result in an injus­tice for a client: a judge might misunder­stand what a lawyer is seeking; an adversary might seize on an ambiguity. To avoid these problems, strive for perfection.”

Judge Dhaya Pillay opened her judgment* with this quote when handing down judgement in a case which dealt with factors beyond the consumer’s control, which had caused non-compliance.

The case was Four Wheel Drive Accessory Distribution CC v Rattan. While Mr. Rattan’s vehicle was undergoing repairs at a motor vehicle dealership, he was provided with a courtesy car by a business which hires out courtesy cars (the Plaintiff).

Rattan did not pay for the courtesy car (presumably by arrangement with the dealership), but when the Plaintiff delivered the courtesy car to Rattan, he signed a one-page agreement, the drafting of which was criticised by the court. Within 48 hours of receiving his courtesy car, and whilst driving the car, Rattan was shot and killed. The car was damaged during the shooting, but subsequently returned to the Plaintiff.

The Plaintiff then sued Rattan’s estate because: Mr. Rattan did not return the car within 72 hours of delivery; and the car was damaged. The agreement did not contain the alleged requirement to return the car within 72 hours of delivery. This was alleged during oral evidence by the man who delivered the car to Rattan, whose oral evidence was criticised by the court.

The court first considered the common law and issues of public policy. In particular, the Constitutional Court judgment in, Barkhuizen v Napier, where it was held that it is ‘inconceivable’ that a court would find against a party if factors beyond its control caused the non-compliance. The High Court held that the agreement was against public policy and therefore invalid; and that the public policy concerns now find expression in the Consumer Protection Act (CPA).

The court raised the issue of whether or not the CPA applied to the agreement signed by Rattan and the Plaintiff contended that it did not as the provision of a courtesy car was not a ‘transaction’ as defined in the CPA in that no consideration was given or received. The Plaintiff also disputed that Rattan was a ‘consumer’ as defined in the CPA.

The court considered the relevant definitions in the CPA and held that the provision of a courtesy car to Rattan constituted the ‘supply’ of ‘services’ and ‘goods’ in exchange ‘for consideration’ (albeit that such consideration was not money payable by Rattan). It also held that Rattan was a ‘consumer’; and that, as the agreement was not a credit agreement, it was a consumer agreement between a supplier and a consumer to which the CPA applies.

The agreement, accordingly, fell short of the requirements of the CPA and the Plaintiff’s claim was dismissed with costs.

*It has recently come to our attention that this judgment is going on appeal.


 

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