“Dear customer, please be advised that if you prove to be difficult, the staff reserve the right to slap you.”
A company could put that notice on their shop wall; still it wouldn’t make it legal for a shop assistant to attack a customer. It would be assault.
But in shops and workshops across the land, there are signs that contravene the Consumer Protection Act.
“No refunds” is probably the most common, followed by words that seek to indemnify the business from damaging the consumer’s property, no matter how that damage arises.
Well, no entity can contract outside the law, so those notices do not deprive a consumer of their rights.
The act also says: “When a supplier has possession of any property belonging to or ordinarily under the control of a consumer, the supplier in the handling, safeguarding and utilisation of that property must exercise the degree of care, diligence and skill that can reasonably be expected of a person responsible for managing any property belonging to another person and is liable to the owner of the property for any loss resulting from a failure to do so.”
In addition, while companies are within their rights to indemnify themselves against certain liabilities, as long as they notify consumers properly, the CPA states unfair exclusion clauses – those that seek to exempt a company from liability for losses caused by gross negligence, for example – will not be upheld.
I receive a fair number of e-mails from people whose cars have been crashed at a dealership while being serviced or repaired, worryingly often while being driven by a staff member who is not authorised to drive customers’ cars, and in some cases does not even possess a driving licence.
In February, Sanjeev Baijnath’s year-old Kia Cerato was booked into Associated Motor Holdings’ uMhlanga multifranchise because of a major power loss issue.
He was later called and told the car had been crashed. On the scene, he was told by staff that a wash bay attendant who didn’t have a driving licence was responsible.
The employee was hurt when she headbutted the windscreen, and the car was fairly extensively damaged.
Dealer principal Len Tolmay said at the time: “We are looking at options, one being replacing his vehicle with a suitable demo. I can assure you we will look after the customer.”
But he consistently failed to answer my questions about how an unlicensed car wash attendant had ended up behind the wheel of Baijnath’s car.
The car has since been repaired at the dealership’s cost.
In the past fortnight, I’ve received two e-mails from readers whose cars have been damaged while in the care of a car dealership and repair workshop respectively. Both are in Pretoria, but the responses from the two companies couldn’t be more different.
Case 1: Sherani Govender was handed a pamphlet in the traffic for Auto Care in Church Street, so when her car, a 2010 Toyota Yaris, needed new brake pads, she took it there on August 23.
Having collected the car, she found her radio was dead. When she reported this to Auto Care, she was told to bring her car in, but it wouldn’t start.
Auto Care collected the car on September 2. It then called Govender to tell her her car had been involved in an accident. The company said an unnamed employee had been driving the car to be “diagnosed” at an undisclosed location.
The company has since denied all liability, refused to report the accident to the police and pointed Govender to a clause in its terms and conditions: “All vehicles are driven and stored entirely at owner’s risk.”
“They say they have no insurance, and neither do I,” she said. “They towed my vehicle away in perfect condition and sent it back a write-off. How is this fair?”
I took up the case with Auto Care. The employee who took my call told me the owner’s name was Charlene Stroebel and gave me an e-mail address including the name “Elmarie”. I was assured it was correct.
I e-mailed her a list of questions on September 14. On Friday, when I called the company, “Charlene” denied having seen the e-mail. She said the e-mail address I’d been given was that of her admin manager, who had not mentioned the case to her.
She then gave me her e-mail address and said she’d get back to me within an hour. This was after stating that she was not liable for the damage to Govender’s car because of the terms of her contract and maintaining that as I was a reporter, not an attorney, she did not have to answer to me.
At the time of writing, no written response had been received.
Govender was wronged, and Auto Care can’t absolve itself of responsibility.
I shall continue to help Govender get justice.
Case 2: Cyril Ntshonga took his Jeep Grand Cherokee to the McCarthy Mercedes-Benz, Chrysler Jeep Dodge dealership in Menlyn last month for extensive mechanical repair.
While parked there, it was crashed into by an employee of the cleaning company subcontracted by the dealership.
The damage, while it doesn’t look good, is cosmetic.
A dispute has since arisen over when that damage should be repaired.
Ntshonga is insisting it be done first, but the dealership argues it should be done after the mechanical repair to avoid further damage. But from the start, the dealership has taken full responsibility.
Franchise chief financial officer Renier Kluever told Consumer Alert: “We have been willing and able to repair the damage caused by the subcontractor by enforcing the agreement we have with our subcontractor.
“We propose that, with Mr Ntshonga’s consent, the vehicle be transported on a flat-bed truck to the appointed approved panel beater to be repaired in terms of Jeep standards, pertaining to the collision damage in our workshop only. And we will provide Mr Ntshonga with a loan vehicle for that cosmetic repair period.”
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What to do
Choose your car repairer wisely. Ensure that you discuss what would happen in the event of your car being damaged or stolen while in their care.
Don’t accept a verbal undertaking; ask to see something in writing. Some consider it a fair response to expect the customer to claim on their insurance, and offer to pay the excess. Be warned.
If your car is damaged and the company refuses to take responsibility, contact the consumer goods and services ombud at www.cgso.org.za or a consumer journalist such as myself.