A SAPS pound for stolen cars that have been recovered. Picture: TEBOGO LETSIE
A SAPS pound for stolen cars that have been recovered. Picture: TEBOGO LETSIE

"Does your bakkie have a tracker in it?" 

That question, posed by the sales manager of a Pretoria dealership late in the afternoon of August 24, was the first inkling Thabiso Motsoahole had that something had gone terribly wrong while his Ford Ranger double-cab bakkie was in for repairs.

He'd bought the bakkie two weeks earlier from Centurion Select, but it developed a "rough noise" in the engine the following day. The dealership's salesman said it would go away.

Motsoahole, who qualified as a motor mechanic and is employed in fleet maintenance in Bothaville, Free State, took the bakkie to a Ford dealership in Klerksdorp for a second opinion.

That dealership wanted payment of more than R3000 to investigate the noise. Centurion Select - being responsible in terms of the Consumer Protection Act for repairing any defect in the vehicle within six months of purchase - then asked that he return the vehicle to it, in order for its "preferred" Ford dealership to do the necessary repair.

And that's how the Ranger came to be at CMH Kempster Ford Pretoria on August 24.

Motsoahole was given a tiny budget hatchback as a courtesy car, and told his bakkie would be fixed within two days.

Then came that call from the Centurion Select sales manager.

"I was told a technician had left the keys in the ignition and a thief had driven off in it," Motsoahole said.

The sales manager told him to claim the loss from his insurance and said he would help him get another bakkie.

Took no responsibility

Motsoahole lodged a theft claim with his insurer, King Price, but it was rejected on the grounds that he had failed to have a tracking device fitted to the vehicle, which was a condition of cover.

Motsoahole had been advised when he took out the policy that if he did not install the tracker he would not enjoy theft and hijacking cover.

Failure to install a tracking device is one of the top reasons for motor claims being rejected, according to the office of the ombudsman for short-term insurance.

After being told the claim had been rejected, neither Centurion Select nor CMH Kempster Ford Pretoria took any responsibility for the theft of the bakkie, Motsoahole said.

"The courtesy car was taken back within a week and I am left paying the bank R6200 a month for a vehicle stolen from a dealership. And I'm paying R2900 a month to rent a Polo Vivo from a former colleague as transport," Motsoahole said.

Theft or damage to vehicles left in the care of dealerships is not an uncommon occurrence. In previous cases, a wash-bay worker without a driver's licence decided to move a customer's car, lost control and slammed it into two walls, front and back; a mechanic smashed a customer's car on a test drive; and a dealership's driver pressed the accelerator instead of the brake while driving a customer's car down a ramp, slamming into two other customers' cars.

In some cases, the dealerships take full responsibility for the loss or damage, but many simply instruct the customer to claim from their insurance, some offering to pay their excess amount.

'I am not really interested'

The Consumer Protection Act places a heavy responsibility on companies to take special care of their customers' property while it is in their possession.

The act requires them to "exercise the degree of care, diligence and skill that can be reasonably expected of a person responsible for managing any property belonging to another person", and makes them liable to the owner of the property for any loss resulting from a failure to do so.

Asked to comment on this responsibility, Tewie Wessels, dealer principal at Kempster Ford Pretoria, said that "proper care was taken with the vehicle" while in its possession.

"Quoting statutes seems to indicate to me that you wish to start either a legal argument, or one based on your perception of fairness, or perhaps both," Wessels said.

"This all to be shared with the public within the framework of what you believe to be the right manner. I am not really interested in that and you are probably not really qualified to do that," Wessels said.

He failed to confirm or deny whether the keys had been left in the bakkie's ignition at the time of the theft.

Consumer law attorney Trudie Broekmann said that in her experience, auto service providers seem to regard themselves as somehow being above the law.

"If the technician left the consumer's car key in the ignition, it is clear that he was acting negligently; in other words, he could have expected the car to be stolen, and he didn't take reasonable steps to prevent the theft by, for example, locking away the key.

"As this negligence took place 'in the course and scope of' his work at Kempster Ford Pretoria, the dealership is liable for the consumer's loss."

Case for negligence

Broekmann said the dealership must pay Motsoahole the current value of the car, any legal costs he may have incurred to obtain payment from it, and interest if it cannot pay immediately.

"The dealership may have some disclaimer of liability, such as a notice or contractual term which states that the cars are left on their premises at the customer's risk.

"This term will only be enforceable if it meets a raft of CPA requirements, for example that it is fair, reasonable and just towards the customer - which is unlikely - and that the consumer would have expected it, that it was drafted in plain language and was specifically drawn to the attention of the customers before they contracted with the dealership, and that the customer assented to it."

Magauta Mphahlele, acting ombudsman for consumer goods and services, said the dealer principal had failed to outline how "proper care" was taken while the vehicle was in its possession.

Mphahlele is also of the view that if the keys were left in the ignition there is a case to be made for negligence, and despite any disclaimer the dealer has, the CPA is clear on the duty of care.

She said Motsoahole can approach the National Consumer Commission or the motor industry ombudsman for assistance.

Johan van Vreden, the motor industry ombudsman, said his office had over the years had to deal with many such cases and its rulings and recommendations were in line with Mphahlele's views.

Motsoahole intends to take his case to the ombudsman.

Wessels said he would advise Motsoahole of "the official avenues available to him" and the dealership would "insist that this matter is handled in a fair and just manner".

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