What Do You Do If Your New Car Is Lemon

Buying a new car should be thrilling. After having done the research, settling on a make and model and getting the finance and paperwork in order, you finally take delivery of your new baby – fresh off the factory floor, a shiny, flawless tabula rasa (blank slate) as it were.

But what if that “new” car is a lemon?

For Pricilla Black, the purchase of her Polo Vivo turned out to be disastrous. Not because it’s a Volkswagen, but because “new” in her case materialised into “kinda new, slightly damaged”.

About two weeks after driving the Polo Vivo off the McCarthy VW Constantia showroom floor in May last year, Black noticed what appeared to be scratches and hairs under the paintwork of her boot and spoiler.

How – and when – to buy that new car

Realising work must have been done on the car because automotive spraying takes place under highly regulated industrial conditions, she complained to the dealership and wanted to cancel the deal because she now felt exposed: she had no idea what had happened to the car before she bought it.

The after-sales manager fobbed off concerns, saying: “The factory uses paint and paintbrushes to do touch-ups, which is how the hair got stuck underneath the paint on the hinge in (her) boot.”

But she complained to the dealer principal. After various dealership assessments were made of the damage, she was told: “(The panel shop) have given an independent confirmation that there is no accident damage or alignment issues… At this point and after four different assessments, it is safe to say that the vehicle is a great example of a new Polo Vivo.

“As McCarthy Volkswagen, we respect our customers’ requests and concerns and I believe that we have gone to great lengths to provide the assurance that this vehicle is free from defects.

“I acknowledge the fact that the spots on the boot rubber and shock as well as the polish marks on the black lower are still a concern for you. I am confident that we can resolve these concerns thereby restoring your faith in your vehicle.”


However, the Automobile Association independently reported that there was clear repair work on the car so she approached the Motoring Ombudsman’s office.

But when she finally managed to set up an appointment with an inspector, Black alleges he chatted privately “at length” to the manager and ended up finding in favour of the dealership.

When she complained about this – in light of the fact she paid a quite handsome R1500 for this service too – she needed to set up a second inspection, which again needed to be paid for.

Volkswagen South Africa then commissioned BASF Coatings Services to carry out an independent assessment in which they tested paint thickness and other issues.

BASF concluded work had indeed been done on her “new” car.

And while it’s not “material” damage – visible marks, paint work, a boot adjustment, repairs to the bumper, white masking tape residue – Black was led to believe she had bought a new car and had every expectation to receive such.

The ombudsman’s office, however, ruled that the damage was repairable and the cost of “restoring the vehicle back to manufacturer specifications” should be covered by the dealership.


In a letter dated March 19, the office wrote to her saying it considered the matter closed but that she was free to approach the National Consumer Commission (NCC) should she wish to pursue the case.

Black is still not satisfied: “Why should I settle for a repair job on something that was sold as new?

“Why restore it ‘back’ to what it should have been in the first place?”

And she’s rightly incensed: not only was the car sold to her as new when work was obviously done on it, but now she was told to acquiesce and allow the dealership even more time to correct the issue.

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Happily, it’s not the end of the road.

The NCC’s spokesman, Trevor Hattingh, told me this is clearly a case that calls for referral to the National Consumer Tribunal, which is the ultimate voice on consumer issues.


Hattingh observed that while the ombuds’ offices are alternate dispute resolution (ADR) agencies or mediators – about which I wrote a few weeks ago – if consumers are not happy with their findings they can and should approach the commission instead of going the legal route.

“I get very worried when I hear people want to go to lawyers to resolve their issues. People are under financial strain and cars cost a lot of money. Not everyone is in the position to go legal, which is why the dti (Department of Trade and Industry) has set up these dispute agencies.

“A consumer who is not satisfied with the outcomes of processes undertaken by an ADR agent to resolve a complaint can approach the NCC which will conduct an independent investigation into the complaint.

“The investigation is, however, not a review of the ADR agent’s recommendations, but rather a process to establish if there was a contravention of the CPA (Consumer Protection Act).

“The commissioner normally allocates three months for such an investigation to be concluded, but it must be understood that the case merits and complexity can result in the investigation taking longer to complete.”

“Ombuds institutions are accredited by the Minister of Trade and Industry, subject to recommendation from the NCC.

“A consumer who wishes to lodge a complaint against any ADR agent can approach the NCC.


“It must be understood that it is the industry code that establishes the ombud scheme. The NCC consults with a particular industry and drafts a code of conduct in consultation with it.

“The industry then sets up an ombud scheme and the NCC recommends to the minister that the scheme be recognised as an ADR in terms of the CPA.

“The minister then grants accreditation to the scheme and it is then authorised to perform ADR duties in line with the CPA.”

If you’re unhappy with the service you’re getting from any ADR, take the matter further. Black and her brother, Quintin Herbst, pursued this seemingly simple case for close on a year – not only because of the value of the car, but because they firmly believed they were correct.

As the ombud decided to close the case, she will now decide whether to approach the NCC for a referral or go to her lawyer.

Ironically, her licence plate begins with “NU”.


Motoring Ombudsman Johan van Vreden, the longest-serving ombud in the country, believes his job is also the most difficult “because we deal in high-value assets”, as he told a dti conference in February. He claims to rule in the dealerships’ favour between 45 – 55 percent of the time (although it is difficult to verify this independently).

Who funds the ombud? All dealerships in South Africa have to pay annual fees towards his office, but it still asserts it is independent. “The automotive industry has no say in the running of the organisation, nor do they have any influence in the rulings made by MIOSA (Motor Industry Ombudsman of South Africa).”

What does it do? On its website, the MIOSA claims to be a “totally independent institution that focuses on the resolution of disputes where a deadlock has been reached between the motor and related industries and their customers”.

“The MIOSA therefore strives to contribute to the continuous improvement of customer care in the motor industry to the benefit of all parties concerned”.

Any costs to the consumer? The MIOSA’s services are free, but if you need a vehicle inspection you pay for it.

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