Automated Summary
Key Facts
The Applicants, David Lazarus and Hazel Sarkin, contracted RDB Project Management CC t/a Solid to install kitchen countertops in May 2012. A defect occurred in October 2012 when a crack developed in the countertop after a heated electrical hot tray was placed on it for two hours. The 1st Respondent (Solid) claimed the slabs were heat-resistant but denied the Applicants were informed of this limitation. The Tribunal found the countertop defective under the Consumer Protection Act (CPA), ruling the Applicants were not unreasonable in their use. The 2nd Respondent (Vicostone) did not appear at the hearing. The Tribunal ordered a refund of R18 424.00 for the defective goods, noting the case was referred to the Tribunal in 2016 after prescription was interrupted by prior complaints.
Issues
- The Tribunal addressed the applicability of Section 116 of the CPA regarding the three-year prescription period. The Applicant's claim arose in 2012 but was referred to the Tribunal in 2016. The Tribunal found the prescription was interrupted by the Applicant's prior complaints to the Western Cape Consumer Protector's office, extending the deadline to September 2016.
- The Tribunal determined whether the stone kitchen counter supplied by the 1st Respondent was defective under Section 53 of the CPA, as it cracked after a hot tray was left on it for two hours. The Applicant argued the counter should have withstood normal use, while the Respondent claimed the Applicant misused the product by not accounting for its heat resistance limitations.
Holdings
- The 2nd Respondent (Vicostone) was not held liable due to their failure to appear or submit evidence, though the Applicant did not request a default order against them.
- The appropriate relief was determined to be a refund of R18,424.00 (including VAT) for the defective kitchen counters and breakfast bar, as replacement would have caused disputes over color matching and installation quality.
- The Tribunal concluded that the stone counter was defective under Section 53(a) of the CPA, as it was less acceptable, useful, and safe than a reasonable consumer would expect. The Applicant's use of the hot tray was deemed reasonable, and the defect was established regardless of whether the Applicant was informed of the counter's heat resistance limitations.
- The Tribunal found that the three-year prescription period under Section 116 of the CPA was interrupted by the Applicant's complaint to the Western Cape Consumer Protector's office, extending the deadline to September 2016.
- The Applicant's application for leave to refer the matter directly to the Tribunal was granted under Section 75(1)(b) of the CPA, as the matter was of substantial importance and the Applicant demonstrated reasonable prospects of success.
Remedies
- The Tribunal regards the amount of R18,424.00 as appropriate and reasonable. The 1st Respondent is to pay this amount to the Applicant within 30 business days of the date of this order.
- There is no order as to costs.
Monetary Damages
18424.00
Legal Principles
- The Tribunal interpreted the Consumer Protection Act using a purposive approach, favoring the meaning that best promotes consumer rights, as outlined in Section 4(2)(b) of the CPA.
- The Tribunal applied the implied warranty of quality under Section 56 of the CPA, determining that the Applicant was entitled to a refund for the defective countertop supplied by the 1st Respondent.
- The Tribunal used a balance of probabilities as the standard of proof to assess whether the Applicant was unreasonable in causing the defect, concluding that they were not at fault.
Precedent Name
Coertze and Burger v Young
Cited Statute
- Consumer Protection Act 68 of 2008
- Prescription Act 68 of 1969
- Standards Act 29 of 1993
Judge Name
- Ms D Terblanche
- Adv J Simpson
- Ms H Devraj
Passage Text
- The facts placed before the Tribunal show that the counters were manufactured from a form of stone measuring 20 millimetres in thickness. Counters of this nature would therefore, at the very least, appear to be very strong and durable. Any consumer with minimal experience with stone kitchen counters would reasonably expect that the counters could easily resist any normal kitchen appliance being placed on them. In this regard it can be noted that an electrical hot tray would not be an unusual appliance for a kitchen. The tray is not in direct contact with the stone and the reasonable consumer would not predict that leaving it in the "on" position, even for a period of two hours, would cause the stone to crack.
- The only reasonable conclusion the Tribunal can draw from the evidence presented, which is consistent with the given facts, is that the stone counter was defective. At the very least, the counter did not exhibit the usefulness and practicality that a reasonable consumer would expect.
- The Applicant therefore has recourse under Section 56 of the CPA. The Tribunal therefore finds that a refund of the price paid for the goods is more appropriate. The Tribunal regards the amount of R18 424.00 as appropriate and reasonable.