When Sifiso* took his scooter in for repairs, he never thought he’d have problems. The mechanic has had it for months now and is ignoring Sifiso’s calls. What can he do? Scorpion Legal Protection explains what legal action you could take against a shady mechanic like this.
There are two options here:
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Institute an action called Rei vindicatio. This is a legal action where you demand that someone return something that belongs to you. You must be the owner of the object, the object must still exist and be identifiable (because you are asking for it to be returned), and you must prove that the other person is in unlawful control or possession of that thing, in other words, you must be sure that this person does not have any lawful right to be in possession of the object. This can get complicated if, for example, the mechanic enforces his right of lien over the scooter. This means that the mechanic has the right to keep the scooter until the full amount of what is owed to him for fixing it (as agreed to when the scooter was first handed in for repairs) is paid up.
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Claim breach of contract, as there was an agreement (contract) that was entered into between the mechanic and Sifiso, and rely on the remedies that fall under the law of contract.
In Sifiso’s case, the mechanic is not actually in unlawful possession of the scooter since they entered into a contractual agreement for the mechanic to fix the scooter. This means he must look to breach of contract first. If he does this and still the mechanic does not return the scooter to him, then the mechanic will be in unlawful possession of the scooter and Sifiso can use the Rei vindicatio action to get back his scooter.
Breach of contract
Sifiso and the mechanic have an agreement (contract) with regard to fixing the scooter. Sifiso can:
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Claim specific performance – You have the right to request that the mechanic render the services as agreed and repair the scooter timeously. If there are any delays, they must be reasonably unavoidable; or
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Cancellation and restitution – You have the right to cancel the agreement as a result of the breach of contract committed by the mechanic’s failure to fix the scooter, and you can claim to be restored to the same position you were in before the contract was entered into, claim the money already paid and also for the scooter to be given back to you; or
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Claim for compensation – You have the right to claim compensation as a result of or any loss or damage suffered due of the breach committed. I.e. if you did not have transport for a longer period than agreed with the mechanic and, as a result, you had to hire another scooter to perform your deliveries, you need to calculate the money that you lost because of the mechanic’s negligence and claim this.
If the mechanic refuses to accept cancellation of the contract and give back the scooter without any lawful reason of still keeping possession, Sifiso can use the Rei vindicatio remedy to claim restoration of the scooter.
Is there a reasonable amount of time in which repairs need to be done?
In terms of section 54(1) of the Consumer Protection Act, Sifiso has the right to demand quality service, timely performance and completion of those services, and timely notice of any unavoidable delays in the performance of the services. What would be a reasonable period would depend on what Sifiso and the mechanic agreed on – this would form part of the agreement.
The Motor Industry Ombudsman of South Africa (MIOSA)
In Sifiso’s case, if work has been done on the scooter and he is not happy with the quality of work or there are still mechanical issues that he wants the mechanic to fix, MIOSA will have jurisdiction to assist with the resolution of the dispute. MIOSA focuses on resolving disputes between the automotive industry and its customers, but not all disputes can be taken to them. MIOSA will not assist if the complaint is a claim for damages, if legal action has already been taken or if it looks like a criminal offence has been committed by either party.
*Names and identifying details have been changed to protect the privacy of individuals.
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).
* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.