Your rights if your car is stolen from a workshop

Consumers must watch out for workshops violating their rights when their cars are stolen from workshops where they leave them for repairs or service, because despite what workshop owners would like you to believe, it is usually not your problem to solve.

A consumer recently shared his fight to have his car replaced after it was stolen at a workshop on Twitter. He took his car to a dealership for a service in February and when he returned later in the day to collect it, it was not ready.

He agreed to leave the car overnight and collect it in the morning, but when he arrived at the dealership the next day, nobody could find the keys. The dealership then checked its security cameras and only then discovered that the car was driven out of its lot at around 17:00 the day before.

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The consumer contacted his tracking company, only to hear that the tracking device was disabled. According to the guard at the exit, the person who drove out with the car did not have a driver’s license to scan and the guard then took a picture of the man before letting him leave.

The dealership said it was not liable for the car and told him to open a case at the police station, before claiming from his insurance. However, the police said the dealership had to report the theft, but the dealership refused.

Head office also says stolen car is not their problem

When the consumer complained to the head office, he received a letter to inform him that when he booked his vehicle with the dealership for a battery check and replacement, the dealership concluded an agreement with him with a clause that specially states that the risk of damage or loss of the goods will remain his risk at all times and the dealership will only be responsible for any direct losses or damages, directly or indirectly attributable to its gross negligence.

The letter also stated that there was no gross negligence on the part of the dealership, its employees or its service providers and the theft of the vehicle cannot be attributed to their actions.

Therefore, the dealership believes that it is not liable to compensate him for the loss and/or damage he suffered and he is told to lodge a claim with his insurance company.

As a gesture of goodwill, the dealership offered to pay the excess levied by his insurance. The consumer asked a lawyer to help, but before he could institute legal action, the dealership contacted him and offered to replace his vehicle.

It could have been in this consumer’s favour that he shared his experience on social media, but he had his consumer rights in terms of the Consumer Protection Act (CPA) to fall back on in any way.

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What the CPA says about a car stolen at a workshop

According to section 65 of the CPA, the workshop had to exercise the degree of care, diligence and skill that can reasonably be expected of someone responsible for managing any property belonging to someone else.

The workshop is not allowed to treat it as its own property and is liable to the owner for any loss resulting from a failure to look after it.

However, most workshops have the attitude that it is simply not their problem.

They tend to rely on disclaimers displayed on their premises that cars are left at the consumer’s risk despite section 65 making it very clear that the dealership must take reasonable due care in handling the car and ensuring its safety.

Workshops often offer to pay your excess as a gesture of goodwill, but this is not good enough. They must replace your car.

In this consumer’s case, it is especially clear that the dealership was negligent. The person driving the car out did not have a driver’s licence to scan and the guard just took a picture of him. This constitutes gross negligence.

In a case like this, the dealership must pay the consumer the current value of the car as well as interest if it does not pay immediately. If you have to pay a lawyer to help your case, you can also claim the legal costs from the dealership or workshop.

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These terms are not allowed to transfer the risk to you

Dealerships cannot use disclaimers such as a notice or contractual term that vehicles left with them are left there at your risk, because this does not adhere to section 65, while the CPA expressly forbids companies in section 51 to use terms or conditions with the general purpose to:

• defeat the purposes and policy of the CPA
• directly or indirectly purports to waive or deprive a consumer of a right in terms of the CPA
• avoid a company’s obligation in terms of the CPA
• set aside or override any provisions of the CPA
• authorise the company to do anything required by the CPA
• limit or exempt a company from liability for any loss directly or indirectly attributable to the gross negligence f the supplier or anyone acting on his behalf.