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CAPE TOWN - Earlier in July 2014, Wheels24 reader ANDRE DU PREEZ wrote in to us and told us about his cloned car dilemma.
Du Preez said: "I bought a Toyota Hilux D4D and drove it for two months and decided to sell it due to my interest in a Ford F250.
"I took the Toyota for an AA test and nothing picked up on the system. The car dealer who had bought it from me also took it for an AA test and registered it on their name. Two months later they phoned me to say it's a cloned car?"
Wheels24 contacted the Automobile Association of South Africa for assistance.
The AA has investigated the matter and had the following say:
The first thing that the AA would like to address, is the issue of purchasing a vehicle over Gumtree. If the seller is selling the vehicle privately and it is not something he does in an official capacity then the vehicle is capable of being sold 'voetstoots', that is, the vehicle is sold as is, which automatically confirms that you, the buyer has a stronger duty of care when purchasing a vehicle.
Your reader mentions that he had friends check the vehicle. In what capacity did his friend from the police check the vehicle as later on in the information provided, it is confirmed that the vehicle is cloned. Therefore what type of check did your reader’s police friend conduct?
SALE AGREEMENT?
When the seller brought the vehicle to Carnival Mall, your reader again indicated that he and a friend inspected the vehicle. What check was conducted as your reader mentions they looked at the chassis number etc?
Your reader also indicated that he took down the details of the seller which included the seller’s identity number. Has your reader tried to contact the seller? Did he enter into a written purchase and sale agreement?
When the vehicle went for a road worthy, did you ask for a copy of the certificate indicating the vehicle corresponds with the information on the eNatis system?
The Automobile Association of South Africa (AA) would also like to know about the other details that your reader’s email contains. The reader makes reference to a bakkie at a local insurance company. Has your reader spoken to the insurance? Has the insurance company deregistered the vehicle? Has he obtained proof regarding this? Did the insurance company write off the vehicle as per the contract or did they take steps to remove it from the eNatis system or did they sell to a salvage company as a code 2 vehicle. There is no legal requirement on the insurance carrier to deregister a vehicle especially when the vehicle is written off for reasons of an economical nature.
The AA has also looked at your reader’s information regarding the sale of the vehicle to him. Did the reader have a purchase and sale agreement in place? Has he contacted the seller of the vehicle in order to query this matter? There is a possibility of charging the seller with fraud alternatively pursuing a claim of fraud against the seller of the vehicle.
ELEMENTS OF FRAUD
The criminal aspect will involve your reader lodging a complaint with the South African police services who will turn assess the validity of the proof, open a docket and investigate the matter.
The Prosecutor will decide whether the elements of fraud have been met and thereafter pursue the matter.
The elements of proving fraud are as follows :
1. An act committed by the person concerned
2. Committed unlawfully
3. With the intention to mislead another person
4. Causes the other person to act differently to what he would have acted, had it been for the fraud
5. In a civil claim, there is a requirement to prove that the claimant has suffered harm / loss as a result of the fraud.
These are the elements that must be proven in order to bring a civil claim against the seller of the vehicle for the damages incurred as a result of the fraudulent activity. Has the reader been advised of this? Does he have sufficient information in order to bring a claim and make a claim of this nature.
ENATIS FLAWS
In addition to the reader’s right to pursue the seller, there are other possible recourses against the respective licence department, the Road Traffic Management Corporation. The licence departments and the Road Traffic Management Corporation are the entities that manage the eNatis system. They are the users of the eNatis system and are responsible for the maintenance, accuracy of the database.
However there are flaws in the process, that is, many articles confirm that the eNatis is a national database however much of the problems stem from the day to day activities of the licencing departments / municipalities who are the front line. When the AA make reference to front line, I mean that these are the departments who see the public / motorists and they attend to the processing of the information which can lead to the diminished value of data integrity due to human error, noncompliance with job function possibly even corrupt activities.
This can lead to cracks in the information or the chain of information. The point of this argument is to show that there is a duty on the users and custodians to ensure that the database is maintained and be accurately kept. If the vehicle is registered on two occasions, that is, registered into the reader’s name and thereafter transferred again into the name of the dealership, it is reasonable to assume that the vehicle is prima facie a legitimate vehicle. All allegations or arguments of this nature requires that this be substantiated by the claimant which essentially means that your reader will need to prove this. The AA are unfortunately not in a position to comment further on this as we do not have the necessary information from your reader.
There are a number of arguments which the AA is sure the reader’s attorney has discussed with him. The above that have been mentioned are recourses available to the reader however South African civil law dictates that he who alleges bears the burden of proving same. This implies that the reader will need to prove every allegation that he has made in order to recover damages for the negligence and the flaws in the process. It is a difficult scenario to comment on as the AA do not have the reader’s case file and the information he has provided is hearsay as we have nothing to rely on to substantiate the claims. It is for this reason I asked a number of questions in the first portion of my response to your reader. The answer to these questions will effectively determine the strengths of pursuing these parties.
UNFORTUNATE SITUATION
I am of the opinion that it would be inappropriate to comment on the matter with the dealership who purchased the vehicle. The reader has an attorney who in turn is litigating on this matter. The AA has not been through the pleadings and therefore is in no position to comment. We would strongly advise the reader to seek clarity on the scope and point of the argument as well as understand the merits of this matter. It is further strongly advisable that your reader makes an effort to understand what his chances are of winning this matter as well as what are the implications if he should lose.
It is extremely unfortunate the situation, your reader finds himself in. It isn’t just one factor that has negatively impacted on him. He has been negatively affected from all facets of this query, namely the lack of a purchase and sale agreement which isn’t a requirement in law but extremely helpful in situation where you need to prove a breach or an act of fraud, the failure of the licence department to pick up a case of fraud especially if the “other” vehicle has been sitting at the insurance company and in a scrapyard.
The greater difficulty stems from the burden of proving the flaws which rest with the reader and how he is going to prove it. Is the reader willing to spend money on taking this matter to court in order to recoup damages?
I have attempted to be succinct in my response to your reader without impeding on the reader’s attorneys processes and thought patterns. I have tried to give an overview to your reader and pray that it has enlightened him on the possible recourses as well as understanding of the flaws and difficulties in his current situation.
Should the reader have more questions, please feel free to contact the AA accordingly via its website.
Wheels24 has tried to contact the relevant local insurance company for comment.
Du Preez said: "I bought a Toyota Hilux D4D and drove it for two months and decided to sell it due to my interest in a Ford F250.
"I took the Toyota for an AA test and nothing picked up on the system. The car dealer who had bought it from me also took it for an AA test and registered it on their name. Two months later they phoned me to say it's a cloned car?"
Wheels24 contacted the Automobile Association of South Africa for assistance.
The AA has investigated the matter and had the following say:
The first thing that the AA would like to address, is the issue of purchasing a vehicle over Gumtree. If the seller is selling the vehicle privately and it is not something he does in an official capacity then the vehicle is capable of being sold 'voetstoots', that is, the vehicle is sold as is, which automatically confirms that you, the buyer has a stronger duty of care when purchasing a vehicle.
Your reader mentions that he had friends check the vehicle. In what capacity did his friend from the police check the vehicle as later on in the information provided, it is confirmed that the vehicle is cloned. Therefore what type of check did your reader’s police friend conduct?
SALE AGREEMENT?
When the seller brought the vehicle to Carnival Mall, your reader again indicated that he and a friend inspected the vehicle. What check was conducted as your reader mentions they looked at the chassis number etc?
Your reader also indicated that he took down the details of the seller which included the seller’s identity number. Has your reader tried to contact the seller? Did he enter into a written purchase and sale agreement?
When the vehicle went for a road worthy, did you ask for a copy of the certificate indicating the vehicle corresponds with the information on the eNatis system?
The Automobile Association of South Africa (AA) would also like to know about the other details that your reader’s email contains. The reader makes reference to a bakkie at a local insurance company. Has your reader spoken to the insurance? Has the insurance company deregistered the vehicle? Has he obtained proof regarding this? Did the insurance company write off the vehicle as per the contract or did they take steps to remove it from the eNatis system or did they sell to a salvage company as a code 2 vehicle. There is no legal requirement on the insurance carrier to deregister a vehicle especially when the vehicle is written off for reasons of an economical nature.
The AA has also looked at your reader’s information regarding the sale of the vehicle to him. Did the reader have a purchase and sale agreement in place? Has he contacted the seller of the vehicle in order to query this matter? There is a possibility of charging the seller with fraud alternatively pursuing a claim of fraud against the seller of the vehicle.
ELEMENTS OF FRAUD
The criminal aspect will involve your reader lodging a complaint with the South African police services who will turn assess the validity of the proof, open a docket and investigate the matter.
The Prosecutor will decide whether the elements of fraud have been met and thereafter pursue the matter.
The elements of proving fraud are as follows :
1. An act committed by the person concerned
2. Committed unlawfully
3. With the intention to mislead another person
4. Causes the other person to act differently to what he would have acted, had it been for the fraud
5. In a civil claim, there is a requirement to prove that the claimant has suffered harm / loss as a result of the fraud.
These are the elements that must be proven in order to bring a civil claim against the seller of the vehicle for the damages incurred as a result of the fraudulent activity. Has the reader been advised of this? Does he have sufficient information in order to bring a claim and make a claim of this nature.
ENATIS FLAWS
In addition to the reader’s right to pursue the seller, there are other possible recourses against the respective licence department, the Road Traffic Management Corporation. The licence departments and the Road Traffic Management Corporation are the entities that manage the eNatis system. They are the users of the eNatis system and are responsible for the maintenance, accuracy of the database.
However there are flaws in the process, that is, many articles confirm that the eNatis is a national database however much of the problems stem from the day to day activities of the licencing departments / municipalities who are the front line. When the AA make reference to front line, I mean that these are the departments who see the public / motorists and they attend to the processing of the information which can lead to the diminished value of data integrity due to human error, noncompliance with job function possibly even corrupt activities.
This can lead to cracks in the information or the chain of information. The point of this argument is to show that there is a duty on the users and custodians to ensure that the database is maintained and be accurately kept. If the vehicle is registered on two occasions, that is, registered into the reader’s name and thereafter transferred again into the name of the dealership, it is reasonable to assume that the vehicle is prima facie a legitimate vehicle. All allegations or arguments of this nature requires that this be substantiated by the claimant which essentially means that your reader will need to prove this. The AA are unfortunately not in a position to comment further on this as we do not have the necessary information from your reader.
There are a number of arguments which the AA is sure the reader’s attorney has discussed with him. The above that have been mentioned are recourses available to the reader however South African civil law dictates that he who alleges bears the burden of proving same. This implies that the reader will need to prove every allegation that he has made in order to recover damages for the negligence and the flaws in the process. It is a difficult scenario to comment on as the AA do not have the reader’s case file and the information he has provided is hearsay as we have nothing to rely on to substantiate the claims. It is for this reason I asked a number of questions in the first portion of my response to your reader. The answer to these questions will effectively determine the strengths of pursuing these parties.
UNFORTUNATE SITUATION
I am of the opinion that it would be inappropriate to comment on the matter with the dealership who purchased the vehicle. The reader has an attorney who in turn is litigating on this matter. The AA has not been through the pleadings and therefore is in no position to comment. We would strongly advise the reader to seek clarity on the scope and point of the argument as well as understand the merits of this matter. It is further strongly advisable that your reader makes an effort to understand what his chances are of winning this matter as well as what are the implications if he should lose.
It is extremely unfortunate the situation, your reader finds himself in. It isn’t just one factor that has negatively impacted on him. He has been negatively affected from all facets of this query, namely the lack of a purchase and sale agreement which isn’t a requirement in law but extremely helpful in situation where you need to prove a breach or an act of fraud, the failure of the licence department to pick up a case of fraud especially if the “other” vehicle has been sitting at the insurance company and in a scrapyard.
The greater difficulty stems from the burden of proving the flaws which rest with the reader and how he is going to prove it. Is the reader willing to spend money on taking this matter to court in order to recoup damages?
I have attempted to be succinct in my response to your reader without impeding on the reader’s attorneys processes and thought patterns. I have tried to give an overview to your reader and pray that it has enlightened him on the possible recourses as well as understanding of the flaws and difficulties in his current situation.
Should the reader have more questions, please feel free to contact the AA accordingly via its website.
Wheels24 has tried to contact the relevant local insurance company for comment.
