The Motor Industry Ombudsman of South Africa v Silver Park Motors CC t/a Silverton Motors

The Motor Industry Ombudsman of South Africa (appellant) is the accredited ombud for the South African automotive industry under the Consumer Protection Act 68 of 2008 and the South African Automotive Industry Code of Conduct. On 30 November 2015, the appellant's official inspected the premises of Silver Park Motors CC (first respondent), which conducted a fuel retail business. The official enquired why the first respondent had not registered as a retailer under the Act and the Code. The first respondent stated it would not register because it did not form part of the motor industry envisaged in the Code. The first respondent sold Shell fuel and Shell Helix car engine oils (containing additives purportedly cleaning, repairing and protecting vehicle engines), Wynn's products, and other convenience items from a shop on its premises. The appellant sought a declaratory order that the first respondent was a retailer under the Act and thus liable to pay contributions to finance the appellant's activities. The first respondent opposed, denying that the fuel and lubricants it sold were motor vehicle 'accessories' within the definition of 'Automotive Industry' in the Code.

• Whether the first respondent was a retailer or supplier of 'accessories' as defined in the South African Automotive Industry Code of Conduct
• Whether fuel, Shell Helix car engine oils and Wynn's products constitute 'accessories' to motor vehicles within the ordinary meaning of that term in the Code
• Whether the first respondent renders a 'related repair or replacement service' to consumers in respect of vehicles as contemplated in the definition of 'Automotive Industry'
• The proper approach to statutory interpretation in the context of industry codes under the Consumer Protection Act

The appeal was dismissed with costs.

The binding legal principle established is that 'accessories' in the definition of 'Automotive Industry' in the South African Automotive Industry Code of Conduct means additional, subordinate things; accompaniments; and minor fittings or attachments to vehicles (such as tow bars, sun shades, mud flaps, boot spoilers, and mats), and does not include fuel (petrol and diesel), engine oils, or fuel additives. The term 'accessories' must be distinguished from 'completed components' which are essential or integral to a vehicle's functioning. A fuel retailer that sells fuel and lubricants is not a retailer or supplier of 'accessories' within the meaning of the Code and is therefore not required to register with or contribute to the Motor Industry Ombudsman. Such retailers fall within the Consumer Goods and Services Industry Code of Conduct. The sale of fuel to consumers does not constitute a 'repair or replacement service' in respect of vehicles as contemplated in the Code.

The court made several non-binding observations. It noted that it is inconceivable how fuel stored in underground storage tanks at a fuel retailer's premises (which is clearly not an accessory to a vehicle) could be transformed into an accessory when pumped into a vehicle's tank. The court also observed that the interpretation of 'accessories' is consistent with the purposes of the Consumer Protection Act and the Code, which are to regulate relations between persons conducting business within the automotive industry and to provide for alternative dispute resolution. The court referenced several foreign cases interpreting 'accessory' in customs duty classification contexts, noting these were of limited assistance but supported the ordinary meaning that fuel is not naturally described as an accessory to a vehicle. The court conceded that the principle from property law regarding accession (where an accessory loses its separate identity and becomes part of the principal thing) had no application to the case, which was one of statutory construction.

This case is significant for South African consumer protection law and statutory interpretation. It clarifies the scope of the South African Automotive Industry Code of Conduct by defining what constitutes 'accessories' to motor vehicles for purposes of determining who falls within the definition of 'Automotive Industry' and must register with and contribute to the Motor Industry Ombudsman. The judgment establishes that fuel retailers who sell petrol, diesel, and engine oils are not part of the automotive industry as defined in the Code, but rather fall under the Consumer Goods and Services Industry Code of Conduct. The case demonstrates the importance of applying principles of statutory interpretation, including consideration of ordinary meaning, context, and legislative purpose, when interpreting industry codes prescribed under the Consumer Protection Act. It also confirms that consumers are protected by overlapping but distinct industry codes depending on the nature of goods and services supplied.