THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 479/2018

In the matter between:

THE MOTOR INDUSTRY OMBUDSMAN
OF SOUTH AFRICA

APPELLANT

and

SILVER PARK MOTORS CC
T/A SILVERTON MOTORS

FIRST RESPONDENT
THE MINISTER OF THE
DEPARTMENT OF TRADE
AND INDUSTRY

SECOND RESPONDENT

Neutral citation: The Motor Industry Ombudsman of South Africa v Silver Park
Motors CC (479/18) [2019] ZASCA 71 (30 May 2019)

Coram:
Maya P, Cachalia, Molemela and Schippers JJA, and Gorven AJA

Heard:
17 May 2019

Delivered: 30 May 2019

Summary: Registration as retailer under Consumer Protection Act 68 of 2008 –
meaning of ‘accessories’ in South African Automotive Industry Code of Conduct
(the Code) – seller of fuel and engine oils not a supplier or retailer of accessories
under the Code.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Avvakoumides
AJ sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Schippers JA (Maya P, Cachalia and Molemela JJA and Gorven AJA
concurring):

[1] The appellant is the ombud for the South African automotive industry,
accredited in terms of s 82 of the Consumer Protection Act 68 of 2008 (the Act),
and the South African Automotive Industry Code of Conduct1 (the Code)
prescribed by the second respondent, the Minister of Trade and Industry (the
Minister), under the Act. The appellant is the independent dispute resolution
forum for the automotive industry, its suppliers and customers. It is funded by
contributions from participants in the industry, calculated in terms of the Code.2

[2] On 30 November 2015 an official of the appellant inspected the premises
of the first respondent from which it conducts a fuel retailer’s business, and
enquired of its member, Mr Ronald Dennis, why it had not registered as a retailer
under the Act and the Code. The official was told that the first respondent would

1 ‘Consumer Protection Act, 2008: Prescription Of The South African Automotive Industry Code And
Accreditation Of The Alternative Dispute Resolution Scheme Administered By The Motor Industry Ombud Of
South Africa As An Accredited Industry Ombud GN R817, GG 38107, 17 October 2014.’
2 Clause 13.2 of the Code provides that the appellant ‘is funded by the Automotive Industry in the manner as set
out in Schedule 5.’

not register with the appellant because it does not form part of the motor industry
envisaged in the Code.

[3] Consequently, on 19 April 2016 the appellant applied to the Gauteng
Division of the High Court, Pretoria, for a declaratory order that the first
respondent was a retailer as defined in the Act and thus liable for a contribution
to finance the appellant’s activities in giving effect to the Code. The grounds for
the application were that first respondent was a retailer or supplier of accessories
of vehicles as envisaged in the definition of ‘Automotive Industry’ in the Code,
because it conducted business as a fuel retailer. It sold Shell fuel and Shell Helix
car engine oils containing additives which supposedly cleaned, repaired and
protected vehicle engines, Wynn’s products and other types of accessories for
motor vehicles, from a shop on its premises. These included ‘accessories’ that
were put into the fuel tank of a motor vehicle or used in conjunction with the
vehicle.

[4] The first respondent opposed the application. It did not dispute that it was
a retailer of Shell fuel and lubricants and Wynn’s products; and that ancillary to
its main business as a fuel retailer, it sold general convenience items, magazines,
sweets and fresh produce from the shop on its premises. However, it denied that
the fuel and lubricants it sold were motor vehicle accessories within the ordinary
meaning of that term; that it was a retailer or supplier of ‘accessories’ as
envisaged in the definition of ‘Automotive Industry’; and that it sold ‘other types
of motor vehicle accessories’ (not described at all in the founding affidavit).

[5] The first respondent contended that the appellant was not entitled to the
contributions claimed as these had not been determined in accordance with the
Code. It brought a counter-application in which it sought an order joining the
Minister as the second respondent, and in the event that it fell within the definition

of ‘Automotive Industry’, that the provisions of the Code requiring retailers to
pay mandatory contributions to the appellant be reviewed and set aside on the
ground that they were ultra vires the Act. The joinder application was granted
and the Minister opposed the counter-application.

[6] The central issue before the court a quo was whether the first respondent
was a retailer or supplier of accessories as envisaged in the definition of
‘Automotive Industry’ in clause 2.3 of the Code (the definition). A related issue
was whether it ‘renders a related repair or replacement service to consumers in
respect of such vehicles’, because the fuel and additives it sold purportedly
enhanced the functioning of vehicles. The definition reads:
‘ “Automotive Industry” means importers, distributors, manufacturers, retailers, franchisors,
franchisees, suppliers and intermediaries who import, distribute, produce, retail or supply
passenger, recreational, agricultural, industrial, or commercial vehicles, including but not
limited to passenger vehicles, trucks, motorcycles, quad cycles or, whether self-propelled or
not an internal combustion propelled engine for a boat, or import, distribute, manufacture, retail
or supply any completed components and/or accessories to such vehicles, and/or renders a
related repair or replacement service to consumers in respect of such vehicles; and trailers, and
“anyone who modifies, converts or adapts vehicles”.’

[7] The matter came before Avvakoumides AJ who found that the first
respondent was not a retailer of accessories, neither did it render a repair or
replacement service to consumers as contemplated in the definition. The
application was therefore dismissed. By reason of its conclusion that the first
respondent did not fall within the definition, the court a quo did not consider it
necessary to decide the review application. The appeal is with its leave.

[8] It is common ground that the first respondent is not an importer, distributor,
retailer or supplier of vehicles as defined in the Code. The only question is
whether it is a retailer or supplier of accessories of recreational, agricultural,

industrial or commercial vehicles specified in the definition (the specified
vehicles).

[9] Counsel for the appellant submitted that the first respondent is a distributor,
retailer or supplier of completed components or accessories to the specified
vehicles, and that it renders a repair or replacement service to consumers in
respect of such vehicles within the meaning of those terms in the definition. In
support of this submission it was contended that the sale of fuel to consumers is
a ‘replacement’ of the fuel in their vehicles; that fuel which purports to clean,
repair and maintain engines ‘constitutes a related repair service’; and that by
providing an air pump on its premises to fix slow punctures or to replace air in
the tyres of vehicles, the first respondent also renders a repair or replacement
service to consumers.

[10] There is no evidence that the first respondent is a retailer of ‘completed
components’ within the meaning of that term in the definition. It is difficult to see
how the sale of fuel to consumers is converted to a ‘repair or replacement service’
in respect of their vehicles; or how the first respondent could ever be a retailer or
supplier as envisaged in the definition, of air to inflate tyres which is freely
provided to motorists at garages or service stations. Counsel for the appellant
rightly abandoned this argument.

[11] What remains then is whether the first respondent is a retailer or supplier
of ‘accessories’, more specifically whether the fuel, Shell Helix car engine oils
and Wynn’s products are ‘accessories’ as contemplated in the definition. The
appellant’s counsel submitted that these were accessories ‘in terms of the ordinary
English meaning of the word’ for the following reasons. Fuel is added to a motor
vehicle not only to ‘make it more useful’ but also to complete it – the vehicle
would not be able to drive without it. The purpose of the Code is to protect

consumers and it would be incongruous to interpret a non-essential addition to a
vehicle such as a spoiler as an accessory, but not fuel ‘which is an essential
component’ of the vehicle. In accordance with the principle in the law of property,
once fuel, an ‘accessory’, is added to a motor vehicle ‘it ceases its separate
identity and forms part of the motor vehicle’ and ‘the owner of the thing becomes
the owner of the accessory’.3 However, the appellant’s counsel conceded that this
principle found no application in this case, and that the issue was one of statutory
construction.

[12] It is a settled principle of statutory construction that when interpreting a
legislative provision, what must be considered is the language used, the context
in which the provision appears, the apparent purpose to which it is directed, and
the background to its preparation and production.4

[13] The starting point is s 2 of the Act. It provides that the Act must be
interpreted in a manner that gives effect to its purposes set out in s 3. These
include promoting and advancing the social and economic welfare of consumers
in the country by, inter alia, promoting fair business practices; and protecting
consumers from unconscionable, unfair and improper trade practices, and
deceptive, misleading, unfair or fraudulent conduct.5

[14] Industry codes are governed by s 82 of the Act. Section 82(1)(a) provides
that an ‘industry code’ means a code:
‘(i) regulating the interaction between or among persons conducting business within an
industry; or
(ii) regulating the interaction, or providing for alternative dispute resolution, between a person
contemplated in subparagraph (i) and consumers. . . .’

3 Macdonald Ltd v Radin NO & The Potchefstroom Dairies and Industries Co Ltd 1915 AD 454 at 467.
4 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para
18; Amcu & others v Chamber of Mines of South Africa & others [2017] ZACC 3; 2017 (3) SA 242 (CC) para 34.
5 Section 3(1)(c) and (d) of the Act.

In terms of s 82(2) the Minister by regulation may prescribe an industry code on
the recommendation of the National Consumer Commission. If a proposed
industry code provides for a scheme of alternative dispute resolution, when
recommending that code to the Minister, the Commission may also recommend
that the scheme be accredited as an ‘accredited industry ombud’.6

[15] The Code does not define the term ‘accessories’ and it must therefore be
given its ordinary meaning having regard to the particular context in which it is
used. In the Shorter Oxford English Dictionary7 ‘accessory’, as a noun, means:
‘An additional or subordinate thing; an adjunct, an accompaniment; a minor fitting or
attachment. . . .’
As an adjective the word is defined as follows:8
‘Of a thing: additional; subordinately contributing, dispensable; adventitious.’

[16] In my view, on its plain wording and a sensible construction of the
definition, the word ‘accessories’, means additional, subordinate things;
accompaniments; and minor fittings or attachments to, for example, passenger
vehicles, such as tow bars, sun shades, mud flaps, boot spoilers, mats designed to
fit a particular brand of car and the like. Fuel such as petrol and diesel, Shell Helix
engine oils and Wynn’s products simply do not fall into this category. In the
ordinary language of the definition and in the particular context, an ‘accessory’
is neither something that makes the vehicle more useful nor complete. A vehicle
without fuel or engine oil is not anything less than a vehicle.

6 Section 82(6) of the Act.
7 Shorter Oxford English Dictionary on Historical Principles 6 ed (2007) at 13.
8 Ibid at 13.

[17] Thus in Silke,9 Sutton JP, in construing the meaning of ‘accessories and
equipment’ in a price control regulation in order to determine whether a wireless
set was an accessory of a car, said:
‘There is no definition of “accessory” or of “equipment” in these regulations, but it seems to
me that the definition which is given of “accessory” in Chambers' Twentieth Century
Dictionary is the one that we should apply, namely, that an accessory is a secondary, additional
or non-essential item of equipment. In a case of this kind we must, to some extent, use our
knowledge of what constitutes an accessory to a motor-car and what constitutes equipment,
and it seems to me that the difference between an accessory and equipment is this; that an
accessory is an amenity in the car; it may be something more but it is at least an amenity which
is not necessary for the proper use of the car, such as a wireless or a clock or a cigarette-lighter,
whereas equipment would be something that is necessary for the proper use of the car, such as
windscreen wipers, bumpers or a speedometer.’

[18] Counsel for the first respondent referred us to various foreign cases in
which the word ‘accessory’ was interpreted.10 These were however of limited
assistance because they concern the appropriate classification of things for
purposes of customs duty according to classification schemes and rules of
interpretation for those schemes, which courts are obliged to apply in the
countries concerned. But that does not detract from the ordinary meaning of
‘accessory’ considered in those cases. So for example in Amoena,11 Lord
Carnwath said that one would not naturally describe petrol as ‘a part or accessory
of a car’.  In similar vein, Lehane J in Boehringer12 concluded that ‘fuel is not an
accessory for a vehicle, a tape for a recorder or a film for a camera’. Likewise in
Polaroid Australia,13 Gibbs J, stated that:

9 R v Silke 1947 (4) SA 297 (C) at 298-299.
10 Amoena (UK) Ltd v Revenue and Customs Commissioners [2016] 4 All ER 705; [2016] UKSC 41; Chief
Executive Officer of Customs v Boehringer Mannheim Australia Pty Ltd [1997] FCA 1235; 26 AAR 375; Deputy
Commissioner of Taxation v Polaroid Australia Pty Ltd (1971) 46 ALJR 32; Re National Panasonic (Australia)
Pty Limited and Collector of Customs (New South Wales) [1985] AATA 132 (5 June 1985); and 330651 BC Ltd
v HMTQ 2003 BCCA 658.
11 Amoena fn 10 para 41.
12 Boehringer fn 10.
13 Polaroid Australia fn 10 at 656-657.

‘. . . [A] film is not part of a camera, nor a bullet of a gun, nor petrol of a motor vehicle. . . An
accessory for a camera is an extra and additional part of the equipment of the camera itself
such as a light meter, a filter or a wide-angle lens, and in the ordinary course of language a film
would not be referred to as an accessory for a conventional camera, nor a film pack or a picture
roll as an accessory for a Polaroid camera.’

[19] The plain language of ‘accessory’ in the definition as meaning additional
or subordinate things, minor fittings or attachments is underscored by the
immediate statutory context: ‘accessories’ is used in close association with, but
in contradistinction to, ‘completed components’ of the specified vehicles. Thus
retailers and suppliers of components of, and accessories to, those vehicles fall
within the definition. The Shorter Oxford English Dictionary defines
‘component’, inter alia, as:
‘A constituent part; spec.: (a) any of the separate parts of a motor vehicle, machine, etc . . . .’14
A component or constituent part of a vehicle is therefore something that is
essential or integral to its functioning, such as a piston, crankshaft, cylinder head,
and an ignition and exhaust system.

[20] Fuel pumped into the tank of a vehicle, car engine oils and Wynn’s
products are obviously not vehicle components. Neither are these, in my opinion,
and as a matter of common sense, accessories. On the appellant’s argument, petrol
or diesel stored in underground fuel tanks of a fuel retailer’s premises – most
certainly not an addition or minor attachment to a car – would be an accessory of
a vehicle. And if fuel in a storage tank is not an accessory of a vehicle, then it is
inconceivable how it can be transformed into such an accessory when it is
pumped into the vehicle’s tank.

14 Shorter Oxford English Dictionary fn 7 at 473.

[21] The contextual meaning of ‘accessories’ is further strengthened by the fact
that importers, distributors, manufacturers, retailers or suppliers who render a
‘related repair or replacement service to consumers in respect of such vehicles;
and trailers, and “anyone who modifies, converts or adapts vehicles”’, are also
included in the definition. In other words, only those engaged in a repair or
replacement service connected to the retail or supply of the specified vehicles, or
who modify vehicles, are part of the automotive industry. Again, fuel retailers are
excluded. It is thus hardly surprising that all of the automotive industry
associations listed in Schedule 1 to the Code are retailers of vehicles or vehicle
components.

[22] Further, the above interpretation is consistent with the purposes of the Act
and the Code – to regulate relations between persons conducting business within
the automotive industry, to provide for a scheme of alternative dispute resolution
between consumers and participants in the industry, and to create an industry
ombudsman to provide alternative dispute resolution services. The Code states
that it is an industry code which applies to the entire automotive industry as
defined; that it relates to conduct for the supply of goods and services by the
automotive industry and consumers across the country; and that it focuses on
consumer protection, supplier guidance and fair business practices.

[23] Counsel for the appellant however submitted that the purpose of the Code
was to protect consumers against rogue or dishonest retailers selling substandard
fuel to unsuspecting consumers, which would be defeated if the term ‘accessory’
were interpreted to include a spoiler which is a non-essential item of a vehicle,
but not fuel which is an essential component without which the vehicle cannot
function. Consumers, so it was submitted, would not be entitled to approach an
ombud and be left without a remedy.

[24] The submission does not bear scrutiny. Consumers of fuel and lubricants
are protected under the Consumer Goods and Services Industry Code of Conduct
(the Consumer Goods Code),15 prescribed by the Minister as the industry code
for the consumer goods and services industry; and in terms of which the consumer
goods and services ombud is the accredited industry ombud under s 82 of the Act.
The Consumer Goods Code is a catch-all code covering the retail or supply of
goods and services, and provides that the words, ‘Consumer’, ‘Goods’ and
‘Service’ have the meaning given to them in s 1 of the Act. Thus, ‘consumer’
means, inter alia, ‘a person to whom goods or services are marketed in the
ordinary course of a supplier’s business’. The term ‘goods’ includes:
‘(a) anything marketed for human consumption;
(b) any tangible object not otherwise contemplated in paragraph (a)…’

[25] The Consumer Goods Code expressly excludes from its ambit (a)
participants and entities regulated by another code prescribed by the Minister
under s 82 of the Act, such as the Code; and (b) the automotive industry. The
former code defines the ‘Consumer Goods and Services Industry’ as meaning:
‘. . . [A]ll Participants and/or entities involved in the Supply Chain that provides, markets
and/or offers to supply Goods and Services to Consumers, unless excluded in terms of clause
4.4 hereof.’
Clause 4.1 provides:
‘The Code applies to all Participants, unless they are regulated elsewhere by other public
regulation, a code prescribed by the Minister in terms of section 82 of the CPA and/or where a
complaint falls within the jurisdiction of an Ombud with Jurisdiction, or an Industry Ombud
accredited in terms of section 82(6) of the CPA.’
Clause 4.4 reads:

15 ‘Consumer Protection Act (66/2008): Prescription of the Consumer Goods and Services Industry Code and
Accreditation of the Alternative Dispute Resolution Scheme Administered by Consumer Goods and Industry
Ombud as an Accredited Industry Ombud in terms of Section 82 of the Act GN R 271, GG 38637, 30 March
2015.’

‘This Code excludes: transactions that are not covered by the CPA and/or that are governed by
other public regulation; the automotive industry, Electronic Communication Service as defined
in section 1 of the Electronic Communications Act, 2005 (Act No. 36 of 2005) and transactions
with organs of state or financial institutions.’

[26] So, contrary to the appellant’s contention, consumers indeed have a remedy
and are entitled to lodge a complaint with the Office of the Consumer Goods and
Services Ombud in cases where rogue or dishonest fuel retailers sell substandard
products to them. This too, the appellant’s counsel conceded.

[27] The definition makes it clear that the Code applies to retailers or suppliers
of the specified vehicles, component parts and accessories of such vehicles, and
those who render repair or replacement services connected with those vehicles. It
does not apply to fuel retailers who do not engage in these activities. It follows
that the court a quo was correct and that the appeal must fail.

[28] The appeal is dismissed with costs.

_______________________

A Schippers
Judge of Appeal

APPEARANCES

For Appellant:
R Michau SC

L Harilal
Arthur Channon Attorneys
Huggett & Retief Inc, Bloemfontein

For First Respondent:
G Quixley

Seton Smith and Associates
Honey Attorneys, Bloemfontein