[Question] We have been defrauded of R60K - Please help

[Graytraining]

Please can anyone help us with an ongoing dispute (since Feb 2009)?

When we cancelled the dedicated mobile phone line into our office switchboard, we noticed that our existing Hymax installed HA38 system was unable to dial cell phone numbers despite having done so successfully for years.

A salesman who said he was from HYMAX (he gave us his business card to confirm this, but we later found out that he was from ITA, and not affiliated with Hymax) visited our office and insisted that the only way to resolve the issue was to replace the system. He talked us into "an extremely good deal to upgrad to a better system". He claimed the new system they could install was far superior than the one we currently had & promised us a "good deal" if we signed a finance agreement then & there (this was on a Hymax Letterheaded form). He told us that the company that we were then doing business with (Sub-Logic) were out of business, and had installed a sub-standard system. This we later found out was a lie. We needed the telephone problem sorted asap as it was costing us business in lost calls, so signed, believing that we would get an upgrade.

They installed an AV20 system with Alcatel handsets.
When they installed the AV20 system, the Hymax engineers removed our existing fully paid up HA38 equipment, together with all the handsets, and took these away without our permission. We believed that they were Hymax engineers, but later found out from Hymax HQ that the company whose salesperson contacted us were not affiliated to Hymax. Essentially we were under the impression that we were dealing directly with Hymax (business cards and letterheads all kept), but later found out that they were ITA.

Shortly after the AV20 system was installed by Hymax we received complaints from our customers that we were often engaged. On investigation, we realised that Hymax had reduced us from three external lines to two. After lodging a complaint with the salesman we had dealt with from Hymax, they came in, removed the AV20 system and replaced it with an AV38 system.

We have since discovered that not being able to call cell phones was a programming issue, and Hymax or Sub-Logic could have rectified it with a simple flick of a switch. The Salesperson lied to us telling us that we needed to upgrade.

The current situation is as follows:
We believe that we were lied to and mis-sold a new system when all that was actually required was for the existing system be correctly programmed.

Our fully paid up HA38 system, together with all handsets, remains in the possession of Hymax (or ITA) . This unauthorised removal of our property constitutes theft as they have not returned this despite numerous requests.

The handsets installed by Hymax are a downgrade in functionality over those that they removed.
We are now subject to a Hire Purchase agreement on an AV20 system & the serial numbers refer to the system they first installed then replaced.

We do not have an AV20 system now, ITA gave us an AV38 system after complaints, but the serial no.s on this system do not match the serial no.s on the contract with the financing company.

We are unable to cancel the rental agreement with Centrafin Finance for the AV20 equipment. In total this new switchboard will cost us well in excess of R60,000 over 5 years.

We have since discovered that the loss of this functionality on our original HA38 system was due to programming of our system by Hymax & could have been rectified without the need to replace the system.

We have now reverted back to Sub-Logic.

We have contacted Cherry Allen (the managing director of Hymax SA) who refuses to help us. She has informed us that this company is actually called ITA & that they are agents who supply Hymax telephone systems. Ms Allen informed us that Hymax have sold off that side of the business & she cannot help us in any way.

Despite numerous requests to ITA (who we believed were Hymax) they refuse to cancel the finance agreement & have never returned any of our equipment. Their argument is that we had a problem & that they resolved it, the fact that we are not happy with the way they resolved it they say, is our problem.



Please advise us as what we can do. We would like to cancel this contract and not be obligated to pay the rest of the R60k, but we don't know whether there will be a problem with the financing company.

Any help would be much appreciated.

[desA]

Sounds like you need a good lawyer. Hope you get it all sorted out - sounds very stressful.

[Debbiedle]

Hi GT

What Des said. Good Luck!

[helpwithdebt]

WOW

Hi
I would suggest the following.
Firstly. Request a formal cancellation of the financing agreement as it was granted to you under pretense that the equipment was supplied by a certain company, which it wasn't.
lay a charge with the South African Police to investigate the "false" salesman and his company. They will be very quick to establish links between Hymax and them if any.

In short, a loan that was granted would have been secured by the goods financed. As I understand the goods are not what they should be. In accordance with the National credit Act, this is seen as reckless lending by credit providers.

Short answer that will probably only leave you with a glimmer of hope.
Please feel free to contact me and I will se where I can assist you.

Good luck

Stefan

[Graytraining]

Do you reckon that we have a case though?

[desA]

Do you reckon that we have a case though?

You will need to determine this with your lawyer. I don't think it would be of much use to you to have a bunch of opinions from internet board members - this will only confuse the situation even more.

Sounds like a mix of fraud, civil liability, mis-representation all thrown into a mix with suppliers, creditors, loan-agencies, end-user. A complex web & a total mess, by all accounts.

[Graytraining]

Thanks for your opinion DesA.

Another question that probably shouldn't be asked on a board then:

I'm not experienced in dealing with this type of affair, i've also just arrived back from years studying overseas and have not been in the position to make these decisions before. What laws apart from the national credit act (thanks Helpwithdebt) could I read that could give me a better understanding of where we stand? If i do decide to take this forward and if we do win then are all legal costs paid for by the other party or by us?

Probably obvious questions...

One more thing: is there a time limit on when the fraud took place and when I would need to take it to the police?

Thanks.

[desA]

You really should be talking to an attorney, not to us - especially if you have just returned from abroad.

I think that you'll just go off on a detour with any advice we try you give you. Honestly.

[helpwithdebt]

Those Lawyers...

Hi

I agree with DesA about seeing a good lawyer. Seek one that specializes is litigation and with some criminal (case) history.

As for the statue on limitations question.
The South African High court and magistrates court-rules allows for a period of 5 years limiting a persons claim against another for payments owed. As for the fraud case, there is no limit on the time from the defrauding to the case date.

Basically it means that if the lawyers will sue in terms of the court rules they have to do something (anything) in the next 5 years to extend the period for another 5 years. If for instance you keep quite about money owed to you for 5 years you cannot request a payback. But if you just send a simple email 4 years and 11 months to the person owing you, you have another 5 years.

PS. Please dont wait 5 years!

Good Luck

Stefan

[Dave A]

Reading this, I'm reminded why prevention is cheaper than cure. Pursuing this could certainly run up some legal fees and even if you win, it's not going to help you much if ITA turns out to be a house of straw.

Do you reckon that we have a case though?

It sounds like a damages suite for misrepresentation against ITA/their representative may have reasonable prospects.

There are a couple of key questions as to who else you might be able to sue. Critical in this is who did you contract with and who did the install? Who removed your exisiting equipment and was it removed with your permission?

And how much of the facts of the misrepresentation can you prove to the satisfaction of a court of law? Sometimes the defendant will shoot themselves in the foot under cross-examination, but it's far more reliable to have witnesses to the misrepresentation. The onus will be on you to prove your case.

There's enough in play to at least brief a lawyer, and for the lawyer to send a letter of demand. Before taking it any further though, you need to seriously assess whether you'll be throwing good money after bad. Take the counsel of your lawyer seriously in this.

And if he/she is all gung ho that it's a slam dunk case, run for the hills. You've already invested a fair chunk of change in school fees and in your shoes I'd be a little wary of being too trusting again just yet.

[Graytraining]

Thank you everyone for your advise.

One of my cousins is in the profession, so i'll take your advise and see what she has to say about the situation.

Hopefully we'll be able to sue and get our original equipment back and not have to pay the other 50k.

cheers

[NIRE]

Hi

If you are not able to spend the money it will take to proceed legally there are two things you can do to get some action.

One opens a case of theft for the system they removed without permission. They have no right to do this unless they have written permision from you or it is part of a rebait included in sale.

Two report both companies under the new consumer protection act (this act can be downloaded off the web)

Although you have an older complaint the commission is receiving them as long as there is current cause, which you do have.

This will cost you nothing but will put them under investigation which will usually make them want to talk resolution.

Further to this Hymax enter into agreements with any agents that sell their product and thus cannot claim not to have any liability. You should establish from the bank exactly who received payment. If it is Hymax direct you have your link, if it is this other company ask them for the agent’s agreement or SLA between them and Hymax.

If you need further information on how this works I can connect you with a friend of mine who runs a business on this basis selling on behalf of a number of companies, she will be able to give you information.

Bottom line is you were sold something you did not need and convinced to buy based on misrepresented information this is against the consumer protection act. and they will take it up with the parties.

Hope it helps

[NIRE]

Sorry one more thing

If Hymax is saying they have no connection with this company. Ask them for a letter stating they did not give permission for them to use their letterhead and business cards, or logo.

Then the other company has committed fraud which you report to the police.

If Hymax admits the other company had permission to use their stationary, they admit to the association and thus need to address this matter.

[flaker]

legal route is one way--one has to know how far to go. when to pull out.its never been an exact science,unfortunately. you never ever know which way it will swing.

[Graytraining]

Again, thank you.

I'll post about how this is proceeding.

Nire, I may take up your offer if the need arises. I'll chat to my solicitor friend first.

cheers.