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[2019] ZAGPJHC 492
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Maphutse v Motodeal Park (Pty) Ltd t/a Motor Deal Premium and Another (40586/2016) [2019] ZAGPJHC 492 (3 December 2019)
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Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NUMBER: 40586/2016
MAPHUTSE,
KABATI
GLADYS
Applicant
and
MOTODEAL
PARK (PTY) LTD t/a
MOTOR
DEAL PREMIUM
1
st
Respondent
NEDBANK
2
nd
Respondent
JUDGMENT
SKIBI
AJ
[1]
This is an opposed application in which the applicant seeks
inter
alia
the following relief:
[1.1] Cancellation of a
sale agreement in respect of a pre-owned Nissan NP 200 with
registration letters and numbers
B[…] GP;
[1.2] Refund of the sum
of R71 015-62 being a total sum of the deposit and all instalments
paid as of 2 September 2016 in terms
of the agreement;
[1.3] Refund of all
instalments to have been paid by the applicant upon finalisation of
this matter;
[1.4] Ordering the first
respondent to return a motor vehicle, polo vivo with registration
letters and numbers C[…] GP to
the applicant which vehicle was
used as a trade in;
[1.5] That in the event
the vehicle mentioned in paragraph 1.4 above is no longer available
then and in that case the monetary market
value at the time of the
agreement being a sum of R116 200-00, to be paid to the
applicant within a period of 14 days from
the date of order in favour
of the applicant.
[1.6] the first
respondent is ordered to pay the costs of this application.
[2]
At all material times the applicant was the owner of the Polo Vivo
referred to
above
as she had been driving the said vehicle for sometime. She
decided to trade the vehicle in order so that she can purchase
another vehicle. In December 2014 she went to the vehicle
dealership of the first respondent (hereinafter to refer as
Motordeal)
to exchange or trade in her vehicle. Motor deal
prepared the documents for settlement of her then existing vehicle.
The offer for settlement was processed. She was required to pay
R10, 000.00 in addition to the settlement amount of her vehicle.
She identified a Nissan NP 200 as the vehicle she was interested to
purchase. The said Nissan NP 200 was financed by Motor
Finance
Corporation, a finance division of Nedbank (hereinafter referred as
MFC or the second respondent). She alleges that
the vehicle she
bought had reached 63000km millage at the time she bought it.
The value of the polo vivo she traded in was
R116, 200.00.
[3]
The agreement between the applicant and the second respondent was
reduced to writing. The applicant alleges that the reason
she
for buying the vehicle was being informed by the first
respondent that the vehicle has a full service history and
a valid
warranty. It was based on this condition that she agreed to
purchase the vehicle. She avers that she was informed
that she
should not worry about a hard copy of the service book as all the
services are recorded by Nissan in their system.
The applicant
was advised that at the next service interval she may take the
vehicle to any Nissan accredited dealer who will be
able to generate
the vehicle service history and assist her accordingly.
[4]
After signing all the papers and once the vehicle finance was
approved the first respondent was instructed by the second respondent
to deliver the vehicle to her. She acknowledged delivery of the
vehicle and she confirmed that she inspected the vehicle
had no
defects. In the terms of the agreement it is recorded that the
second respondent is the owner of the vehicle.
[5]
When the vehicle reached 75 000km the applicant took the vehicle
for service in Motordeal Johannesburg South dealership,
in Ormonde
and it was enquired if the vehicle has other mechanical problems
which need to be fixed apart from the service.
She mentioned
that there is a noise coming from the engine of the vehicle and there
was problem with the brake pads. She
gave instructions that
those be fixed and she left the vehicle to go to work. When she
came back to collect the vehicle after
work she was told that the
brake pads and the noise in the engine was not fixed. She was
also told that there were no records
of service history on the
system. The first respondent offered to repair the vehicle and gave
her a courtesy vehicle and also extended
the warranty for two years.
The applicant considered this as a misrepresentation by the first
respondent and lodged a complaint
with Consumer Commission. The
Commission appointed mediation in terms of section 70 (1) (c).
[6]
It is common cause that the applicant lodged a complainant at the
South African Consumer Commission (mediation) which gave a
ruling.
Aggrieved by the said ruling the applicant pursued the matter at the
Motor Industry Ombudsman of South Africa (MIOSA).
She did not
succeed on both at mediation and arbitration. After the ruling was
made by MIOSA the applicant instituted the application
to this court.
[7]
On 20 November 2019, the date of argument of the matter the parties
reached a mutual agreement to first deal with the points
in
limine
only. After arguments I reserved my ruling until 22 November
but on that date the court was not ready with the ruling and
the
parties were informed they will be notified on a later date.
[8]
Before making a determination on the points in
limine
I must
mention that on 30 April the second respondent was granted leave to
file a supplementary affidavit and the said application
which was
unopposed by the applicant and it was granted. The
judgment will be dealing with the points
in limine
raised.
[9]
I am called upon to make a determination on the following points
in
limine:
[9.1] Whether the
jurisdiction of this court is ousted.
[9.2] Whether the matter
has already been adjudicated by motor industry ombudsman as envisaged
in section 69 of the Consumer Protection
Act
[1]
.
(i)
Whether this Court has Jurisdiction
[10]
The main point of contention is whether the applicant prematurely
approached this court without first exhausting all the remedies
set
out in the Consumer Protection Act
[2]
(hereinafter referred to as CPA). The second respondent
contended that she prematurely approached this court in that she
should have first exhausted all the mechanisms set out in section 69
(a) to (c). The second respondent referred to decided
cases in
support of his contention. This contention was opposed by the
applicant. To determine this point one has to consider
the
provisions of section 69 of the CPA and the case law as to how this
provisions of this section was interpreted.
[11]
Section 69 of the Act deals with the enforcement of a consumers’
rights in terms of the CPA. The section reads:
69 (1) A person
contemplated in section 4 (1) may seek to enforce any right in terms
of this Act or in terms of a transaction
or agreement, or otherwise
resolve any dispute with a supplier, by-
(a)
referring the matter directly to the
Tribunal, if such a direct referral is permitted by this Act in the
case of the particular
dispute;
(b)
referring the matter to the applicable
ombud with jurisdiction, if the supplier is subject to the
jurisdiction of any ombud;
(c)
If the matter does not concern a supplier
contemplated in paragraph (b)-
(i)
referring the matter to the applicable
industry ombud, accredited in terms of section 82(6), if the supplier
is subject to any such
ombud; or
(ii)
applying to the consumer court of the
province with jurisdiction over the matter, if there is such a
consumer court, subject to
the law establishing or governing that
consumer court;
(iii)
referring the matter to another
alternative dispute resolution agent contemplated in section 70; or
(iv)
filing a complaint with the Commission in
accordance with section 71;
(d)
Approaching a court with jurisdiction over
the matter, if
all
the remedies available to that person in terms of national
legislation have been exhausted. (
own
underlining)
[12]
The applicant is a person contemplated in terms of section 4(1) of
the CPA and the issue raised in this application
concerns the
enforcement of a right in terms of a transaction. The second
respondent is a supplier as contemplated in section
69 (b)
alternatively 69 (c)(i), in that there is an applicable industry
ombud, accredited in terms of section 82(6) of the CPA,
and the first
respondent and second respondent the are subject to such ombud
pursuant to the Government Notice 817 of 17 October
2014 in terms
whereof the Motor Industry Ombudsman of South Africa is accredited in
terms of section 86(6)(b) of the CPA.
[13]
The second respondent’s contention is that the applicant has
not exhausted all the remedies available to her and that
amounts to
non-compliance with the provisions of section 69(1) of the CPA.
Based on the failure to comply with the said statutory
provisions of the Act this matter is prematurely before this court.
It is contended that she ought to have first exhausted all
the
remedies as set out above.
[14]
The second respondent has referred me to decided two cases where the
issue of interpretation of section 69 of the CPA has been
dealt with,
being,
Joroy
4440 CC v Potgieter and Another NNO
[3]
and
Nzwana
v Dukes Motors t/a Dampier Nissan
[4]
.
The
Second respondent contended that according to these two cases the
mechanism laid down in section 69 of the CPA had to be followed
before an individual could approach a court for relief.
[15]
In the
Joroy matte
r it was held that section 69 was peremptory
and that a consumer could only approach a court if section 69 had
been complied with.
“
[8] I am not of
the view that section 69 (d) can reasonably be construed to have more
than one meaning at all. I am in agreement
with Mr Tsangarakis
that the wording of the said section is clear and unambiguous.
It is specifically stated that the consumer
may approach the court if
all the aforementioned avenues have been exhausted. The
legislature was very specific in prescribing
the redress that a
customer has in terms of this section. I fail to see any other
interpretation can be given to the word
“if” consequently
I do not venture into the rules of interpretation or the provisions
of the CPA in this regard
.”
[16]
In addition it was found that :
[16.1] the foresaid
interpretation was in accordance with the principle where a
specialised framework has been created for the resolution
of
disputes, parties must pursue their claims primarily through such
mechanisms and reference was made to
Chirwa
v Transnet Ltd and others
[5]
,
[16.2] in the case of the
motor industry, the ombudsman has been accredited
[6]
.
[17]
In the
Nzwana
matter
[7]
it was held that the provisions of section 69 do not infringe the
provisions of section 34 of the Constitution. The court
held
that section 69 had to be complied with before the court was
approached.
“
[29] By virtue
of section 69 (d) of the CPA there is a limitation upon access to
Civil Court in matters arising under the CPA in
respect of Consumer
Rights (unless Common Law Rights) and thus with jurisdiction (not a
Consumer Court) may be approached by a
person with locus standi “if”
all other remedies available to that person in terms of the National
Legislation have
been exhausted.”
[33] I agree with the
commentary that this does not oust the court’s jurisdiction but
that it implies that a Court cannot
be approached until all other
statutory remedies (including section 69) have first been exhausted
that do not entail Court intervention.
This would seem to mean
that in any action or application brought before a court would
require to allege and plead due compliance.
[37] In the result and
having regard to the above it would seem then the requirement of
prior compliance with statutory requirement
of prior compliance with
statutory remedies, particularly section 69, effectively presently
temporarily bars applicant’s
access to this court on the
facts.”
[18]
The decision in the
Joroy
[8]
matter was also approved and followed, with reference to the
Chirwa
[9]
matter.
[19]
The first respondent aligned itself with the argument by the second
respondent in support of the argument of the court’s
lack of
jurisdiction in this matter.
[20]
The applicant’s contention is that she had approached the legal
insurance to seek advice on the matter. She had taken
her matter to
mediation seeking resolution but she didn’t succeed and she
pursed it further to the Motor Industry Ombudsman
of South Africa
(MIOSA). It has been contended on behalf of the applicant she
didn’t have to shop
around
other legal entities, she has fully complied with the provisions of
section 69 of the CPA. It has been further argued that
she has a
right of access to court in terms of Section 34 of the Constitution,
Republic of South Africa
[10]
(the Constitution). Further that she was entitled even to approach
the court directly but she met all the preliminaries. The applicant
relied on the provisions of section 4(1) of the CPA in his
contention.
[21]
The Consumer Protection Act was promulgated in terms of the
Government Gazette No 817 (GG) dated 17 October 2014 signed by
the
Honourable Minister of Trade and Industry, Dr R. Davis. In
terms of this GG the Motor Industry Ombud of South Africa
is
accredited in terms of section 86(6) of the CPA.
[22]
The section 69 hierarchy applicable is outlined by Lowe J in
Nzwana
matter
[11]
as follows:
[31] With this
background, section 69 hierarchy applicable is set out in The
Commentary as follows:
“
33.
Summary of routes to
redress.
It is submitted that in the absence of express
directions by s 69, the section appears to imply that generally the
preferred route
for redress is the following: If a dispute as
contemplated in the CPA arises between a consumer and a supplier and
they cannot
resolve such dispute between themselves, the parties
should
first attempt to resolve their dispute by means of
alternative dispute resolution
by approaching one (not all) of
the alternative dispute resolution agents mentioned in the CPA if
they have not previously and unsuccessfully
attempted this route.
If there is an ombud with jurisdiction or industry ombud in the
particular sector,
the ombud may be approached
.
Alternatively the
consumer may approach a consumer cour
t with
jurisdiction as contemplated by the CPA, if such court exists and is
operational. If these entities are unable to resolve
the
dispute,
a complaint may be lodged with the National Consumer
Commission
. Consumers should however be mindful of the fact
that the Commission does not investigate individual complaints
anymore but
only investigates endemic harmful business practices and
trends and focuses on issues of policy, hence the
Commission
may
decline to investigate a particular matter and
refer
the consumer to another entity for assistance
. However,
where the
Commission
does decide to accept the lodging of a
complaint it
will then either issue a non-referral notice or refer
the complaint to another regulatory authority
or will investigate
the matter. After an investigation into a complaint,
the
Commission may refer the matter to the National Prosecuting Authority
(in respect of an offence) or the equality court (in respect of
discriminatory conduct), or where it concludes that prohibited
conduct
has occurred,
it may propose a draft consent order if
agreement is reached with the respondent
regarding an appropriate
order. Alternatively, the Commission may issue a compliance
notice or refer the matter to a consumer
court (if there is one in
the province and the Commission believes that the issues raised by
the complaint can be dealt with expeditiously
and fully by such
referral), or
it may refer the matter to the Tribunal
.
Where the Commission issues a non-referral notice in response to a
complaint, other than on the grounds contemplated in
s 116,
the
complainant may refer the matter directly to the consumer court or
the Tribunal
, with leave of the Tribunal. It may happen
that a consumer who resides in a remote area of the country, where
there is no
consumer court or alternative dispute resolution agent,
is involved in a dispute with a supplier and no ombud with
jurisdiction
or no industry ombud exists that can deal with that
matter. In such instance it is submitted that such consumer may
then,
as a first step in accessing redress, lodge a complaint with
the Commission, which will then either deal with the matter or divert
it in accordance with s 72. With regard to referral of matters
to the Tribunal it is further submitted that the fact that
the
Tribunal is mentioned first in s 69 does not justify the inference
that the Tribunal may generally be approached as a ‘point
of
first entry’ in matters involving infringements of consumer
rights. Apart from the fact that the Tribunal has limited
capacity given the fact that it is an
ad hoc
body, the
circumstances under which the Tribunal may be approached are clearly
set out in ss 73, 74, 75, 114 and 116. It is
clear from these
provisions as discussed below that the Tribunal cannot be approached
as point of first entry for purposes of redress
in terms of the CPA
as, even in the case of a direct referral by a consumer, the National
Consumer Commission should have been
approached first and should have
non-referred the specific complaint.” (highlighted in bold
indicate the most basic steps)
[23]
Before I make a determination, some background to this case is
necessary.
Immediately
after the applicant became aware of the defects in the vehicle she
took the matter to mediation and the mediation gave
a ruling.
On 25 November 2015 the mediation came up with the following ruling:
“
During the process
the parties agreed to settle the dispute on the following conditions:
1. The consumer will
return the supplier’s vehicle on the following conditions
The Supplier must
provide the Consumer with the vehicle’s service history and
service book as promised at the point of sale.
2. If the requested
documents is not available the Consumer will accept her vehicle but
reserve her rights to refer the matter to
the Motor Industry
Ombudsman without further negotiations or to prejudice her dispute.”
[24]
The applicant was still not satisfied and she
(
took
)
referred the complaint to the
ombud
as be paragraph 2 of the ruling of mediation. The ombud
considered the complaint and made a ruling. On 13 June
2016,
MIOSA made the ruling in the following:
“
We rule that
Mrs Maphutse must fetch her vehicle and return the courtesy vehicle
back to Motordeal Vanderbijlpark. This action
must take place
within 15 days as of date of this correspondence”
[12]
[25]
To understand the reasons behind the decision I take on this point in
limine
raised one should understand the purposes of the
Consumer Protection Act which are set out in the Act. The legislature
deemed it
necessary to enact this piece of legislation to simplify
the process of resolving disputes between the consumers and the
service
providers in less expensive ways so that even the poorest of
the poor would be able to take the dispute to the relevant legal
entity
;
before
,
or without
,
incurring costs of
litigation in a court of law. The purposes of this Act is set out in
section 3 of the CPA.
Section
3 of the CPA reads”
“
3.
(1) The purposes of this Act are to promote and advance the social
and economic welfare of consumers in South Africa by—
(a)
establishing
a legal framework for the achievement and maintenance of a consumer
market that is fair, accessible, efficient, sustainable
and
responsible for the benefit of consumers generally;
(b)
reducing and ameliorating any disadvantages experienced in accessing
any supply of goods or services by consumers—
(i)
who are
low-income persons or persons comprising low-income communities;
(ii)
who live in
remote, isolated or low-density population areas or communities;
(iii)
who are
minors, seniors or other similarly vulnerable consumers; or
(iv)
whose ability
to read and comprehend any advertisement, agreement, mark,
instruction, label, warning, notice or other visual representation
is
limited by reason of low literacy, vision impairment or limited
fluency in the language in which the representation is produced,
published or presented;
(c)
promoting fair business practices;
(d)
protecting consumers from—
(i)
unconscionable, unfair, unreasonable, unjust or otherwise improper
trade practices; and
(ii)
deceptive, misleading, unfair or fraudulent conduct;
(e)
improving consumer
awareness and information and encouraging responsible and informed
consumer choice and behaviour;
(f)
promoting consumer
confidence, empowerment, and the development of a culture of consumer
responsibility, through individual and
group education, vigilance,
advocacy and activism;
(g)
providing for a consistent, accessible and efficient system of
consensual resolution of disputes arising from consumer
transactions…”
[26]
The applicant chose to resolve her dispute with the service provider
by the
mechanisms
set out in the CPA where she followed the mediation and arbitration
processes. Section 69 (d) of the CPA says the
consumer who
chooses this process should exhaust all the remedies available to
him/her before approaching the court
.
S
he has not complied fully with the
requirements of section 69 (1) (a)-(c). She may only approach
this court if she states
facts under oath that she has complied fully
with the provisions of the section 69 (1) (a)-(c).
[27]
Counsel for the applicant referred me to the provisions of section 4
(1) of the CPA and contended that the applicant has a
right to
approach a court
alleging
that a right in terms of this Act has been infringed, impaired or
threatened, or that prohibited conduct has occurred.
This
is indeed the case
,
but it is a last resort if one proceeds in terms of this Act.
If the consumer chooses to utilise
ano
ther
civil law route in cases excluded by
the
provisions
of the CPA he/she may approach the court directly.
This
is a similar approach which was followed in
Nzwana
matter
[13]
;
Joroy
matter
and
the latter referred to Constitutional Court decision of
Chirwa
[14]
[28]
Based on the reasons set out above and the case law
;
it follows that a point
in limine
regarding jurisdiction of
his court is upheld. A finding is made that this Court’s
jurisdiction is ousted.
(ii)
whether the matter has already adjudicated upon
[29]
The second point
in limine
raised is that MIOSA has resolved
the matter and the applicant chose not to appeal the ruling of
MIOSA. It is common cause
MIOSA made a ruling which is being
challenged by the applicant. As I have just stated above
;
that this court’s jurisdiction is ousted at this stage I choose
not to express a view on the merits of the case. That
being the
case I am constrained not to make a determination on this second
point
in limine
. The reason is simple, if I make a
determination now, she will be prevented from exercising her right to
approach other legal
entities as set out in section 69 of the CPA.
[30]
A lot has been argued about the interpretation of the agreements as
was dealt with by the Supreme Court of Appeal in the case
of
Singh
v BMW Financial Services (SA) (Pty) Ltd and another
[15]
.
I am not going to express any view on that issue as it goes straight
to the merits of the case if one has regard to the
prayers in the
notice of motion.
[31]
In the result I do not make a finding on the merits of the dispute in
this application since the applicant remains at liberty
to utilize
any of the dispute resolution mechanisms available in terms of the
CPA, and it would thus be inappropriate to comment
on such merits
,
at this stage.
Costs
[32]
On the issue of costs
;
in the normal course the costs follow the result. In any event the
question of costs is within the discretion of the court and
this
discretion is exercised judiciously. The issue of jurisdiction has
been raised by the second respondent. The first respondent
did
not raise this point in
limine
.
Although the second respondent succeeded with this issue the
applicant indicated well in advance that she is not seeking
any
relief against the second respondent. In my view, it will not be fair
to penalise her with a cost order.
[33]
In the result:
(a)
The application is dismissed, due to the
applicant’s failure to allege compliance with all the
alternative dispute resolution
options applicable to this matter as
referred to in Section 69 of the CPA.
(b) Each party to pay its
own costs.
_______________________
N.
SKIBI
Acting
Judge of the High Court, Gauteng Local Division, Johannesburg
DATE
OF HEARING: 20 November 2019
DATE
OF JUDGMENT: 03 December 2019
APPEARANCES:
COUNSEL
FOR THE APPLICANT: Adv. N. Ralikhuvhana
Instructed
by Mudzusi Molobela Attorneys.
Applicant’s
Attorneys
COUNSEL
FOR THE FIRST RESPONDENT: ADV. Adv. A. Laher
Instructed
by DRSM Attorneys
Rosebank
JOHANNESBURG
COUNSEL
FOR THE FIRST RESPONDENT: ADV. Adv. M. Reineke
Instructed
by Fasken (Inc. in SA as Bell Dewar Inc.)
Sandton
[1]
68 of 2008
[2]
68 of 2008
[3]
2016 (3) SA 465 (FB)
[4]
(1170/2018) [2019] ZAECGC 81 (3 September 2019)
[5]
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at para 10
[6]
Joroy at par 9
[7]
Supra at para 27
[8]
Supra at para 10
[9]
Chirwa at para 30 & 34
[10]
108 of 19996
[11]
Nzwana judgment at par 31
[12]
Record page 26
[13]
Nzwana judgment par 37
[14]
Chirwa v Transnet Ltd and others 2008 (4) SA 367 (CC)
[15]
[2011] 2 All SA 185
(SCA)