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[2021] ZAGPPHC 309
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Consumer Goods and Services Ombud NPC and Another v Voltex (Pty) Ltd and Others (18096/2017) [2021] ZAGPPHC 309 (26 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO: 18096/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
CONSUMER
GOODS AND SERVICES OMBUD NPC First
Applicant
CONSUMER
GOODS AND SERVICES OMBUDSMAN
Second Applicant
And
VOLTEX
(PTY) LTD
First Respondent
MINISTER
OF TRADE AND INDUSTRY Second
Respondent
THE
CONSUMER GOODS COUNCIL Third
Respondent
ASTRAL
OPERATIONS LIMITED
Fourth Respondent
JUDGEMENT
STRIJDOM
AJ
Introduction
1.
This is an application for a
declaratory relief.
The
"
Ombud"
seeks
to
vindicate the
provisions
of
the
Consumer Goods
and
Services
Industry Code
(
"
the
Code
"
),
which was
promulgated
in
20
1
5
by
the
second
respondent ("the
Minister
"
)
purportedly
acting
on
the
recommendation of
the
National Consumer
Commission
("the
Commission").
The
Ombud
submits
that
the
declaratory
relief
is necessary
inter
alia
because
industry
suppliers
are not complying with its
provisions.
2.
The first and fourth respondents oppose the application, and
furthermore brought different counter-applications.
2.1
The first respondent ("Voltex") seeks an order for
repayment of
the
levies thus far paid to the Ombud in terms of the Code.
2.2
The fourth respondent ("Astral") challenges the validity of
the Code and asks that it be struck down.
Common
Cause
Facts
3.
The
following facts are common cause between the parti
e
s;
[1]
3.1 Publication of the
first draft of the Consumer Goods and Services Industry Code in the
Government Gazette 36439 by way of notice
No 451/13 for public
comment on 9 May 2013.
3.2
Publication of the second draft of the Consumer Goods and Services
Industry Code in the Government Gazette 38058 by way of notice
No
850/14 for public comment on 3 October 2014.
3.3
Publication of the final version of the Consumer Goods Services
Industry Code in the Government Gazette 38637 by way of Notice
No GNR
271 on 30 March 2015 (defined above as the Code).
3.4
The Code came into operation on the 29 April 2015.
3.5
In publishing the Code on 30 March 2015 the Minister purported to do
so in terms of section 82 of the Consumer Protection Act,
108 of 1996
("the Act").
3.6
The application was launched on 14 March 2017.
Issues
to
be Determined.
4.
Does the application fall to be dismissed by virtue of the
non-joinder of persons who have a material interest in the outcome
thereof.
5.
Whether or not the Code, in terms of which the first and second
applicants
have
purportedly been constituted, was lawfully and properly proclaimed by
the Minister in terms of section 82 of the Act.
6.
If it was not, then should the fourth respondents'
counter-application for the
setting
aside of the proclamation by the Minister of the Code succeed.
7.
In the event that the Code have been lawfully and properly proclaimed
by the Minister, then whether or not the content of the
Code is intra
or ultra vires the Ministers' powers under the Act.
8. In particular, in
relation to the aforegoing, whether or not the Minister can validly
proclaim a Code that provides for-
8.l
Compulsory membership of the first applicants by persons who do not
voluntarily undertake participation;
8.2The
levying, by the first and second applicant of membership levies or
fees and/or any other levies;
9.
In considering whether or not the substantive provisions of the Code
are intra or ultra vires the powers of the Minister, the
following
ancillary issues arise:
9.1
The proper interpretation of the Act;
9.2
Can the Minister proclaim the Code allowing for the levying of fees
in circumstances where the Act was not passed by the Legislature
as a
money bill;
9.3
Is there justification for a violation of section 18 of the
Constitution;
9.4
Is the power on the part of the first applicant to levy fees a
necessary incident of the other purposes and powers affording
the
Minister 's authority to proclaim the Code;
9.5
Does the proclamation of the Code give rise to jurisdictional
anomalies' and other conflicts, that would render the Ministers'
conduct irrational or unreasonable;
10.
.Do the applicants have standing to enforce compliance with the Code,
including in relation to compulsory membership and the
levying of
compulsory fees and other levies on the terms determined by the Board
of the first applicant, whether-
10.1 by instituting legal
proceedings, or
10.2
via the National Consumer Tribunal established under section 26 of
the National Credit act, 35 of 2005 or the National Consumer
Commission established under section 85 of the Act;
11.
Whether or not the Code as proclaimed by the Minister permits the
first and/or second applicants to levy the fees which they
have
purported to do in relation to the first or fourth respondents;
12.
In the
event that
the
answer
to the
aforegoing
is in
the
negative
then
whether or
not
the
first
respondent
is
entitled
to
repayment
of
the
R285 000.00
fee already
paid
by
it to
the first applicant;
[2]
13.
The issues in dispute are largely of a legal nature, requiring the
proper interpretation of the Act and the Code.
The
Salient Facts
14.
During 2012, the Consumer Goods Council of South Africa (CFCSA)
having identified a lacuna in the processing of complaints by
the
National Consumer Commission which was being swamped by complaints in
respect of the retail industry resolved to compile an
industry code
and set out to create a Consumer Goods and Services Ombud (CGSO) to
provide alternative Dispute Resolution services.
15.
This was in keeping with the purposes of the Consumer Protection Act
68 of 2008 (CPA).
16.
There was consultation with the major industry players and
organizations representing consumers. This was followed by the launch
of the (GSO) during March 2013.
17.
The draft Industry Code was published in the Government Gazette on 9
May 2013 and public comments were due on or before 31 May
2013. The
CGSO ombudsman was appointed in June 2013.
18.
Further consultations transpired taking into account the comments
received from the public participation and a second draft
Industry
Code was published for public comment in the Government Gazette of 3
October 2014. Comments were to be submitted not later
than 30 days
from date of publication.
19.
The Minister of Trade and Industry (The Minister), by regulation,
prescribed the Industry Code on the recommendation of the
National
Consumer Commission in terms of section 82(3) of the CPA in April
2015. The Consumer Goods and Services Ombud Scheme was
accredited on
29 April 2015.
20.
The Ombudsman felt it necessary to apply for this declaratory order
in order to encourage suppliers/ participants in the industry
to
register in terms of the Industry Code which some suppliers do not
consider binding on them and believe it to be ultra vires
the
Minister and /or contrary to section 77 of the Constitution.
The
Law.
21.
The purpose of the CPA, as stated in the Act, is:
"To
promote
a fair
accessible and sustainable
marketplac
e
for
consumer
prod
u
cts
and
services
and for tha
t
purpose to
establish
national norms
and
standards relating
to consumer protection.
to
provide
for
improved standards
of consumer
information, to
prohibit
certain unfair
marketing
and
business practices,
to promote
responsible
consumer
behavior,
to
promote
a
consistent
legislative
and enforcement
framework relating
to consumer transactions and
agreements, to
establish
the
national Consumer Commission."
22.
The preamble to the CPA provides that the people of South Africa
recognize that it is necessary to develop and employ innovative
means
to:
".
.
.
protect
the
interest
of all
consumers,
ensure accessible,
transparent
and efficient redress
for
consumers
who are
subjected
to
abuse
or
exploitation in
the
marketplace.
...
and
to
give effect to the international law obligations
of the
Republic, a
law
is to
be enacted
in
order
to
develop
effective
means
of
redress for
consumers."
23.
Section 82 of the CPA is the empowering provisions for the
accreditation of the CGSO which states that:
"(1)
in this section-
(a)
"industry
code" means a code-
(i)
regulating the
interaction
or
providing
for
alternative
dispute
resolution,
between
a
person
contemplated in subparagraph (i)
and consumers: and
(b)
"
proposal
" or
proposed
industry
code"
includes
any
existing scheme that
has
been
voluntarily
established
within
an
industry
to
regulate the conduct of
per sons conducting
business
within
that
industry.
(2)
The
Minister, by
regulation, may
(a)
prescribe
an
industry code
on
the
recommendation
of the
commission in terms of subsection (3);
or
(b)
withdraw all
or
part of
a
previously prescribed
industry
code, on
the recommendation
of the Commission
in
terms
of subsection
(5).
(3)
The
Commission,
acting on
its own
initiative,
or
in
response
to a
proposal
from
persons
conducting business
within
a particular
i
n
dustry, may recommend a
proposed
industry code to the
Minister
after-
(a)
publishing
th
e
proposed
industry
code for
public comment;
(b)
considering any submissions made during the public comment period;
(c)
consulting
with -(i)
persons
conducting
business
within
the
relevant
industry code as
published
or comment
,
·
(d)
making
any
revisions
to
the
proposed
industry
code
as published
/or comment;
(4)
An
industry code must be consistent with the
purpose
and policies
of the Act.
(5)
The
Commission-
(a)
on the request
of the Minister,
must
review
the effectiveness
of
an
industry code relative to
th
e
purpose
and
policies
of the
Act.
(b)
may otherwise conduct a review contemplated in
paragraph
(a)
at intervals of at least five years; and
(c)
after
conducting
a review
contemplated in this subsection,
and taking the steps required by subsection (3), may make
further
recommendations
to
the
Minister, including a
recommendation to
amend or
withdraw all
or
part
of
a
previously prescribed code.
(6)
lf-
(a)a
proposed industry code provides for
a scheme
of alternative
dispute resolution, and
(b)
the
Commission considers that the
scheme
is
adequately situated
and
equipped
to provide
alternative
dispute
resolution service
comparable
to those generally
provided
in terms of any
public
regulation,
the
Commission,
when
recommending
that code
to
the
Minister, may
also
recommend that
the
scheme be
accredited
as
an
"accredited industry ombud.
(7)
The
Commission-
(a)
must
monitor the
effectiveness of
any
industry
code
relative
to th
e
purposes
and policies
of this
Act,"
and
(b)
may reasonably require
p
ersons conducting
business within the
relevant industry to
provide
information
necessary
for
the
purpose of-
(i)
monitoring in terms o
f
paragraph
(a)
or
(ii)
a review in terms of subsection
5.
(8)
A supplier must not, in the ordinary course of business contravene
an
applicable indust7y code."
The
first Respondent Submissions.
24.
The submissions made by the first respondent can be summarized as
follows:
24.1
The CGSO's powers arising from its accreditation by the Minister are
purely a matter of interpretation of section 82 of the
CPA. The CPA
was not passed as a money bill. It contains no express
provisions authorizing the imposition of levies or providing
for
compulsory membership.
24.2
Nothing in the text, context, or purpose of section 82 of the CPA
empowers the CGSO to insist upon compulsory participation
or payment
of levies.
24.3
The text of section 82 on its own indicates that participation in
accredited industry ombuds is voluntarily. This is apparent
from the
definition of the proposals in section 82 (1) which forms the
foundation of the accreditation.
24.4
If the Legislature intended compulsory participation, it would have
said so in express terms. This is especially so in circumstances
where compulsory participation offends against rights of freedom of
association enshrined in section 18 of the Constitution of
the
Republic of South Africa, 1996. (The Constitution).
24.5
The omission of (1) express provisions requiring participation, and
(ii) prov1s1ons for resolving jurisdictional demarcation
disputes
points towards a system of voluntary (contractual) participation in
self regulation .
24.6
This construction is consistent with the context and purpose of the
CPA. Accreditation unlocks the ombudsmans' power to adjudicate
disputes within its industry, as provided for in sections 69 and 70
of the CPA. Both of these sections contemplate voluntary
participation by suppliers.
24.7
Consequently, any provisions of the code that render participation in
its mandatory, are ultra vires the CPA. In effect, the
CGSO usurps
powers and jurisdiction that are not afforded to it in the CPA. The
Minister was not empowered to promulgate
a code that provides for
this.
The
Second Respondents' Submissions.
25.
It is submitted by the second respondent that the declaratory relief
sought by the applicants is justified and that the respective
counter-applications should be dismissed.
The
Third Respondent.
26.
The third
respondent withdrew its opposition to the applicants' application.
[3]
The
Fourth Respondents' Submissions.
27.The
submission s made by the fourth respondent can be summarized as
follows:
27.1
There is no evidence that consultation took place.
27.2
Astral contends that the Minister is only authorized to prescribe a
Code for purposes of regulating the issues listed and nothing
else.
27.3
Astral contends that the Code, is ultra vires the CPA. It further
contends that the Code is unconstitutional and unlawful for
the
reasons that the Code is alleged to be irrational.
27.4
Astral also contends that the Ministers' decision was unlawful on the
basis of unreasonableness .
27.5
Astral takes issue with the reference to the factor of "relative
market share" as a valid consideration in determining
the
joining fee.
27.6 Astral finally
contends that the application should fall to be dismissed by virtue
of non joinder of persons who have a material
interest in the outcome
of this application.
Non
joinder
.
28.
The fourth respondent avers that the relief sought in paragraphs 2, 3
and 4 of the applicants' amended Notice of motion, if
granted would
purport to apply against "participants" who are not before
the Court.
29.
The fourth
respondent was
joined by
their own request, after the launching of
this
application and after publications of Notice in four major newspaper.
[4]
30.
"
Participants"
are
defined in
the
Consumer
Goods
and
Services
Code
of Conduct
as an entity operating within the Consumer Goods Industry, which is
all 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 4.1 and 4.4
of the
Code.
[5]
31.
The third respondent was joined as a means of notifying the greater
consumer goods and services industry who are members of
the third
respondent. It was submitted by the applicants that it would have
been inconvenient, costly and unnecessary for a cash
strapped Ombud
to join each of these members or the entire Consumer Goods and
Services Industry. The participants within the consumer
goods and
services industry have become aware of the application and could have
applied to be joined as they so wished.
32.
It
is trite
law
that
the joinder
of
a party
is
only
required
as
a
matter
of
necessity-
as
opposed
to
a
matter
of
convenience-if
that
party
has
a
direct
and
sub
s
tantial
interest
which
may
be
affected
pr
e
judicially
by the
judgment
of the
court
in the
proceedings
concerned.
The mere
fact that
a party
may
have an
interest
in
the
outcome
of
the
litigation
does
not
warrant a
non-
joinder
plea.
The
objection
that
other
parties
should
have
been joined
to
the
proceedings,
has thus
been
held
to
be
a
l
imited
one.
[6]
33.
In my view there is no merit in the fourth respondents' contention
that the application should be dismissed by virtue of non
joinder of
persons who might have a material interest in the outcome of this
application.
Interpretation
Of The Act.
34.
The first and fourth respondents do not question the validity of the
CPA.
35.
It was
stated in
Natal
Joint
Municipal Pension Fund
v
Endumeni
Municipality
[7]
that:
"...
consideration
must
be
given
to
the
language
used
in
the
light
of
the ordinary
rules
of
grammar
and
syntax,
the
context
in which
the provision
appears,
the
apparent
purpose
to
which it
is
directed
and the material known to
those
responsible
for
its production. Where more
than
one
meaning
is possible
eac
h
possibility
must be
weighed
in the light of
all these
factors.
The
process
is
objective not subjective. A
sensible meaning is to be
preferred
to one that leads to insensible
results or undermines the
apparent
purpose
of the documents.”
36.
In
Cool
Ideas 1186 CC v Hubbard
[8]
lt
was
stated that:
"A
fundamental
tenet
of
statutory
interpretation
is
that
the
words
in a
statute must b
e
given
their ordinary
grammatical meaning, unless to
do
so
would result in
absurdity.
There
are three important interrelated riders to
this
general
principle namely:
(a)
the statutory provision should always be interpreted purposively,·
(b)
the relevant statutory provisions must be properly
contextualised,·and
(c)
all statutes
must
be construed
consistently with the Constitution, that
is
,
where
reasonab
l
y
possible,
legislative
provisions
ought
to
be
interpreted
t
o
preserve their constitutional
validity. Thi
s
proviso to
the
general
principle
is
closely
related
to
the
purposive
approach
referred
to
in
(a). "
37.
The preamble of the CPA provides that the CPA was promulgated on the
basis that "[t]he people of South Africa recognized
... [t]hat
it is necessary to develop and employ innovative means to give effect
to internationally recognized customer rights,
and that the CPA was
promulgated to "give effect to the international law obligations
of the Republic."
38.
Section 2(1) provides that its provisions must be interpreted
purposively. 39.Section 3(1) (b) of the CPPA states as follows:
"
3
(1)
The purpose of the Act
are t
o
promote and
advance
the social
and
economic
welfare
of consumers
in South
Africa by-
(c) Reducing and
ameliorating any disadvantages experienced in accessing any supply of
goods or services by consumers-
(i)
who
are
law-income
persons
or
persons
comprising law- 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
usual
representation is limited by
reason of law
literacy, vision impairment or
limited fluency
in
the
language
in
which
the
representation
is
produced,
published
or presented'.
40.
Section 4, headed 'the realisation of consumer rights', contains
provisions relevant to the manner in which the act must be
interpreted.
Section
18 Of The Constitution.
41.
In
most
constitutional
jurisdictions
the
State
is entitled
to
place
substantial
burdens
upon
economic
association.
[9]
The primary
reasons
is that
business
associations
choices
the
distribution
of
important
social
(public)
goods
and
must be
subject to fair play.
42.
Where
existing
regulations
strike
far
into
the
heart
of
an
associations
membership policies or
limit the
associational
choices of
an
individual, a constitutional attack
is
more
likely to
be
based upon
infringements
of
the rights
to trade
or
occupation
or the
right
to
property.
[10]
Money
Bills.
43.
Section 77 of the Constitution defines a money bill a follows:
"
A
bill is a money bill if
it:
(a)Appropriates
money;
(b)
Imposes
national
taxes,
levies or surcharges;
(c)
Abolishes or reduces, or grants exemption from any national taxes,
levies, duties or surcharges; or
(
d
)Authorizes
direct
charges
against
the
National
Revenue
Fund,
except
a BUI envisaged
in section
214
authorizing
direct
charges."
44.
It was submitted by the applicants that the CPA is not a money bill
and that Section 77 of the Constitution deals with money
bills.
45.
The industry code was created by Regulation and in my view is not a
bill which requires a much more stringent process. The CPA
is not a
money bill as it is not an appropriation bill which parliament is
requested to authorize the raising of national taxes
and the spending
of public funds. Neither is the National treasury or the National
Revenue Fund affected by the fees raised to
fund an industry code.
Jurisdiction
Of
CGSO.
46.
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 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.
47.
Participant" is defined as 'an entity' operating within the
industry bound by the Code unless expressly excluded by clause
4.4.
48.
The exclusions are:
48.1
transactions that are not covered by the CPA or that are governed by
other public regulation;
48.2
the automotive industry;
48.3
electronic communications services as defined in
section 1
of the
Electronic Communications Act 36 of 2005
; and
48.4
transactions with organs of state or financial institutions.
49.
The jurisdiction of the CGSO is limited in respect of:
49.1
Amounts involved: The CGSO may not consider a complaint by a juristic
person whose asset value or annual turnover equals or
exceeds the
threshold amount determined from time to time by the Minister in
terms of section (6) (1) of the CPA.
49.2
Time limit: The CGSO may not consider a complaint or dispute that
relates to an act or omission which occurred before 1 April
2011 or,
in any event, more than 3 (three) years prior to the date when the
complaint was lodged with the CGSO.
49.3
Other processes: the CGSO may not consider a complaint or
dispute that-
49.3.1falls
within the jurisdiction of any other Ombud within jurisdiction
; or
49.3.2 is based on
the same event and facts as any matter which is, was, or becomes, the
subject of any proceedings in any
court, tribunal or regulatory body
or any Ombud with jurisdiction of any jurisdiction; or
49.3.3
could more appropriately be dealt with by the police a court of law,
by any regulatory body or through any other dispute
resolution
process.
50.
In my view there are no anomalies as alluded by the first respondent.
The
Industry
Code.
51.
The fourth respondent in its counter claim seeks an order to the
effect that the Minister decision to enact the Code was
unconstitutional
and unlawful and should be set aside.
52.
The Commissions' recommendation is presumptively valid, as it is not
challenged in these proceedings. After receipt of the recommendation,
the Minister received further advice on the Commissions'
recommendation, jointly from various officials within the Department
of Trade and Industry ("dti").
53.
On
1
6
February
2015,
the
dti
expressly
confirmed
that the
process
followed
complied
with
the
requirements
of
the
CPA,
as
set
out
in
the
confidential
Submissions of the dti.
[11]
54.
The
Ministers'
decision
to
enact
the
Code
was
made
acting
on
the
recommendations that he
was
furnished with by the
Commission.
The Minister
confirms
in
his
answering
affidavit
that
he
was
satisfied
that
there
had
been
an
"
extensive
public"
comment
and
participation
process
"
,
and
the
code
"
enjoys
widespread
support
from
stakeholders
in
the
industry."
[12]
55.
The CPA sets out the procedure to be followed when an industry code
is to be prescribed and an Ombud accredited.
56.
While the lawfulness of the Code is disputed, neither the First or
Fourth respondent made any objection during the public participation
process.
57.
The fourth respondent failed to take the process on review which
would have afforded it access to the record which would have
been
made available in terms of review proceedings under Rule 53.
58.
"It has
been stated
that
where
a
party
can,
with
ordinary
diligence,
ascertain
his
rights,
he
cannot
remain
supine
for
an
indeterminate
period
and
seek
to enforce
his
rights
when
it
suits him:
it
is public
policy
to
have
finality
in the
affairs
of
men.
The
maxim
vigilantibus
non
dormientibus
jura
subven
i
unt,
which
is of
general
application,
is equally
applicable
here.
Courts
of
justice
should
not
come to the
aid
of parties
who
slept on
there
rights
.
"
[13]
59.
The Ministers' enactment of the Code constitutes an exercise of his
regulation making discretion, vested in the Minister by
the
provisions of the CPA.
60.
It was
stated in
A
l
butt
v Centre for
the
Study of
Violence
and
Reconciliation
and
Others
[14]
that;
"The
executive has a wide discretion in selecting the means to achieve its
conditionally permissible objectives. Courts may
not interfere with
the means selected simply because they do not like them, because
there are other more appropriate means that
could have been selected.
But, where the decision is challenged on the grounds of rationality,
courts are obliged to examine the
means selected to determine whether
they are rationally related to the objectives sought to be
achieved. What must be stressed
is that the purpose of the enquiry is
to determine not whether there are other means that could have been
used, but whether the
means selected are rationally related to the
objective sought to be achieved."
61.
Section 82(4) states that any industry code must be consistent with
the purpose and policies of this Act.
62.
Section 120 of the CPA is aimed at providing the Minister with the
necessary regulatory powers to make regulations where specifically
required in the Act or ingeneral to ensure the efficient functioning
of the Act. Like all regulatory powers, these are subordinate
delegated legislative powers which must comply with the provisions of
the Act and may not contradict the Act.
63.
.In order to bring the Code into operation, the Minister had to
decide how the model of the Ombud-or "alternative
dispute resolution agent" would be
funded. The Minister was required to make this decision because
the
CPA expressly regulates the manner in which the Commission
shall be funded, and it is trite principle of statutory
interpretation
that expressia unuis est exclusio alterius.
64.
ln
Makhasa,
[15]
the Appellate Division held that a
power
would
be implied
by legislation
"where
an enactment
expressly
permits
achieving
a certain
result."
In
those
circumstance
s
,
Grosskoph,
JA
held
that
the statute
will
also
be interpreted to permit
"everything
necessary
to
achieve
the
result
by
implication."
65.
In
Mohamed
[16]
The Constitutional
Court
held that
a
power would
be implied
where
it
was
"necessary
i
n
order
to
realise the
ostensible
legislative
intention
or to
make
the
[Statute]
workable.
66.
The
implication
of an
implied
power on
the Ministers'
part
would
meet the
definition that
Hoexter
proposes:
"Implied
powers may
...
be
ancillary
to
the
express
powers, or
exist
either
as
a
necessary
or reasonable consequence of the
expres
s
powers.
Thus
'what
is reasonably
incidental
to
the
proper
carrying
out
of
an authorized act must be considered as implied authorised'
'
.
Just
as the power
to
make omelettes
must
necessarily
include
the
power
to
break eggs, so th
e
power
to
build the dam, includes th
e
power
to
expropriate
property
or
to remove silt.
"
[17]
67.
The
National
Consumer
Commission
published
guidelines
for
the
development
of industry
codes
of conduct
for
accreditation
under the
CPA.
[18]
In
Part
C
of
the
guidelines
it
sets
out
the
sustainable
fun
d
ing
model
for
the
code:
"(i) A code
of conduct must propose a funding model for
the maintenance and effective operation
of the office of the Ombud;
(ii)
Provision
must
be made in the cod
e
for
collection
of fees
from
all suppliers
demarcated
into the
industry and
who
voluntarily subscribe
to the Ombud.
(iii) Effect of non
payment of fee (provision on effect of non payment which may be
appropriate and effective within the industry).
(iv)
Automatic
annual
increase of
fee (mechanism automatic rise infee);
(v)
Fees
may be billed to none subscribing
suppliers,
within the accredited industry code
value chain or demarcation, for
Ombud
services
rendered.
(vi)
The
above
proposed
principles
of fun
ding model are
simply suggestive to industry codes in nature;
they are
by no means prescriptive. These principles
are intended
to ensure independence
and transparency regarding
operations of an
accredited Ombud scheme.
68.
In my view, the Code for the CGSO was drafted in accordance with the
above guidelines and was within the Ministers' powers in
terms of the
Act.
Voluntary
Participation
In the Code.
69.
Section 82(1) (b) provides;
"proposal" or
proposed industry code
"
includes any existing scheme that has been voluntarily
established within an industry to regulate the conduct of persons
conducting
business within that industry."
70.
A
proper
interpretation
of
Section
82(1) (b)
is that
an
existing
scheme
which
has
been
voluntarily
established
with the industry
will
also be
included.
[19]
71.
The Section does not stipulate that members of a particular industry
must first agree to be bound by the industry code. It means
that if
there is a scheme that already exists and if it is was voluntarily
established, it is not precluded from the industry code.
In terms of
the guidelines for drafting the codes, the code should be made
mandatory for all suppliers belonging to the industry.
Conclusion.
72.
In conclusion I am of the view that a proper case has been made out
by the applicants for a declaratory order based on the following
primary findings;
72.1
The jurisdictional prerequisites are established on the evidence
before me;
72.2
The code is not irrational or unreasonable;
72.3
The power to levy a fee is not ultra vires the Ministers' powers
under the CPA·
72.4
The decision is not vitiated by irrelevant considerations;
72.5
The power to levy a fee is necessary and incidental;
72.6
The code is mandatory for all suppliers belonging to the industry;
73.
The counter application of voltex is based on the principle of unjust
enrichment. The general requirements to found a successful
claim for
enrichment are threefold:
73.1
The defendant must have been enriched, and the plaintiff must have
been impoverished;
73.2
There must be a causal link between the enrichment and impoverishment
, in that the defendant must have been enriched at the
expense of the
plaintiff;
73.3
The defendants ' enrichment must be unjustified, or sine causa;
74.
What
is
fatal to
the
counter-application
is
that the
'legal
basis"
for the
payments
is
the
Code,
which
Voltex
has
elected
not
to
challenge
in
these
proceedings.
[20]
75.
In the result, the following order is made:
75.1
A declaratory order is granted with prayers 1,2,3,4,5,6 and 7.1, 7.2
and
8
of the amended notice of motion.
75.2
The counter-application of the first respondent is dismissed with
costs.
75.3
The counter-application of the fourth
respondent is dismissed with costs.
STRIJDOM
JJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of Hearing: 3 February 2021
Date
of Judgement: 26 March 2021
Delivered:
This
judgement
was
prepared
and
authored
by
the
Judge
whose
name
is
reflected
and
is
handed down electronically
by circulation to
the
parties/their
legal representatives by
email
and
by
uploading it
to
the
electronic file
of
this
matter
on CaseLines.
The date for
hand-down is deemed to be 26 March 2021.
Appearances:
COUNSEL
FOR APPLICANTS
ADV N GAFFOOR
Attorney
for the first and second Applicants:
HAHN &HAHN
COUNSEL
FOR THE FIRST RESPONDENT: ADV BE LEECH SC
INSTRUCTED
BY:
STATE ATTORNEY
FOR
THE FOURTH RESPONDENT:
ADV M
STUBBS
INSTRUCTED
BY :
CLIFF DEKKER HOFMEYER INC
[1]
V
ide:
Joint
Practice
Note,
Caselines
p024-
1
to
5
[2]
Vide: Joint Practice Note,Caselines pp 024-6 to 8
[3]
Vide :
Suppplementary
Affidavit,
caselines
p
0
1
6-4
[4]
Vide: Caselines,p 005-
1
to
2 and 002-
1
to
4 002-
1
to
002-
1
0.
[5]
Clause
3.1
.29 read
with Clause 3.1.21and
3
.
1
.10
of the
Code
[6]
Rosebank Mall (Pty) Ltd vs Cradock Heights (Pty) Ltd 2004(2) SA 353
W
[7]
2012 (2) ALL SA 262 (SCA)
[8]
20
1
4
(8) BCLR 869 (CC)
[9]
Oostelike Gauteng Diensteraad
v
Transvaalse
munisipale
Pensioenfonds
en 'n
ander
1
997
{8)
BCLR
1
066,
1
077
G
[10]
Bill
of
Rights, Handbook,lain
Currie
&
Johan De
Waal Sixth
edition p
4
1
0
[11]
Vide:
Annexure
02 paras
3.3 and
3.4
vol
5
p
445
[12]
Vide
:Answering
affidavit
para
7
vol
4
pages
297-298
[13]
Vide: Wolgroeiers Afslaers (
Edms) Bpk
v Munivan Kaapstad
1
978(1)
SA
1
3
(A).
[14]
2010 (3) SA 293 (CC).
[15]
M
a
khasa
v Minister of Law and Order, Lebowa Government
1
988
(3) SA 701
(A).
[16]
National
Director
of Public Prosecutions & Another
v
Mohamed
NO &
Others
2003
(4) SA
1
CC
[17]
Hoexster, Administrative
Law in Sa
(2ed:2012) at 43 to 44
[18]
Guidelines for the Development in
I
ndustry
Codes of Conduct Act 68/2008 GN 4
1
5
in GG 35375 of 23 May 20
[19]
Section 2(7) of
the Act,
confirms that the use of
the
words
'includes' or including' in
relation
to a list
means
that
the
list
is
not
closed.
[20]
Voltexs'
JOA at
para 78