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[2021] ZASCA 91
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Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others (314/2020) [2021] ZASCA 91; 2022 (1) SA 377 (SCA) (25 June 2021)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 314/2020
In the matter between:
LEWIS
STORES (PTY)
LTD
APPELLANT
and
SUMMIT
FINANCIAL PARTNERS
FIRST
RESPONDENT
(PTY)
LTD
THE NATIONAL
CONSUMER
SECOND
RESPONDENT
TRIBUNAL
THE NATIONAL CREDIT
THIRD
RESPONDENT
REGULATOR
Neutral
citation:
Lewis
Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others
(Case no 314/2020)
[2021] ZASCA 91
(25
June 2021)
Coram:
PONNAN, WALLIS, MOCUMIE and DLODLO JJA, and
EKSTEEN AJA
Heard
:
5 May 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to
be have been at 10h00 on 25 June
2021.
Summary:
National Credit Act 34 of 2005
–
section
141(1)
(b)
–
power of National Consumer Tribunal to grant leave to refer a
complaint directly to it when National Credit Regulator has
issued a
notice of non-referral – nature of proceeding – section
does not require formal application nor public hearing
–
factors to be considered by Tribunal – Tribunal has wide
discretion – decision to grant leave to refer directly
not
appealable in terms of
section 148(2).
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Molefe J
and Khumalo AJ sitting as
court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Eksteen
AJA (Ponnan, Wallis, Mocumie and Dlodlo JJA concurring)
[1]
This appeal concerns the interpretation and application of the
National Credit Act
(NCA),
[1]
and in particular s 141(1)
(b)
[2]
and s 148(2)
(b)
[3]
thereof. The first respondent, Summit Financial Partners (Pty) Ltd
(Summit), a registered alternative dispute resolution agent
and debt
counsellor, lodged a complaint (the complaint) against the appellant,
Lewis Stores (Pty) Ltd (Lewis), with the third respondent,
the
National Credit Regulator (the Regulator), in terms of s 136 of the
NCA. The Regulator accepted the complaint and, after investigating
the allegations, it issued a certificate of non-referral, purportedly
in terms of s 139(1)
(a)
of
the NCA.
[4]
Summit sought leave
to refer the complaint directly to the second respondent, the
National Consumer Tribunal (the Tribunal), in
terms of s 141(1)
(b)
of
the NCA, which Lewis resisted. The Tribunal granted leave
[5]
and Lewis appealed against the ruling, without success, to the High
Court, Pretoria, in terms of s 148(2) of the NCA. The appeal
to this
Court is with leave of the high court.
[2]
Lewis is a national retailer in furniture and electrical appliances.
On 16 September
2016 Summit lodged the complaint with the
Regulator, alleging that Lewis had repeatedly engaged in a prohibited
practice under
the NCA, in breach of s 102 thereof, by raising
compulsory and unreasonable delivery charges in respect of goods
sold.
[3]
In an application for leave to refer the complaint directly to the
Tribunal, Summit
contended that the referral was justified as the
complaint raised issues of great importance to the parties and the
public, which
deal with the interpretation of the NCA, and that it
enjoyed reasonable prospects of success. Lewis, on the other hand,
denied
that Summit had demonstrated good prospects of success. It
contended further that Summit had no interest of its own in the
outcome
of the matter and it enjoyed no mandate from any of Lewis’s
customers. In the high court Summit contended, without success,
that the decision of the Tribunal was not appealable. The high court
nevertheless dismissed the appeal.
[4]
In this Court three issues arose. Firstly, whether a decision of the
Tribunal to permit
a direct referral to it in terms of s 141(1)
(b)
of the NCA is appealable in terms of s 148(2) of the NCA; secondly,
what test should the Tribunal have applied in assessing the
application; and thirdly, whether Summit had satisfied the
test.
[5]
Section 48(2)
(b)
of the NCA provides that:
(2) ‘… a
participant in a hearing before a full panel of the Tribunal may –
…
(
b
)
appeal to the High Court against the decision of the Tribunal in that
matter, other than a decision in terms of section 138…
.’
[6]
[6]
Lewis contended that it had participated in a hearing before the full
panel of the
Tribunal and it was therefore entitled to appeal against
its decision. Summit, on the other hand, contended that on a proper
construction
of the provisions of the NCA the proceedings before the
Tribunal did not involve ‘a hearing’ as contemplated in s
148(2)
(b)
;
and, that the grant of leave to refer directly did not constitute ‘a
decision’ that is susceptible to appeal. The
argument involves
the interpretation of the NCA, a task which this court has described
as ‘a particularly trying exercise’
[7]
.
[7]
I turn to consider the structure of the relevant portion of the NCA.
The functions
of the Tribunal are described in s 27 of the NCA. It is
empowered, in addition to any other power conferred on it by law, to:
‘
adjudicate
in relation to any:
(i)
application that may be made to it in terms of the [NCA], and make
any order provided for in the [NCA] in respect of such an
application; or
(ii)
allegations of prohibited conduct ...’.
In
addition, it may make a costs order in terms of s 147 of the NCA. I
shall revert to s 147.
[8]
The complaints procedures are contained in Chapter 7 of the NCA. Any
person may submit
a complaint to the Regulator.
[8]
Upon
acceptance thereof the Regulator may immediately issue a notice of
non-referral, without investigating the issue, if the complaint
appears to be frivolous or vexatious, or does not allege any facts
which, if true, would constitute grounds for a remedy under
the
NCA,
[9]
or it may refer the
complaint to a debt counsellor or an ombud with jurisdiction in
certain circumstances.
[10]
It
may also direct an inspector to investigate the complaint,
[11]
which the inspector is required to do ‘as quickly as
practicable’.
[12]
The
NCA confers investigative powers on such an inspector to enable him
or her to come to a decision on the complaint.
[9]
At the conclusion of the investigation, the Regulator may, amongst
other options,
issue a notice of non-referral
[13]
or refer the matter to a consumer court or to the Tribunal.
[14]
The NCA makes no provision for any party to challenge the referral,
however, in the case of a referral to a consumer court they
may, by
application to the Tribunal, challenge the appropriateness of the
forum chosen.
[15]
[10]
In this case, the Regulator accepted the complaint and investigated
the matter. It issued a certificate
of non-referral, purportedly in
terms of s 139(1)
(a).
Prima facie
,
it seems to me, the notice of non-referral was in substance one
issued in terms of s 140(1)
(a),
on
the completion of the investigation. Nothing turns on this aspect.
[11]
Where the Regulator has issued a notice of non-referral, a
complainant is, nevertheless, entitled,
as of right, to refer the
complaint directly to a consumer court having jurisdiction or, with
the leave of the Tribunal, to the
Tribunal.
[16]
Where a complainant chooses (and is permitted) to refer a complaint
directly, in terms of s 141(1)(
b
)
to the Tribunal, in the face of a certificate of non-referral, they
expose themselves to the risk of an adverse costs order in
terms of s
147, in the event of the complainant’s direct referral not
being upheld.
[17]
[12]
Again, the NCA does not provide for a challenge to a complainant’s
direct referral. However,
where the complainant has referred the
matter directly to a consumer court, a respondent may, by application
to the Tribunal, seek
an order that the matter be referred to a
different consumer court, or to the Tribunal itself. Once a matter
has been properly
referred to the Tribunal, whether by the Regulator
in terms of s 140(2) or by a complainant in terms of s 141(1)
(b)
,
the Tribunal is required to conduct a hearing into the matter
referred to it.
[18]
In
contrast to s 140(4) and s 141(2), s 141(1)
(b)
makes
no reference to an ‘application’ or a hearing when
seeking leave to refer a complaint directly to the Tribunal.
[13]
Part D of Chapter 7 of the NCA relates to the consideration by the
Tribunal of ‘complaints,
applications and referrals’.
Section 142 sets out the powers and obligations of the Tribunal in
conducting a hearing. It
is required to do so in public, in an
inquisitorial manner, as expeditiously and informally as possible and
in accordance with
the rules of natural justice.
[19]
Certain matters may be delegated to a single member of the
Tribunal.
[20]
At the
conclusion of a hearing the Tribunal is obliged to make an order
‘permitted in the circumstances in terms of [the
NCA]’
and must issue written reasons for its decision.
[21]
Section 150 of the NCA relates to orders of the Tribunal. It
provides:
‘
In
addition to its other powers in terms of this Act, the Tribunal may
make an appropriate order in relation to prohibited conduct
or
required conduct in terms of this Act…’
It
proceeds to list various orders culminating in a catch all provision
relating to ‘any other appropriate order required
to give
effect to a right, contemplated in this Act…’
[14]
The Tribunal, in the assessment of the application for leave,
remarked: ‘[T]he NCA does
not specify the factors which the
Tribunal must consider in determining whether an applicant should be
granted leave to self-refer
the matter. In previous decisions; the
Tribunal has referred to
Westinghouse
Brake & Equipment (Pty) Ltd
[22]
where the court was dealing with the issue of leave to appeal against
a judgment. In
Westinghouse
,
the court held that the relevant criteria are whether the applicant
has reasonable prospects of success on appeal; and whether
or not the
case was of substantial importance to the applicant or both to him
and the respondent.
The Tribunal when
considering whether to grant an applicant leave to refer has adopted
the same test, as applied in the High [Court];
for applications for
“leave”. The Tribunal will therefore consider the
following factors:
1. Whether the matter is
of substantial importance to the applicant; and
2.
The applicant’s reasonable prospects of success with the
referral’.
[15]
The reference to
Westinghouse
,
and the test applied in applications for leave to appeal, is
inappropriate. As I have explained, the NCA provides for an
expeditious,
informal and cost-effective complaints procedure.
[23]
Section 141(1)
(b)
confers
on the Tribunal a wide, largely unfettered discretion to permit a
direct referral. The NCA does not require a formal application
to be
made and it is not necessary for purposes of the present appeal, nor
is it desirable, to circumscribe the factors to which
the Tribunal
should have regard. There is no test to be applied in deciding
whether or not to grant a direct referral to it in
respect of a
complaint. The purpose of the provision is simply for the Tribunal to
consider the complaint afresh, with the benefit
of any findings by
the Regulator, and to decide whether it deserves its attention.
Circumstances which may influence its decision
may include the
prospects of success, the importance of the issue, the public
interest to have a decision on the matter, the allocation
of
resources, the complainant’s interest in the relief sought and
the fact that the Regulator did not consider that it merited
a
hearing before the Tribunal. The list is not intended to be
exhaustive.
[16]
As I have said, s 141(1)
(b)
does not contemplate a formal application, nor a public hearing. It
involves merely a reconsideration of the ruling by the Regulator.
The
informal adjudication of such issues is not unprecedented. Petitions
for leave to appeal in the Constitutional Court, this
Court, the
Labour Appeal Court and the high court, where a court has refused
leave, are generally considered in chambers, without
any appearance
by legal representatives. Moreover, the ruling which the Tribunal is
required to make under s 141(1)
(b)
is
not a ‘decision’, nor an ‘order’ referred to
in s 150. Rather, it involves the exercise of its’
‘other
powers’ contemplated in s 27 and s 150. Accordingly, on a
proper construction of the NCA, the grant of leave
to refer a
complaint directly to the Tribunal is not a ‘decision’
which must be arrived at in a hearing, and it is
not susceptible to
an appeal in terms of s 148 of the NCA.
[17]
On behalf of Summit, Mr Newdigate alluded to the general rule that,
traditionally, in conventional
litigation, a decision is appealable
if it is final and disposes of a material portion of a dispute
between the parties. Accordingly,
it has been held, that an order in
relation to the forum in which proceedings are to be conducted, is
not final and was therefore
not appealable.
[24]
More recently, this court has adopted a more pragmatic approach to
appealability. Thus, in
Beinash
[25]
this court stated: ‘the emphasis is now rather on whether an
appeal will necessarily lead to a more expeditious and cost
effective
final determination of the main dispute between the parties and, as
such, will decisively contribute to its final resolution.’
[18]
In
King
[26]
it explained that: ‘[W]hile the classification of the order
might at one time have been considered to be determinative of
whether
it was susceptible to an appeal the approach that has been taken by
the courts in more recent times has been increasingly
flexible and
pragmatic. It has been directed more to doing what is appropriate in
the particular circumstances than to elevating
the distinction,
between orders that are appealable and those that are not, to one of
principle’.
[19]
Whether there is an appeal in this case depends on the proper
construction of s 148(2)(
b
)
of the NCA. In my opinion it does not provide for one. The provisions
of the NCA, as I have emphasized, requires a quick informal
resolution of complaints. The notion of an appeal to the high court
against a ruling by the Tribunal to allow a direct referral
of a
complaint to it is contrary to the purpose of the NCA. The conclusion
to which I have come in respect of the construction
of the NCA
accords with the approach of the courts to appeals generally, which
militates against appeals which do not contribute
to the expeditious
and cost effective final determination of the main dispute between
the parties.
[20]
By virtue of the conclusion to which I have come in respect of the
appealability of the ruling
by the Tribunal it is not necessary to
consider the merits of the individual complaints raised.
[21]
In the result, the appeal is dismissed with costs, including the
costs of two counsel.
J EKSTEEN
ACTING
JUDGE OF APPEAL
Appearances
For appellant:
A Cockrell SC (with P Farlam)
Instructed by:
Edward Nathan Sonnebergs Inc, Cape Town
Lovius
Block, Bloemfontein
For respondent:
JA Newdigate SC (with HN De Wet)
Instructed by:
Carstens Gericke Attorneys, Stellenbosch
Webbers,
Bloemfontein
[1]
National
Credit Act No
34
of 2005
.
[2]
The
direct referral of a complaint to the National Consumer Tribunal
when the National Credit Regulator has issued a certificate
of
non-referral. The section provides:
‘
141(1)
If the National Credit Regulator issues a notice of non-referral in
response to a complaint other than a complaint concerning
section 61
or an offence in terms of this Act, the complainant concerned may
refer the matter directly to-
…
;or
(
b
)
the Tribunal, with the leave of the Tribunal.’
[3]
Appeals
against orders of the National Consumer Tribunal. The relevant part
of the section is set out in paragraph 5 of the judgment.
[4]
Section
139
provides for the Regulator to ‘issue a notice of
non-referral to the complainant if the complaint appears to be
frivolous
or vexatious, or does not allege any facts which, if true,
would constitute grounds for a remedy under the Act.
[5]
The
Tribunal was divided as to the extent of the consent, a minority
considered that not all the complaints where leave was sought
by
Summit should be referred to the Tribunal.
[6]
Section
138
relates to consent orders. A useful discussion on the nature of
appeal proceedings in the high court was set out in
National
Credit Regulator v Lewis Stores (Pty) Ltd & Another
[2019] ZASCA 190
; 2020(2) SA 390 (SCA);
[2020] 2 All SA 31
(SCA)
paras 40-55.
[7]
Nedbank
v National Credit Regulator
2011
(3) SA 581
(SCA) at para 2.
[8]
Section
136.
[9]
Section
139(1)
(a)
.
[10]
Section
139(1)
(b)
.
[11]
Section
139(1)
(c)
.
[12]
Section
139(1)
(c)
.
[13]
Section
140(1)
(a).
[14]
Section
140(1)
(b)
and
(2).
[15]
Section
140(4)
and (5).
[16]
Section
141(1)
(a).
[17]
Section
147(1)
provides that each party participating in a hearing must bear
its own costs. In terms of 147(2)
(a)
,
if the Tribunal has not made a finding against a respondent, the
member of the Tribunal presiding at the hearing may award costs
to a
respondent and against a complainant who referred the complaint in
terms of 141(1).
[18]
Section
141(3)
and (4).
[19]
Section
142(1).
[20]
Section
142(3).
[21]
Section
142(4).
[22]
Westinghouse
Brake and Another v Bilger Engineering (Pty) Ltd
[1986]
ZASCA 10
; 1986 (2) SCA 555 (A).
[23]
Section
139
(c)
and
142
(b)
of the NCA.
[24]
United
Motor Services Ltd v Cloth Manufacturing Co of Chicago
1937
CPD 284.
[25]
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
SCA at 730 E.
[26]
National
Director of Public Prosecutions v King
2010(2)
SACR 146 (SCA) at 166-167.