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[2018] ZANCHC 23
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Dipico v Imperial Group Limited t/a Cargo Motors Klerksdorp and Another (2212/2017) [2018] ZANCHC 23 (25 April 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO: 2212/2017
DATE
HEARD: 16 APRIL 2018
DATE
DELIVERED:
25
APRIL 2018
In
the matter between:
DIPICO,
TEBOGO
LESLEY
Applicant
and
IMPERIAL
GROUP LIMITED t/a CARGO MOTORS
KLERKSDORP
1
st
Respondent
THE
CHAIRMAN: NORTHERN CAPE CONSUMER
COURT
2
nd
Respondent
Coram:
Olivier
J
et
Mamosebo J
JUDGMENT
Olivier
J:
[
1.]
In
proceedings in the Northern Cape Consumer Court as envisaged in
sections 1 and 18 of the
Northern
Cape Consumer Protection Act
[1]
(“
the
NCCPA
”)
the applicant, Mr Tebogo Lesley Dipico, claimed orders that the first
respondent, Imperial Group Limited t/a Cargo Motors
Klerksdorp, be
ordered to pay the applicant R482 592.50, interest thereon and
costs of suit.
[2.]
The
claim concerned a white Jeep Grand Cherokee vehicle that the first
respondent had delivered to the applicant after the conclusion
of an
instalment sale agreement between the applicant and Wesbank
[2]
.
[3.]
The
claim was based on allegations that the applicant had rescinded the
instalment sale agreement in terms of section 16 of the
Consumer
Protection Act
[3]
(“
the
CPA
”),
alternatively that the white Jeep had been defective, had not
complied with implied warranties in 55 and 56 of the CPA,
entitling
the applicant to return the white Jeep and to claim a refund of the
amounts that he had paid.
[4.]
It
was common cause that the applicant had indeed returned the white
Jeep to the first respondent and that the amount claimed represents
the total of the payments that the applicant had made.
[5.]
The
Northern Cape Consumer Court effectively dismissed the applicant’s
claim and ordered the parties to bear their own costs.
[6.]
In
the present matter the applicant claims the review of the findings
and orders of the Northern Cape Consumer Court, as well as
orders
declaring “
the
contract (offer to purchase) concluded between the Applicant the
first Respondent to be lawfully cancelled
”
and that the first respondent pay the amount claimed to the
applicant, together with interest thereon.
[7.]
Adv.
MJ Grobler has been joined as second respondent, in his capacity as
“
Deputy
Chairperson and/or Presiding Officer
”
of the Northern Cape Consumer Court, but has not responded to service
of the application on him.
[8.]
The
founding affidavit contains not even as much as an allegation that
this court would have the jurisdiction to review the judgment
of the
Northern Cape Consumer Court in the present circumstances
[4]
.
More specifically no allegation has been made that this court would
have the power of review in the present circumstances.
Allegations to this effect can also in my view not even be inferred
from what has been alleged in the founding affidavit.
[9.]
It
is trite that an applicant must generally make out its case in the
founding affidavit
[5]
, and this
the applicant has in my view not done as regards this particular
issue.
[10.]
In
its answering affidavit the deponent for the first respondent raised
the issue of jurisdiction as an
in
limine
objection. It was contended –
10.1.
that the provisions of sections 21 and 22 of the
Supreme
Court Act
[6]
(“
the
SCA
”)
do not empower this court to entertain this review, because the
Northern Cape Consumer Court is not a Magistrates’
Court; and
10.2
that a review by this court is in fact in the present circumstances
precluded by the provisions
of section 24(1) of the NCCPA, read with
those of section 148 of the
National
Credit Act
[7]
(“
the
NCA”
).
[11.]
In
terms of section 24(1) of the NCCPA the provisions of Parts C and D
of Chapter 7 of the NCA are applicable to hearings of the
Northern
Cape Consumer Court. Those provisions include section 148, the
relevant part of which reads as follows:
“
Appeals
and Reviews –
(1)
A
participant in a hearing before a single member of the Tribunal may
appeal a decision by that member to a full panel of the Tribunal.
(2)
Subject
to the rules of the High Court, a participant in a hearing before a
full panel of the Tribunal may –
(a)
apply
to the High Court to review the decision of the Tribunal in that
matter; or
(b)
appeal
to the High Court against the decision of the Tribunal in that
matter, …”.
[12.]
The
Northern Cape Consumer Court is a “
court
”
[8]
,
but because it is not a Magistrates’ Court it cannot be a court
as intended in the provisions of sections 21 and 22 of the
SCA, and
those provisions would therefore not provide a power to this court to
review the proceedings of the Northern Cape Consumer
Court.
[13.]
Mr
Khokho, counsel for the applicant, contended that this court has an
inherent jurisdiction to review the decision of lower courts.
Mr Khokho did not point out the source of such jurisdiction.
Section 24(1) of the erstwhile
Supreme
Court Act
[9]
provided this court with the power to review proceedings of “
inferior
courts
”,
the definition of which would arguably have included the Northern
Cape Consumer Court. That Act has, however, been
repealed and
replaced by the SCA, sections 21 and 22 of which provides for the
review of proceedings of, specifically, Magistrates’
Courts,
and contains no reference to “
lower”
or “inferior” courts
.
No attempt has been made to argue that a provincial Consumer Court
would in fact be a Magistrates’ Court as envisaged
in these
sections.
[14.]
The
provisions of section 148(2) of the NCA, however, do provide for the
review by the High Court of a decision of a “
full
panel
”
of a “
Tribunal
”,
and therefore also of a “
full
panel
”
of a Consumer Court
[10]
.
[15.]
The
distinction between a Consumer Court chaired by only one member and a
Consumer Court consisting of three members also appear
in sections 19
and 23 of the NCCPA, and indeed also in the NCA
[11]
.
[16.]
In
the present matter the Northern Cape Consumer Court was chaired by a
single member, and section 148(2) of the NCA would therefore
not be
applicable at this stage; in other words where the decision has not
yet been subjected to the internal appeal intended by
section
129(1)
[12]
.
[17.]
The
provisions of section 148(1) of the NCA provide an internal remedy
that is available in the case where a consumer is dissatisfied
with a
decision, order or ruling of a Consumer Court comprised of a single
member. When regard is had to the provisions of
subsection (2)
of section 148 the internal remedy could then, should the internal
appeal not succeed, be a step towards approaching
the High Court,
whether on review or appeal.
[18.]
The
first respondent’s case is that it is indeed an indispensable
step towards that goal, that the applicant was obliged to
first
exhaust that remedy and that this court’s power of review would
only then have come into existence in terms of section
148(2)(a).
[19.]
The
applicant’s response to this contention in his replying
affidavit is that “
The
provisions of Section 148(1) of the NCA governs
appeals
and not review applications
”
(applicant’s emphasis) and that the use of the word “
may
”
is indicative of an intention on the part of the Legislature that a
consumer like the applicant, who is dissatisfied with
a ruling of a
single member of a Tribunal
[13]
,
would have the option of either taking that ruling on appeal to a
full Tribunal or Consumer Court, or taking it on review to the
High
Court.
[20.]
In
my view any of the grounds upon which the second respondent’s
judgment is in this application challenged by the applicant,
could
also have been grounds of appeal, especially when regard is had to
the wide range of powers that a full Consumer Court would
have in
considering such an appeal
[14]
.
This was conceded by Mr Khokho. It is therefore not really
clear what point the applicant was trying to make with
the emphasised
reference to “
appeals
and not review applications
”
alluded to above.
[21.]
In
the answering affidavit it was submitted that the applicant had not
shown that any grounds of review as envisaged in section
6 of the
Promotion
of Administrative Justice Act
[15]
(“
the
PAJA
”)
exist in this matter. To this the applicant replied that “
no
reasonable decision maker could
(have)
arrived
at
”
the decision of the second respondent, which would on the face of it
suggest that the applicant was relying on the ground
of review
provided for in section 6(2)(h) of the PAJA. During argument,
however, Mr Khokho denied that the applicant’s
case was
premised upon the PAJA.
[22.]
Insofar
as the applicant’s case may indeed have been based on the
provisions of the PAJA, section 7(2)(a) of that Act would
have
required that the applicant first exhaust any internal remedy that
may be available to him before applying for review in terms
of
section 6(1) of that Act. The provisions of section 7(2)(a) of
the PAJA would therefore not have provided the applicant
with the
option that he claims to have.
[23.]
Even
if section 7(2)(a) of the PAJA was not applicable in this particular
case, the provision of an internal remedy in section 148
of the NCA,
read in the context of that Act and of the NCCPA, in my view make it
very clear that the Legislature intended that
remedy to be exhausted
before recourse is taken to the High Court. This view is
fortified by the fact that, in the
absence of any other source of
power for the review of the decision of a single member Tribunal or
Consumer Court, the exercise
of the internal remedy would apparently
be the only mechanism through which the High Court could eventually
be approached to review
such a decision. The mechanism provides
access from a single member “
panel
”
to a full panel of the Tribunal or Consumer Court, the decision of
which the High Court would indeed in terms of the provisions
of
section 148(2)(a) be competent to review.
[24.]
In
Imperial
Group (Pty) Ltd t/a Auto Niche Bloemfontein v MEC: Economic
Development, Environment Affairs and Tourism, Free State Government
and others
[16]
it was held that:
“
The
Legislature has created a statutory framework in adopting the CPA to
deal with the rights and obligations of suppliers and consumers
to
ensure speedy, inexpensive and fair procedures. A specialised
framework has been created for consumers and suppliers to
resolve
disputes. Parties must pursue their claims primarily through
these mechanisms. See: Chirwa v Transnet Ltd and
others
[2007] ZACC 23
;
2008
(4) SA 367
(CC) ….. The Constitutional Court has
repeatedly held that where legislation has been enacted to give
effect to a
constitutional right(s), a litigant should rely on that
legislation to give effect to the right(s), or else to challenge that
legislation
as being inconsistent with the Constitution …
The NCA, CPA and the Free State Act
[17]
were specifically enacted to entrench and govern the realisation of
the fundamental consumer rights under the Constitution …
”
(Para [18]).
and
that :
“
The
High Court’s right of review is limited in casu. The
remedies provided in the CPA, read with section 148 of the
NCA have
to be pursued
”
(Para [21])
[25.]
I
respectfully agree with this. In my view the “
clear
… intention of the Legislature
”
[18]
is that the provisions of section 148(1), in providing an internal
remedy of appeal and when read in context, would indeed oust
any
conceivable power of review by the High Court of a decision of a
single member provincial Consumer Court that has not yet been
subjected to an appeal by a full provincial Consumer Court
[19]
.
Put another way, in my view the High Court’s only source of
power to review the proceedings of a single member Tribunal
or
Consumer Court would be the provisions of section 148(2)(a),
and that power can only come into existence through an unsuccessful
internal appeal to the full Tribunal or Consumer Court.
[26.]
In
my view the second respondent’s judgment is therefore not
susceptible to review by this court at this stage. The
applicant’s failure to follow the route of an internal appeal
not only rendered this application premature, it also failed
to
activate this court’s power of review in terms of section
148(2)(b).
[27.]
It
is therefore at this stage unnecessary to express an opinion on
whether the second respondent’s judgment would have constituted
“
administrative
action
”
for the purposes of a review in terms of the PAJA
[20]
.
[28.]
For
the same reason the merits of the application cannot be considered at
this stage. I feel constrained, however, to remark
that
although the applicant, in his founding affidavit, labelled some of
the findings of the second respondent as misdirections
and others as
absurd, embarrassing and erratic, he never as much as attempted to
allege that any of those findings would indeed
constitute one of the
grounds of reviews set out in section 6(2) of the PAJA, or would
constitute any other ground of review.
[29.]
It
has to be kept in mind that, for purposes of a review, it would not
suffice to show that the challenged finding was factually
wrong
[21]
.
[30.]
As
I have already said, it was only in the replying affidavit that the
applicant, for the first time and after having been challenged
in
this regard, made an allegation that could be said to refer to a
recognised ground of review. There was, and is, no explanation
for this. It was incumbent upon the applicant to set out the
ground/s of review clearly in his founding affidavit
[22]
.
[31.]
The
material findings of the second respondent were:
34.1
that the cooling-off period in section 16 of the CPA, which had been
applicable when the
applicant had initially bought a gold coloured
Jeep, no longer applied when that vehicle was at a later stage
substituted with
the white Jeep; and
34.2
that the applicant had not on a balance of probabilities proven that
the white Jeep had
a defect as envisaged in the CPA and which could
entitle him to the refund that he claimed.
[32.]
It
is in particular in respect of these findings that the applicant, for
purposes of review, would have had to allege and show,
in his
founding affidavit, that they had resulted from, and/or had
constituted irregularities or illegalities and/or had constituted
grounds of review in terms of section 6(2) of the PAJA, and not
merely that the second respondent had on the evidence been wrong
in
making those findings.
[33.]
Getting
back to the applicant’s failure to exhaust the internal remedy
provided in section 148(1) of the NCA, the applicant
has not applied
for exemption in terms of section 7(2)(c) of the PAJA.
[34.]
He
was not entitled to institute this application in circumstances where
he had not first exhausted the internal remedy provided
for in
section 148(1) of the NCA
[23]
and, in the absence of that remedy having been exhausted, this court
in any event would not have the power of review. It
follows
that the application should be dismissed.
[35.]
The
question arises whether an order in terms of section 7(2)(b) of the
PAJA should then be made. It provides that “
Subject
to paragraph (c), a court or Tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph (a)
has been
exhausted, direct that the person concerned must first exhaust such
remedy before instituting proceedings in a court or
Tribunal for
judicial review in terms of this Act
”.
[36.]
Subsection
(c) makes provision for an application for exemption from the duty to
exhaust an internal remedy before instituting review
proceedings.
[37.]
In
Directory
Solutions CC v TDS Directory Operations (Pty) Ltd and others
[24]
it was held that sub-section (2)(b) did not apply where review
proceedings were instituted and there was no application for
exemption.
[38.]
In
the
Evaluations
Enhanced
case
referred to above
[25]
, and in
circumstances where there had been no application for exemption at
any stage, the order of the court
a
quo
was substituted with orders,
inter
alia
,
that the review application concerned be dismissed and that “
The
Applicant is directed under section 7(2)(b) of PAJA to first exhaust
its internal remedy before instituting review proceedings
”.
[39.]
It
could in my view be argued that the order made on appeal in the
Evaluations
Enhanced
case left no room for an application for exemption.
Theoretically, and depending on the particular applicable provisions,
an applicant may even at such a late stage be entitled to apply for
exemption. Even if it could be argued that this was not
the
literal meaning of that order, the fact would be that any order in a
subsequent successful application for exemption would
inevitably be
irreconcilable with the unqualified directive made on appeal.
[40.]
It
is trite that the Legislature is to be presumed not to have intended
to do away with rights
[26]
and
in my view this would all the more be so where the particular right
concerns access to courts.
[41.]
The
peremptory wording of sub-section (2)(b) is qualified by the
introductory provision of the right to apply for exemption.
In
my view effect can easily be given to both the duty to direct and to
the qualification,
viz
by making the direction subject to the right to apply for exemption.
[42.]
There
is no reason at all why costs should not follow the result in this
application.
[43.]
The
first respondent in fact sought a punitive costs order. It
appears that the first respondent’s attorney had, after
the
institution of this application and in a letter to the applicant’s
attorney, taken the stand that the application should
have exhausted
his internal remedy and had invited the applicant to withdraw the
application for review. It was also contended,
in seeking
punitive costs, that some of the allegations in the founding
affidavit are incorrect, in the sense that they are contradicted
by
the record of the proceedings in the Northern Cape Consumer Court.
[44.]
As
far as the letter is concerned, it was responded to by the
applicant’s attorney, who declined the invitation that the
application for review be withdrawn. In my view it cannot be
said that either the applicant or his attorney had in this regard
been
mala
fide
,
or even reckless, in holding the view that the applicant had not been
obliged to pursue the remedy provided for in section 148(1)
of the
NCA.
[45.]
It
can also not be found, on the available information, that there was
any malice or ill intent in any incorrect exposition in the
founding
affidavit of the evidence presented at the hearing. The record
of those proceedings would inevitably have been part
of the
information before this court on review, and therefore nothing could
have been achieved by intentionally misrepresenting
any part of that
evidence.
[46.]
I
will however make one further remark in this regard, and that is that
insofar as any of the applicant’s legal representatives
had
assisted him in the preparation of his founding affidavit, much more
caution should obviously have been exercised in dealing
with the
evidence presented at the hearing.
[47.]
In
the premises the following orders are made:
1.
THE
APPLICATION IS DISMISSED.
2.
IT
IS DIRECTED THAT, UNLESS THE APPLICANT IS IN TERMS OF
SECTION 7(2)(C)
OF THE
PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 3 OF 2000
, GRANTED
EXEMPTION FROM EXHAUSTING THE INTERNAL REMEDY PROVIDED IN
SECTION
148(1)
OF THE
NATIONAL CREDIT ACT, 34 OF 2005
, THE APPLICANT SHALL
FIRST EXHAUST SUCH REMEDY BEFORE INSTITUTING PROCEEDINGS IN THIS
COURT FOR JUDICIAL REVIEW IN TERMS OF THE
PROMOTION OF ADMINISTRATIVE
JUSTICE ACT.
3.
THE
APPLICANT IS ORDERED TO PAY THE COSTS OF THE APPLICATION ON THE PARTY
AND PARTY SCALE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________________
M
MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
Applicant:
ADV N D KHOKHO
(Instructed by
Luma
Lobi Attorneys
)
For the 1
st
and 2
nd
Respondent:
ADV M C LOUW
(Instructed by
Symington
& De Kok c/o Mervyn Joel Smith
)
[1]
1 of 2012
[2]
A division of FirstRand Bank Limited
[3]
68 of 2008
[4]
Compare
Natalse Landboukoöperasie Bpk v Fick
[1982] 2
All SA 326
(N),
1982 (4) SA 287
(N);
Communication Workers Union
v Telkom SA Ltd
[1999] 2 All SA 113 (T), 1999 (2) SA 586 (T)
[5]
Compare
Titty’s Bar & Bottle Store v ABC Garage and
Others
1974 (4) SA 362
(T) at 369A - B
[6]
10 of 2013
[7]
34 of 2005
[8]
See
inter alia
section 18(1)(c)
of the NCCPA.
[9]
59 of 1959
[10]
In the context of the provisions of the NCCPA (See
section 24(1)
of
that Act).
[11]
See
sections 26
,
27
and
31
[12]
Compare
Bornman v National Credit Regulator
[2014] 2 All SA
14 (SCA)
[13]
Or in the present case of a Provincial Consumer Court.
[14]
See
Rule 27
of the Rules for the conduct of matters before the
National Consumer Tribunal, promulgated in Government Gazette no.
30225 on
28 August 2007, in Government Notice 789
inter alia
provides as follows:
“
(2) The
appeal panel is not restricted to the record of the proceedings
before a single member and may:
(a)
call for additional documentation and representations from the
parties on any matter relevant to the complaint; or
(b)
procure expert evidence and further research.
(3) The
appeal panel, in collaboration with the Chairperson, may take any
steps as are reasonably necessary for the just
and effective
determination of the appeal
.”
.
[15]
3 of 2000
[16]
[2016] 3 All SA 794
(FB)
[17]
The Free State counterpart of the NCCPA
[18]
De Wet v Deetleffs
1928 (AD) 286 at 290
[19]
Compare
Nichol & Another v Registrar of Pension Funds &
others
[2005] JOL 15607
(SCA) para [15]; Compare also
Du Toit
v Benay Sager (NCRD 2482) t/a Debt Busters and Others
[2017]
ZAWCHC 141
and
Phaladi v Lamara and another and a related matter
[2018] JOL 39473 (WCC)
[20]
See the definition
of “
administrative
action
” in
section 1
, which in sub-section (ee) excludes
from review in terms of that Act, inter alia, “
judicial
functions of a judicial officer of a court referred to in section
166 of the Constitution
”, read with sub-section (e) of
section 166 of the Constitution and the reference therein to, inter
alia, courts “
recognised in terms of an Act of Parliament
”.
[21]
Compare
Bapedi Marota Mamone v Commission on Traditional
Leadership Disputes and Claims and others
2015 (3) BCLR 268
(CC);
Justice Alliance of South Africa v Mncube NO and others and
2 related matters
2015 (4) BCLR 402 (WCC)
[22]
Compare
Smuts v Adair and another
[1999] 4 BLLR 392
(LC);
Communication Workers’ Union and others v SA Post Office
Limited and others
[2014] JOL 31295 (LC)
[23]
Compare
Koyabe and Others v Minister for Home Affairs and Others
(Lawyers for Human Rights as Amicus Curiae)
2010 (4) SA 327
(CC), para [82];
Evaluations Enhanced Property Appraisals (Pty)
Ltd v Buffalo City Metropolitan Municipality and others
[2014] 3
All SA 560
(ECG), para [57] and [58]
[24]
[2008] JOL 21689 (SE)
[25]
See footnote 24 above
[26]
Compare
Blaauwberg Municipality v Bekker and
others
[1998] 1 All SA 88
(LCC) para
[33]