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[2016] ZAFSHC 10
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Joroy 4440 CC t/a Ubuntu Procurement v Potgieter N.O. and Another (4161/2015) [2016] ZAFSHC 10; 2016 (3) SA 465 (FB) (28 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 4161/2015
In
the matter between:
JOROY
4440 CC t/a UBUNTU
PROCUREMENT
Applicant
and
PHILLIPUS
CHRISTOFFEL
JOHANNES
POTGIETER
N.O.
First Respondent
CHISTINA
MARTHA POTGIETER
N.O.
Second Respondent
(In
their capacities as executors for the
time
being of the RALLY MOTORS TRUST, IT 408/97)
HEARD
ON:
19 NOVEMBER 2015
JUDGMENT
BY:
C. REINDERS, J
DELIVERED
ON:
28
JANUARY 2016
[1]
The Consumer Protection Act, 68 of 2008 (CPA) came into effect on 31
March 2011. From the Preamble of the CPA it is evident
that the
purpose of this act is amongst others to “protect the interests
of all consumers” and to “ensure accessible,
transparent
and
efficient redress
for consumers who are subjected to abuse
or exploitation in the market place.” ( My emphasis).
[2]
This is an application for a refund of the full purchase price of a
motor vehicle that the Applicant Closed Corporation bought
from the
Respondent Trust. It is not disputed that the basis for the
Applicant’s claim is under the CPA, and more specifically
the
provisions of sections 55 and 56 dealing with the consumer’s
right to good quality goods.
[3]
Both Mr Johnson for the Applicant and Mr Tsangarakis for the
Respondents dealt extensively with the abovementioned sections
of the
CPA in their heads of argument. When the matter was argued Mr
Tsangarakis indicated that, although not canvassed in his
heads of
arguments, he wished to make submissions on Section 69 of the CPA
dealing with enforcement of the consumer’s rights.
Adhering to
sound litigation ethics, he had informed Mr Johnson of his intention
to do so, thus affording him the opportunity to
prepare on this
point.
[4]
Section 69 reads as follow:
“
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 such 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;
or
(d)
approaching a court with jurisdiction over the matter, if all other
remedies available to that person in terms of national legislation
have been exhausted.”
[5]
The question to be decided by me is thus if this court has
jurisdiction to hear the matter in view of the wording of Section
69(d). It was submitted by Mr Tsangarakis that the wording of section
69 is clear and unambiguous in that the applicant had to
exhaust his
remedies in terms of Section 69 (a)-(c) first before approaching this
court for redress. He submitted that the applicant
made no averment
that he had exhausted all remedies and that applicant’s cause
of action was accordingly incomplete. Mr Johnson
argued that Section
69(d) was not “cast in stone” and that the court did in
fact have the necessary jurisdiction to
entertain the matter. Council
went to great lengths to obtain case law in support of their
submissions in respect of the said section
but indicated that they
could find none. Both referred me to the publication of Tjakie Naude
and Sieg Eiselen: Commentary on the
Consumer Protection Act.
[6
]
The said learned authors discuss the interpretation of
Section 69(d)
under the heading “
Limitation upon access to civil courts”
on 69-14 par [26]. They are of the opinion that the jurisdiction
of the courts are not ousted by this section, but that the courts
cannot be approached before the consumer has exhausted other avenues
of redress that do not entail court intervention:
“
It
thus appears that any such person who wishes to approach a court in
accordance will have to make the allegation in … the
founding
affidavit that all other remedies in terms of national legislation
have been exhausted. Other remedies will include any
remedies that
consumers may have in terms of the CPA.”
[7]
Section 4(3)
of the CPA provides as follow:
“
If
any provision of this Act, read in its context,
can
reasonably be construed to have more than one meaning
,
the Tribunal or court must prefer the meaning that best promotes the
spirit and purposes of this Act, and will best improve the
realisation and enjoyment of consumer rights generally, and in
particular by persons contemplated in section 3(1)(b).” (My
emphasis)
[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 of redress 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 how 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.
[9]
The dispute resolution mechanisms available to an aggrieved consumer
in terms of Section 69(a), (b) and (c) of the CPA include
referring
the matter directly to the Tribunal; to the applicable ombud with
jurisdiction; to the applicable industry ombud, accredited
in terms
of Section 82(6); to the consumer court; alternative dispute
resolution and filing a complaint with the Commission
.
In the case of the motor industry an ombud in terms of Section 82(6)
has been accredited. The Motor Industry Ombudsman of
South
Africa (MIOSA) deals specifically with dispute resolutions between
consumers and the motor industry.
[10]
It was held by the Constitutional Court that, where a specialised
framework has been created for the resolutions of disputes,
parties
must pursue their claims primarily through such mechanisms.
See:
Chirwa v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC)
[11]
I do not make a finding on the merits of this application and
therefore the Applicant would be free to utilise any of the dispute
resolution mechanisms available in terms of the CPA. Mr Johnson
submitted that I should make an order referring this matter to
another dispute resolution forum in terms of Section 69. Mr
Tsangarakis argued that there is no indication of such a referral in
the said section. I agree.
[12]
Regarding costs Mr Johnson argued that the question of jurisdiction
was not raised beforehand and that it would thus only be
fair that
each party should pay its own costs. Mr Tsangirakis however argued
that the Applicant did not aver in the founding papers
that the court
has jurisdiction to hear this application, and furthermore did not
apply for a postponement to comply with Section
69 but rather
persisted with the application and should thus bear the costs.
However, had the Respondent raised this point in his
opposing papers,
the matter might not have been before court today. I am accordingly
of the view that both parties should bear
its own cost.
[13]
In the premises the following order is made:
1.
The
application is refused.
2.
Each party to
pay his or her own costs.
_______________
C.
REINDERS, J
On
behalf of Applicant:
Adv JMC Johnson
Instructed by:
PHATSHOANE
HENNEY INC
BLOEMFONTEIN
On
behalf of Respondents:
Adv S Tsangarakis
Instructed by:
SYMINGTON
& DE KOK
BLOEMFONTEIN