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[2016] ZANCHC 1
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Imperial Group (Pty) Ltd t/a Cargo Motors Klerksdorp v Dipico and Others (1260/2015) [2016] ZANCHC 1 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
1260/2015
DATE:
01 APRIL 2016
In
the matter between:
IMPERIAL
GROUP (PTY) LTD t/a
CARGO
MOTORS
KLERKSDORP
.......................................................................................
Applicant
And
TEBOGO
LESLIE
DIPICO
........................................................................................
First
Respondent
ADV
EJP KAMMIES
N.O
...................................................................
Second
RespondentRespondent
Coram:
Phatshoane J and Mamosebo J
JUDGMENT
Phatshoane
J
Datum
aangehoor / Date heard:
02/02/2016
Datum
beskikbaar/Date available: 01/04/2016
INTRODUCTION
[1]
This is an application in terms of s 148(2)(a) of the National Credit
Act, 34 of 2005 (NCA), by Imperial Group (Pty) Ltd t/a
as Cargo
Motors Klerksdorp (Cargo Motors), to review and set aside the
decision of Adv EJP Kammies, the Chairperson of the Northern
Cape
Consumer Court (NCCC), the second respondent, in refusing to grant
condonation for the late filing of an appeal under Case
number:
02/03/2014 at the NCCC and to substitute the Chairperson’s
decision with an order in terms of which condonation is
granted for
the late filing of the appeal.
SOME
BACKGROUND FACTS
[2]
Around 14 April 2012 Cargo Motors, the applicant, and Mr Tebogo
Leslie Dipico, the first respondent, entered into an agreement
in
terms of which Cargo Motors sold a Jeep Grand Cherokee vehicle to Mr
Dipico who took delivery thereof. Pursuant thereto, Mr
Dipico
informed Cargo Motors, telephonically and by means of an e-mail, that
the vehicle overheated and returned it to the merchant
who, around 25
April 2012, undertook to replace it with a prototype Jeep Grand
Cherokee. A new offer to purchase was concluded.
Thereafter Mr Dipico
and Wesbank, a Division of FirstRand Bank Limited, entered into a
large instalment sale agreement in terms
of which Wesbank financed
the vehicle.
[3]
On 26 April 2012 Mr Dipico took delivery of the prototype which,
according to him, also malfunctioned around 27 April 2012.
He
delivered it to the merchant for inspection and repair. Although
gainsaid by the merchant, Mr Dipico allege that the vehicle
was not
suitable for its general intended purpose; not of good quality; not
in good working order; not free of any defect; and
not usable and
durable for a reasonable period of time. On 29 April 2012 Mr Dipico
forwarded an email to the sales manager of Cargo
Motors informing him
that he was cancelling the transaction and returning the vehicle but
the latter was not amenable to the cancellation.
Mr Dipico
nevertheless effected restitution on 30 April 2012.
THE
DISPUTE RESOLUTION MECHANISMS FOLLOWED BY MR DIPICO
[4]
Relying on various provisions of the Consumer Protection Act, 68 of
2008 (CPA), Mr Dipico referred his complaint to the following
dispute
resolution forums:
[1]
4.1
The Office of the Consumer Protector at the Department of Economic
Development and Tourism, Kimberley, during May
and June 2012. The
Consumer Protector was unable to assist him but advised him to refer
his dispute to the National Consumer Commissioner
(NCC).
4.2
The North West Province Consumer Affairs Office, where the dealership
of Cargo Motors is situated. This office informed
him that they did
not have the technical knowledge to determine whether the vehicle
suffered from a latent defect.
4.3
The Motor Industry Ombudsman of South Africa (MIO) during November
2012. The MIO informed Mr Dipico that Cargo Motors could
not find any
fault with the vehicle; there was nothing to repair; and therefore
the MIO was closing his file.
4.4
The National Consumer Commission (NCC) and National Consumer Tribunal
(NCT) between March 2013 to July 2013. The NCC informed
Dipico that
it would refer the matter to the MIO a second time.
4.5
Mr Dipico intimated that from August 2013 to 10 March 2014, the
dispute remained unresolved at the MIO who failed
to make a ruling.
4.6
During November 2013 to February 2014 Mr Dipico, once more,
approached the NCC. This time, the NCC issued a Notice
of
non-referral of the dispute which enabled him to approach the
NCCC
[2]
. Although this notice
does not form part of the record before us, it is recorded in the
ruling of the NCCC (the hearing at first
instance) that the notice
read:
“
The
Commission has reviewed the complaint, the ruling by the MIO as well
as factors surrounding the recourse of your complaint.”
The
reason for the issuance of the Notice of non-referral is recorded as
follows:
“
This
is because your matter needs adjudication and as you may be aware
that section 99(1) of the CPA states that the Commission
is not
responsible to directly adjudicate any such dispute, therefore the
commission will then issue a Notice of non-referral on
your
complaint.”
[5]
Pursuant to the issuing of the Notice of non-referral by the NCC Mr
Dipico issued a summons in the NCCC against Cargo Motors,
Chrysler
South Africa, and Wesbank, claiming, amongst others, the refund of
the purchase price of the vehicle and ancillary relief.
He later
withdrew his claim against Chrysler and Wesbank but proceeded against
the merchant.
[6]
When Mr Dipico issued the aforementioned summons he omitted to seek
leave from the NCCC to refer his dispute directly to that
Court. In
terms of s 11 of the Northern Cape Consumer Protection Act, 1 of 2012
(NCCPA), if the Authority issues a Notice of non-referral
in response
to a complaint, other than on grounds contemplated in s 116
[3]
of the CPA, the complainant may refer the matter directly to the
Consumer Court,
with
leave
of the Consumer Court.
[7]
In July 2014 Mr Dipico served and filed an application in the NCCC in
terms of which he sought leave to refer his dispute directly
to the
NCCC and condonation for various other issues of non-compliance with
the applicable legislation. Cargo Motors opposed the
application for
direct referral. Notwithstanding this, it granted Mr Dipico an
indulgence to cure the defects in his application
for direct referral
but persisted with its opposition on the basis that s 69(b) and (c)
of the CPA precluded a referral of a dispute
to a Consumer Court
where there was an Ombud with jurisdiction to entertain the dispute,
in casu,
the MIO. Section 69 (b) of the CPA is dealt with
later on in this judgment.
[8]
Sometime during August 2014 the application for direct referral was
enrolled before a single member of the NCCC, Adv NJ Grobler.
The NCCC granted Mr Dipico leave for direct referral of his dispute
to that Court.
[9]
Cargo Motors noted an appeal against the judgment and order granting
leave for direct referral by the NCCC. The Notice of leave
to appeal
was filed outside the 20 (twenty) day’s period allowed in Rule
26 of the Rules for the conduct of matters before
the National
Consumer Tribunal published in terms of Government Gazette No: 30225
of 28 August 2007.
[4]
These
Rules also applied to the NCCC. In view of the late filing of the
Notice of Appeal Cargo Motors brought an application for
condonation.
[10]
In the judgment handed down by the Chairperson of the NCCC the Full
Panel of that Court refused to condone Cargo Motors’
late
filing of the Notice of Appeal. This is the impugn decision sought to
be reviewed and set aside.
THE IMPUGNED
DECISION
[11]
The impugn decision (judgment on appeal by the NCCC) is not
well-structured. To comprehend it, sifting the wheat from the chaff
became necessary. Apparent from the decision is that the Chairperson
had regard to the factual background highlighted in this judgment
and
noted that the “
dispute between the appellant (Cargo Motors)
and the respondent (Dipico) had its origin outside the borders of the
Northern Cape
Province”
. He correctly identified that the
appeal was against the direct referral of the dispute to the NCCC in
terms of s 11 of the NCCPA.
He was of the view that, for purposes of
determining whether to grant the application for condonation for the
late filing of the
Notice of Appeal, it was pertinent to have regard
to two issues: Firstly, the reason given for non-compliance with the
Rules by
Cargo Motors and secondly, its prospects of success on
appeal.
[12]
The Chairperson noted that the dispute was referred to the MIO who in
due course closed its file. He was of the view that at
the time that
the dispute was filed with the NCCC there was a Notice of
non-referral which had been issued by the NCC conferring
jurisdiction
upon NCCC to entertain the application for direct referral in terms
of the CPA read with the NCCPA and the Rules for
the conduct of
matters before the NCT. He reasoned that Cargo Motors had ample time
to challenge the validity of the Notice of
non-referral issued by the
NCC prior to the filing of the dispute with the NCCC because the
dispute between the parties remained
unresolved for a considerable
period of time.
[13]
In conclusion the Chairperson acknowledged that there were no Rules
for the conduct of proceedings in the NCCC regulating the
filing of
appeals and reviews. However, he was of the view that,
ex facie
Cargo Motor’s founding papers, it was aware of the 20 days’
period within which the Notice of Appeal ought to have
been filed. He
concluded that Cargo Motors did not demonstrate that good cause
existed for the application to succeed and expressed
serious doubt
whether Cargo Motors had reasonable prospects of success on appeal.
THE GROUNDS OF
REVIEW
[14] The grounds of
review may be summarised as follows:
14.1
The court
a quo
(the Chairperson) failed to take into account the material facts
before him and the legal principles;
14.2
The court
a quo
failed to give consideration to all the
factors applicable in the evaluation of an application for
condonation,
inter alia
, the importance of the case. The
issues raised on appeal related to new legislation which required the
Court’s interpretation
to lend legal certainty thereto.
14.3
There is no rational connection between the facts and the finding
arrived at by the court
a quo
.
14.4
Lastly, that the court
a quo
did not have jurisdiction to entertain the dispute: Firstly, because
Cargo Motor’s business is situated outside the jurisdiction
of
the NCCC and secondly, the sale agreement, to which the dispute
relates, was concluded outside the court’s territorial
boundaries.
THE ANALYSIS
[15]
The approach to the granting of an application for condonation was
authoritatively settled in
Melane v
Santam Insurance Co Ltd
1962 (4)
SA 531
(A) at 532C-F and reaffirmed as follows in
United
Plant Hire (Pty)
Ltd
v Hills and Others
1976 (1) SA 717
(A) at 720E-G:
“
It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon
a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefore, the prospects of success on
appeal,
the importance of the case, the respondent's interest in the finality
of his judgment, the convenience of the Court, and
the avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay
and a good
explanation may help to compensate for prospects of success which are
not strong.”
[16]
Cargo Motors, understandably, criticised some of the remarks made by
the Chairperson of the NCCC in his ruling because they
were illogical
and contributed nothing of substance to the issues he was called upon
to determine. It is unnecessary to highlight
those issues as nothing
of consequence turns on them.
[17]
Evidently, the Chairperson did not address the wantonness of the
delay for filing of the Notice of Appeal or made any reference
to the
explanation proffered for the delay by Cargo Motors in his ruling.
Neither did he deal with the importance of the matter.
[18]
The ruling of Adv Grobler, sitting as the NCCC Court of first
instance, which granted Mr Dipico leave to refer his dispute
to the
NCCC, was brought to the attention of Cargo Motors on 23 September
2014. The Notice of Appeal was filed on 10 February 2015,
almost 4
months from date of the ruling, approximately 75 court days late. In
explaining the delay on behalf of Cargo Motors Mr
Oba van Tonder, a
professional assistant in the employ of Symington & De Kok
Attorneys, Bloemfontein, explained that on 21
October 2014 he was
instructed to obtain counsel’s opinion on whether to challenge
Adv Grobler’s ruling. On 03 November
2014 counsel advised that
the ruling was assailable.
[19]
Counsel’s attention was drawn to s 24 of the NCCPA which makes
the provisions of the CPA and the NCA applicable to the
hearings
before the NCCC
[5]
. He in turn
advised that a Notice of Appeal be filed. Mr Van Tonder
received the Notice of Appeal from counsel on 29 January
2015 which
was served and filed 8 days later.
[20]
Cargo Motors does not say at what stage between November 2014 and
January 2015 its counsel became aware of provisions of s
24 of the
NCCPA nor why the notice was only filed on 10 February 2015 when it
was already received from counsel on 29 January 2015.
It is also
disquieting that the condonation for the late filing of the Notice of
Appeal was only served and filed on the date of
the hearing of the
appeal, approximately a month later, following the filing of the
Notice of Appeal. This is inexcusable.
[21]
I now turn to consider whether Cargo Motors had demonstrated good
prospects of success which would compensate for the substantial
delay. The thrust of its argument is that the NCCC did not take into
account that the NCC was not entitled to issue the Notice
of
non-referral because the issuance thereof was contrary to the
peremptory provisions of the CPA which prohibited a referral of
a
dispute to any other forum where there is an Ombud with jurisdiction
(MIO). Cargo Motors further contended that, regard being
had to the
peremptory provisions of the CPA and authorities, it was not
necessary to set aside the Notice of non-referral because
it was a
nullity and of no force or effect. It further argued that the NCCC
itself was not statutorily mandated to grant Mr Dipico
leave to refer
his dispute to that court because of the invalid Notice of
non-referral issued by the NCC. It too lacked jurisdiction
due to the
existence of the MIO, the argument went.
[22]
In support of his argument, Mr Louw, for Cargo Motors, relied heavily
on the provisions of s 69 of the CPA, which provides:
“
69
Enforcement of rights by consumer:
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.”
[23]
Mr Louw also relied on the decision of the National Consumer Tribunal
(NCT) in
Clientele
General Insurance Ltd v National Consumer Commission
(NCT/4671/2012/60(3) and 101(1)(P)[2013] ZANCT 7 (15 April 2013),
reported on SAFLII, which concerned the review and cancellation
of a
compliance notice in terms of s 101(1)
[6]
of the CPA that had been issued to Clientele General by the NCC. In
that case the complainant had referred his complaint to the
NCC.
Parallel to that process he also lodged his complaint with the
Ombudsman for Short-term Insurance. Unquestionably, two distinct
dispute resolution fora. Clientele General refunded the complainant
an amount it claimed to have been the total amount of his premium.
The complainant accepted the payment in full and final settlement of
the dispute arising out of the complaint. The Ombudsman for
Short-term Insurance referred the matter to the Ombud for Financial
Services Providers (FAIS Ombud) which dismissed the complaint.
However, it so happened that two days prior to the dismissal of the
complaint, in a different forum, the NCC had issued a compliance
notice in terms of which Clientele General was directed to refund the
complainant.
On
review one of the issues before the Tribunal was whether the
compliance notice issued by the NCC was issued in accordance with
the
law. It was contended
inter alia
that the NCC lacked jurisdiction by virtue of the provisions of s
69(b) of the CPA. The NCT held that in terms of s 69 of the CPA
the
complaint fell within the jurisdiction of the Ombud for Short-term
Insurance, whose decision Clientele General abided by and
resolved
the dispute. It further held that the NCC should not have dealt with
the matter.
Clientele
General’s
decision should be
understood against the backdrop of forum-shopping that was patently
at play. The circumstances prevailing in
Mr Dipico’s situation
are markedly different from the factual matrix in
Clientele
General
and therefore distinguishable.
Mr Dipico referred his complaint to the MIO around November 2012. It
remained unresolved and decided
to approach the NCC which issued a
Notice of non-referral.
[24]
Essentially this statutory review application concerns the
interpretation of s 69 of the CPA. The CPA is a social justice piece
of legislation which, apparent from its lengthy pre-amble,
inter
alia,
aims to protect the interest of
all consumers and ensures accessible, transparent and efficient
redress for consumers who are subjected
to abuse or exploitation in
the marketplace.
[25]
The purposes of the CPA are to promote and advance the social and
economic welfare of consumers in South Africa by, amongst
others,
providing a consistent, accessible and efficient system of consensual
resolution of disputes arising from consumer transactions;
and an
accessible, consistent, harmonised, effective and efficient system of
redress
for consumers
[7]
.
[26]
The CPA must be interpreted in a manner that gives effect to the
purposes set out in s 3.
[8]
In
Daniels
v Campbell NO and Others
[2004] ZACC 14
;
2004
(5) SA 331
(CC) at 350 para 43, the Court held:
“
[43]
Section 39(2) of the Constitution contains an injunction on the
interpretation of legislation. It requires courts when interpreting
any legislation to ‘promote the spirit, purport and objects of
the Bill of Rights’. Consistent with this interpretive
injunction, where possible, legislation must be read in a manner that
gives effect to the values of our constitutional democracy.
These
values include human dignity, equality and freedom. Thus where
legislation is capable of more than one plausible construction,
the
one which brings the legislation within constitutional bounds must be
preferred.”
[27]
In my view s 69 should be read contextually, in conjunction with s
70 of the CPA and the purpose of the statutory enactment.
Section 70
provides:
“
Alternative
dispute resolution:
(1)
A consumer may seek to resolve any dispute in respect of a
transaction or agreement with a supplier by referring the matter
to
an alternative dispute resolution agent
who
may be
-
(a)
an ombud with jurisdiction, if the supplier is subject to the
jurisdiction of any such ombud;
(b)
an industry ombud accredited in terms of section 82 (6), if the
supplier is subject to the jurisdiction of any such ombud;
(c)
a person or entity providing conciliation, mediation or arbitration
services to assist in the resolution of consumer disputes,
other than
an ombud with jurisdiction, or an accredited industry ombud;
or
(d)
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.
(2)
If an alternative dispute resolution agent concludes that there is no
reasonable probability of the parties resolving their
dispute through
the process provided for, the agent may terminate the process by
notice to the parties, whereafter the party who
referred the matter
to the agent may file a complaint with the Commission in accordance
with section 71.
(3)
If an alternative dispute resolution agent has resolved, or assisted
parties in resolving their dispute, the agent may-
(a)
record the resolution of that dispute in the form of an
order,
and
(b)
if the parties to the dispute consent to that order, submit
it
to the Tribunal or the High Court to be made a
consent
order, in terms of its rules.
(4)
With the consent of a complainant, a consent order confirmed in terms
of subsection (3) (b) may include an award of damages
to that
complainant”.
[28]
Section 70 puts paid to any doubt on whether the CPA seeks to
introduce the hierarchical system of dispute resolution in s
69. It
makes plain that a consumer may seek to resolve any dispute in
respect of a transaction or agreement with a supplier by
referring
the matter to an alternative dispute resolution agent
who may
be
any of the institutions listed in the section.
[29]
On a plain reading of s 69(b) a consumer may seek to enforce any
right in terms of the CPA or in terms of a transaction or
agreement,
or otherwise resolve any dispute with a supplier, by: (1) referring
the matter directly to the Tribunal, if such a direct
referral is
permitted by the Act in the case of the particular dispute; (2)
referring the matter to the applicable ombud with jurisdiction, if
the supplier is subject to the jurisdiction of any such ombud.
If
the supplier is not subject to the jurisdiction of any such an ombud
the consumer has various alternative dispute resolution
mechanisms
set out in Section 69(c). I say this because the word “
or
”
in s 69(c) postulates that interpretation. Put differently, the word
“
or
” points to alternative dispute resolution
structures available to the consumer, which are mutually exclusive or
disjunctive
as opposed to conjunctive.
[30]
In my view, it could never have been the intention of the legislature
that consumers subject to the ombud with jurisdiction
are denied
access to various other dispute resolution mechanisms accorded to
other consumers. Such a construction would not be
in conformity with
the purpose of the CPA which, as already mentioned, is to provide for
an accessible, consistent, harmonised,
effective and efficient system
of redress for consumers. I am of the view that had the legislature
intended that a particular category
of consumers submit to the
jurisdiction of a specific dispute resolution forum only it would
have expressly said so.
[31]
The principle is that a litigant who has a single claim that is
enforceable in two courts that have concurrent jurisdiction
must
necessarily make an election concerning which court to use
[9]
.
Ordinarily where a dispute is referred to an ombud with jurisdiction
or to an alternative dispute resolution forum it ought to
be
finalized in that forum. Forum-shopping by litigants is not
desirable
[10]
.
[32]
The learned author C van Heerden on
Commentary
on the Consumer Protection Act
(Original
Service 2014) ‘Section 69’ in Naudé & Eiselen
(eds) at 69-19 para 33 makes the following persuasive
concluding
remarks:
“
Thus
it is clear that where ombuds exist, whether ombuds with jurisdiction
or industry ombuds, they are to be preferred to approaching
other
dispute resolution agents. Alternatively to approaching the above
alternative dispute resolution bodies a consumer may approach
a
consumer court of the province with jurisdiction, if there is such a
consumer court.
Therefore if a consumer
resides in a province where there is a consumer court, such consumer
is not barred from approaching the
consumer court even if an ombud
with jurisdiction exists.
However,
there is a distinct possibility that the consumer court may decline
to hear the matter and refer the dispute to the ombud
with
jurisdiction instead, on the basis that such ombud has the
appropriate expertise to deal with the matter. In principle civil
courts should be approached as an option of last resort in order to
deal with a dispute between a consumer and a supplier, except
in
instances where it is clear that such court either has exclusive
jurisdiction to deal with the matter or to make a specific
order such
as a damages award or would otherwise be best suited to improve the
realisation and enjoyment of consumer rights as
contemplated by s
4(3).”
[33]
The interpretation which Cargo Motors accords to s 69 would, in my
view, frustrate the intention of the legislature and runs
counter to
the legislative purpose set out in the CPA.
[34]
There can be no question that Mr Dipico has been through a protracted
and problematic course in an attempt to have his dispute
resolved
with Cargo Motors. His legal battle should also be seen in
light of s 34 of the Constitution of the Republic of
South Africa,
Act 108 of 1996, which provides that everyone has the right to have
any dispute that can be resolved by the application
of law decided in
a fair public hearing before a Court or where appropriate, another
independent and impartial tribunal or forum.
[35]
The National Consumer Commission (NCC) plays a central role in the
enforcement of the CPA.
[11]
One of its many statutory obligations is to liaise with any
provincial consumer protection authority or other regulatory
authority
on matters of common interest and,
without
limiting the generality of this power
,
may monitor, require necessary information from, exchange information
with, and receive information from, any such authority pertaining
to
matters of common interest; or a specific complaint or
investigation
[12]
. The NCC is
responsible for monitoring,
inter
alia
,
the effectiveness of accredited consumer groups, service delivery to
consumers by organs of state, and any regulatory authority
exercising
jurisdiction over consumer matters within a particular industry or
sector
[13]
. The ombuds fall
squarely within the definition of a regulatory authority
[14]
.
[36]
The issuance of the Notice of non-referral by NCC was inevitable in
view of the inaction on the part of the MIO to dispose
of Mr Dipico’s
complaint. The NCC has an oversight role over the efficiency of the
MIO or any other regulatory authority
exercising jurisdiction over
consumer matters within a particular industry or sector. There is no
merit in the argument that the
NCC lacked jurisdiction to issue the
Notice of non-referral.
[37]
I now turn to consider whether the NCCC had jurisdiction to entertain
Mr Dipico’s complaint. Section 6 of the NCCPA provides
in part:
“
(2)
A person contemplated in section (4)(1) of the Consumer Protection
Act who seeks to enforce any right in accordance with section
69(c)(iii) of that Act by applying directly to the Consumer Court,
may do so only-
(a)
If a complaint has beforehand been filed with and investigated by the
Authority; and
(b)
The Authority has issued a notice of non-referral to the person.”
Section
11(1) of the NCCPA provides:
“
If
the Authority issues a notice of non-referral in response to a
complaint, other than on the grounds contemplated in section 116
of
the Consumer Protection Act, the complainant concerned may refer the
matter directly to the Consumer Court, with leave of the
Consumer
Court.”
[38]
Provincial Consumer Protection Authority (PCPA) is the “Authority”
referred to in s 6 and 11 of the NCCPA
[15]
.
Clearly the Notice of non-referral was not issued by PCPA as
contemplated by ss 6 and 11 of the NCCPA but by the NCC. However,
it
is important to bear in mind that s 83 of the CPA provides for a
system of co-operative exercise of concurrent jurisdiction
between
the NCC and the PCPAs. The NCC has jurisdiction throughout the
Republic
[16]
.
[39]
There has been in this case substantial compliance with ss 6 and 11
of the NCCPA by Mr Dipico. More pertinently, s 75
(1) of the
CPA put an end to any uncertainty on the jurisdiction of the NCCC. It
provides that if the NCC issues a Notice of non-referral
in response
to a complaint, other than on the grounds contemplated in section
116
[17]
, the complainant
concerned may refer the matter directly to,
inter
alia,
the consumer court, if any,
in
the province within which the complainant resides, or in which the
respondent has its principal place of business in the Republic,
subject to the provincial legislation governing the operation of that
consumer court
.
There can be no question that on the basis of these statutory
prescripts the NCCC has jurisdiction to entertain Mr Dipico’s
complaint.
[40]
Belatedly, Cargo Motors took issue with the territorial jurisdiction
of the NCCC. Mr Louw contended that Cargo Motors’
business is
situated outside the jurisdiction of the NCCC. In addition, the sale
agreement in issue was concluded outside the Northern
Cape Province.
Counsel argued that the Chairperson’s dismissal of the appeal
was inconsistent with his remark to the effect
that Mr Dipico’s
dispute had its origin outside the borders of the Northern Cape. He
ought to have upheld the appeal, the
argument went. Counsel contended
that s 3 of the NCCPA limits the jurisdiction of the NCCC to
activities within the Province.
[41] Section 3 of
the NCCPA provides that:
“
Subject
to the exemptions set out in section 5 of the Consumer Protection
Act, this Act applies within the Province to all activities
referred
to in
that
section to which
that
Act applies”.
[42]
A mere reading of s 3 does not support Mr Louw’s argument. The
NCCPA applies to the Northern Cape. However, its application
is not
limited to activities within the province because it applies to all
the activities referred to in s 5 of the CPA
[18]
.
In any event this argument founders in the face of s 75(1)(a) of the
CPA referred to in para 39 of this judgment.
CONCLUSION
[43]
On the whole, insofar as the Chairperson expressed his doubt that the
appeal had no reasonable prospects of success, he cannot
be faulted.
There is, in my view, a rational connection between the ultimate
decision he arrived at and the material before him.
The corollary of
this is that the review application must fail. Costs are to follow
the result.
[44]
In the result:
THE
ORDER:
1.
The Review Application is dismissed with
costs.
MV
PHATSHOANE
JUDGE
I
agree
MC
MAMOSEBO
JUDGE
On
behalf of Appl
:
Adv. C. Louw (oio Mervyn Joel Smith (Symington & De Kok))
On
behalf of 1
st
Resp
: Adv. J.G. Coetzee
(oio Hugo Mathewson (Venn Attorneys, Jhb))
[1]
This
appears in para 22 of the particulars of claim attached as annexure
“A” to the founding affidavit in respect
of the
application for condonation for the late filing of an appeal that
served before the Chairperson of the Northern Cape Consumer
Court
(NCCC).
[2]
Section
75 of the Consumer Protection Act, 2008 (CPA) provides:
“
(1)
If the Commission issues a notice of non-referral in response to a
complaint, other than on the grounds contemplated in section
116,
the complainant concerned may refer the matter directly to-
(a)
the consumer court, if any, in the province within which the
complainant resides, or in which the respondent has its principle
place of business in the Republic, subject to the provincial
legislation governing the operation of that consumer court; or
(b)
the Tribunal, with leave of the Tribunal”
[3]
Section
116 of the CPA places limitations in bringing action. For instance,
a complaint in terms of the Act may not be referred
or made to the
Tribunal or to a consumer court more than three years after-(a) the
act or omission that is the cause of the complaint;
or b) in the
case of a course of conduct or continuing practice, the date that
the conduct or practice ceased. Furthermore a
complaint in terms of
the Act may not be referred to the Tribunal or to a consumer court
in terms of the Act, against any person
that is, or has been, a
respondent in proceedings under another section of the Act relating
substantially to the same conduct.
[4]
The
appeal before the Chairperson was brought in terms of section 148(1)
of the NCA which provides:
“
(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.”
[5]
It
is to be recalled that s 148 (1) of the National Credit Act (NCA),
upon which this review is founded, stipulates that a participant
in
a hearing before a single member of the Tribunal (in this case the
NCCC) may appeal a decision by that member to a full panel
of the
Tribunal (NCCC).
[6]
Section
101 (1) provides that “ Any person issued with a notice in
terms of section 100 (Compliance Notice) may apply to
the Tribunal
in the prescribed manner and form to review that notice within-
(a)
15 business days after receiving that notice; or
(b)
such longer period as may be allowed by the Tribunal on good cause
shown.”
[7]
See
s 3 (1)(g) and (h) of the CPA
[8]
See
s 2(1) of the CPA.
[9]
See
Makhanya
v University of Zulu Land
2010 (1) SA 62(SCA)
at 78 para 61.
[10]
Gcaba
v Minister For Safety and Security and Others
2010(1) SA 238 (CC) at 257 para 57.
[11]
Regard
being had to its functions as set out in ss 92 to 101 of the CPA.
[12]
Section
97(1)(a)
[13]
See
s 99(c )(ii) of the CPA
[14]
The
regulatory authority is defined in the CPA as an organ of state or
entity established in terms of national or provincial legislation
responsible for regulating an industry, or sector of an industry.
[15]
Section
1 of the NCCPA defines “Authority” as Provincial
Consumer Protection Authority established by section 4 of
the
NCCPA.
[16]
See
s 85(2)(a)
[17]
See
footnote 3.
[18]
Section
5 lists a number of instances to which the CPA applies to. Of
importance, for present purposes, is that s 5 (1)(a) provides
that
the CPA applies to-every transaction occurring
within
the Republic
,
unless it is exempted by subsection (2), or in terms of subsections
(3) and (4);