About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2024
>>
[2024] ZANCHC 52
|
|
Makadu v NTT Volkswagen and Others (2181/2020) [2024] ZANCHC 52 (31 May 2024)
FLYNOTES:
CONSUMER
– Defective goods –
Exhausting
internal remedies
–
Brand
new vehicle defective – Requested cancellation of agreement
declined by respondent – Applicant’s failure
to comply
with section 69(d) of Act – Failure to exhaust internal
remedies before approaching court – Lodged
complaint with
ombudsman – Did not refer matter to Consumer Tribunal –
Application refused for failure to exhaust
all internal remedies –
Consumer Protection Act 68 of 2008
,
s 69(d).
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO: 2181/2020
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
MASEGO
PRECIOUS MAKADU
Applicant
and
NTT
VOLKSWAGEN
First Respondent
MOTOR
INDUSTRY OMBUDSMAN
Second
Respondent
VOLKSWAGEN
FINANCIAL SERVICES
SOUTH
AFRICA (PTY)
LTD
Third Respondent
WESBANK
MOTOR FREE STATE &
NORTHERN
CAPE
Fourth
Respondent
Heard
on:
18 February 2022
Delivered
on: 31 May 2024
JUDGMENT
RAMAEPADI
AJ
INTRODUCTION
1
The applicant, Masego Precious Makadu (‘Makadu’)
has
brought an application in this court for an order,
inter alia:
1.1.
For the delivery of a new Volkswagen Polo Vivo 1.0 TSI 2019 Motor
Vehicle without latent
or patent defects.
1.2.
That the recommendation made by the second respondent under reference
number 360815/AS
be set aside, within ten (10) days of granting this
order.
1.3.
If specific performance cannot be tendered, that the sale agreement
between the parties
be cancelled and that the applicant be refunded.
1.4.
That the first respondent bears the costs of this application.
2
The applicant also seeks condonation for the late filing
of her
replying affidavit. The application for condonation is not opposed by
the respondents.
3
The main application is opposed by the first, third and
fourth
respondents. They do so on procedural, as well as substantive
grounds. On procedural grounds, the first, third and fourth
respondents oppose the main application on five (5) grounds.
3.1.
First, the applicant has cited the first respondent as ‘NTT
Volkswagen’. NTT
Volkswagen is a branding name for various
Volkswagen dealerships around the country. It is not an entity with
standing in legal
proceedings. The applicant has therefore cited a
non-existent entity. The proper citation of the first respondent is
NTT Volkswagen
Kimberley, a division of NTT Motors Lowveld (Pty) Ltd.
3.2.
Second, the relief sought in prayers 1 and 3 of the notice of motion
is unenforceable.
3.3.
Third, in prayer 2 of the notice of motion, the applicant seeks a
review of the decision
/ recommendation of the Motor Industry
Ombudsman without complying with the procedure prescribed in Uniform
Rule 53.
0in
; line-height: 150%">
3.4.
Fourth, the applicant has failed to exhaust the internal
remedies provided for under
the Consumer Protection Act, 68 of 2008
(‘the CPA’) before approaching the court.
3.5.
Fifth, misjoinder of the fourth respondent to the proceedings. There
is no explanation
in the founding affidavit for joining the fourth
respondent to the proceedings.
4
On the merits, the first, third and fourth respondents
oppose the
main application
inter alia
on the basis that:
4.1.
In terms of the notice of motion, the applicant claim the replacement
of the motor vehicle
as ‘specific performance’, but she
does not explain in her affidavit on what basis she could
contractually be entitled
to specific performance in the form of the
replacement of the vehicle.
4.2.
Section 5(2)(d) of the CPA precludes the applicant from obtaining an
order in prayer 3
of the notice of motion seeking cancellation of the
instalment sale agreement.
4.3.
To the extent that the applicant’s case for cancellation of the
instalment sale agreement
may be based on the common law basis of a
defect, the election to cancel would have had to be communicated to
the other contracting
party, which did not happen in this case.
4.4.
The applicant has not made a case in her founding affidavit that she
would, on the basis
of section 14(2)(b)(i)(bb) of the CPA, be
entitled to any of the relief sought in the notice of motion because,
the provisions
of paragraph (bb) are subject to those of subsection
3(a) and (b) of section 14 in terms of which the applicant would upon
cancellation
of the agreement have remained ‘liable to the
supplier for any amounts owed’, as well as for ‘a
reasonable cancellation
penalty’. There is no allegation in the
applicant’s founding affidavit, that all outstanding amounts
have been paid
or that payment thereof is tendered.
4.5.
The applicant has not made out a case in the founding affidavit for a
refund of the purchase
price of the vehicle. There is no allegation
in the founding affidavit that when the vehicle was towed in on 12
August 2019 or
at any time thereafter (at least until 15 August
2019), the applicant expressed the wish to be refunded.
4.6.
A loose fuse is not a ‘defect’ for purposes of the CPA,
which would entitle
the applicant to replacement of the vehicle. In
terms of section 53(1)(a) of the CPA, only a ‘material
imperfection in the
manufacture of the goods or components’ or
a ‘characteristic of the goods or components that renders the
goods or components
less useful, practicable or safe than persons
generally would be reasonably entitled to expect in the
circumstances’ would
qualify as a defect. There is no evidence
that the loose fuse had rendered the vehicle ‘less useful,
practicable or safe’
than reasonably expected’ or, that
the vehicle had, as a result of the loose fuse, not been ‘useable
and durable’
for a ‘reasonable period of time’.
4.7.
The applicant has not made out a case in the founding affidavit for a
replacement or a
refund by the first, third, or fourth respondents,
because neither the first respondent, the third respondent, nor the
fourth respondent
was the ‘supplier’ of the vehicle for
purposes of section 56(3) of the CPA. Further, there is no allegation
in the
founding affidavit, that after 15 August 2019, the ‘defect’
appeared not to have been remedied, or that some ‘further
failure, defect or unsafe feature’ was discovered within those
three (3) months.
5
In the discussion below, I deal with the respondents’
grounds
of opposition summarized above. Before doing so, it is necessary to
set out a brief background of this matter.
PERTINENT
BACKGROUND
The following background
facts emerge from the affidavits filed off record and are largely
common cause between the parties.
6
On 1 August 2019 the applicant concluded an instalment
sale agreement
with the third respondent for the sale of a brand new Volkswagen Polo
Vivo 1.0 TSI (‘the vehicle’).
The first respondent (‘NTT
Volkswagen Kimberley’) is the dealership that assisted with the
transaction and delivery
of the motor vehicle to the applicant on 1
August 2019.
7
When the applicant attempted to start the motor vehicle
on 12 August
2019, it would not start and a brash noise emanated from the
ignition. The applicant reported the incident to the
first respondent
and the motor vehicle was towed to the first respondent’s
premises.
8
Later that day at around 16h00 pm, the first respondent
informed the
applicant telephonically that the motor vehicle had been tested and
that it was in working order. The applicant then
proceeded to the
first respondent’s premises. At the first respondent’s
premises, the applicant was given two options,
either to leave the
vehicle with the first respondent until the issue underlying the
complaint recurs or, to take the vehicle and
monitor it herself. The
applicant was then advised that should the issue underlying the
complaint recur, she should call roadside
assistance and a technician
will be dispatched to diagnose the vehicle wherever it may be. The
applicant elected to leave the vehicle
at the first respondent’s
premises.
9
Whilst still at the first respondent’s premises,
the applicant
demanded a diagnostic report, which was given to her by Ms. Tania Van
Wyk (‘Ms. Van Wyk’). On perusal
of the diagnostic report,
the applicant realized that her vehicle was incorrectly described as
a sedan, whereas it is a hatchback.
10
On 13 August 2019 the applicant contacted the third respondent and
explained
her experience. The third respondent informed her to
collect the motor vehicle from the first respondent’s premises
as there
were no defects in the motor vehicle and it was fit for use.
11
On 15 August 2019 a technician reported that the vehicle would not
start,
but instead made a ‘
clack clack
noise’ when
an attempt was made to start it at the first respondent’s
premises. The workshop foreman (Barry Wessels)
assessed the vehicle
and the diagnosis revealed that the fuse pin was not making secure
contact, resulting in a lack of power to
the ignition when an attempt
was made to start the vehicle. The fuse was replaced and inserted in
a different vacant fuse socket,
which allowed for a secure
connection.
12
The applicant was contacted and informed of the status of the vehicle
and
that the matter had been rectified, but the applicant refused to
take delivery of the vehicle.
13
Thereafter, the applicant requested cancellation of the instalment
sale
agreement.
14
On 23 August 2019 the fourth respondent informed the applicant that
the
first respondent had declined the applicant’s request for
cancellation of the agreement.
15
On 27 August 2019 the applicant’s attorneys gave a formal
notice
of cancellation of the instalment sale agreement in terms of
section 14 of the CPA.
16
On 10 September 2019 after complaints by the applicant, a
representative
of the first respondent offered to replace the first
respondent’s vehicle, but when it emerged that the replacement
vehicle
was not available in the applicant’s choice, the
applicant referred the matter to her legal representatives.
17
On 17 September 2019, the first respondent’s attorneys informed
the
applicant’s attorneys that the first respondent was willing
to offer the applicant a replacement vehicle of the same
specifications
as the vehicle purchased by the applicant albeit on a
‘without prejudice’ basis, and that if she was not
willing to
accept that offer, her vehicle was ready for collection.
The applicant was requested to confirm her position before close of
business
on 19 September 2019.
18
On 19 September 2019 the applicant’s attorneys advised that the
applicant
rejected the offer and insisted on cancellation of the
instalment sale agreement
19
On or about 7 October 2019, the applicant lodged a complaint with the
Motor
Industry Ombudsman of South Africa (MIOSA). In its report dated
3 June 2020, MIOSA resolved that as the vehicle was repaired, it
could not support the applicant’s expectation that the supplier
must cancel the deal. The applicant was advised that, should
she
approach the National Consumer Commission, a copy of the Ombudsman’s
file would be supplied to her free of charge.
PROCEDURAL GROUNDS
OF OPPOSITION
Failure to exhaust
internal remedies
20
The first and third respondents have raised as a preliminary point,
the
applicant’s failure to comply with section 69(d) of the
CPA. They contend that the applicant is non-suited on amongst others,
the basis that she approached this Court for the relief sought in the
notice of motion without first exhausting all the other remedies
available to her in terms of national legislation. In this regard,
reference was made to section 69 of the CPA, which provides
that:
“
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.”
21
Mr. Olivier who appeared on behalf of the third respondent at the
hearing
of this matter, submitted that the implication of section
69(d) is to require a consumer to first exhaust all the internal
remedies
before approaching the civil courts. He further submitted
that the ‘other remedies’ referred to in section 69(d)
would
include those provided in sections 70 and 71 of the CPA, like
initiating a complaint with the National Consumer Commission,
approaching
the Consumer Court and approaching the National Consumer
Tribunal.
22
Mr. Olivier further submitted that the import of section 69(d) of the
CPA
is to limit the rights of a consumer to approach a court for
redress, before exhausting the remedies in section 69(a)-(c).
23
Section
69(d) of the CPA has been the subject of various decisions of this
Court and the Free State High Court. The decision of
the Free State
High Court in
Joroy
4440 CC v Potgieter and Another NNO
[1]
is instructive. In that case –
Joroy
4440 CC
,
the Free State High Court dealt with an issue similar to the one
raised by the first and third respondents in this case, thus,
–
whether the applicant had the right to approach this court for
redress without first exhausting her remedies under the
CPA.
24
In that case –
Joroy 4440 CC
, the court per Reinders J
found that section 69(d) of the CPA required a consumer to first
exhaust all the other remedies provided
in terms of national
legislation (
i.e
. the CPA) before approaching the court for
redress.
“
I
am not of the view that s 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. . .”
25
A
similar approach was adopted by the Northern Cape High Court in
Imperial
Group (Pty) Ltd t/a Auto Niche Bloemfontein v MEC: Economic
Development, Environmental Affairs and Tourism, Free State
Government
and others
.
[2]
At paragraph [19] of the Judgment, the court held:
“
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 were specifically enacted to entrench and govern
the
realisation of the fundamental consumer rights under the
Constitution. . .”
26
Then, later at paragraph 21 of the Judgment, the court held:
“
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. . .”
27
These
remarks were endorsed by Olivier J in
Dipico
v Imperial Group Limited t/a Cargo Motors Klerksdorp and Another
(‘Dipico’)
[3]
,
in the
following terms:
“
I
respectfully agree with this. In my view the “clear …
intention of the Legislature”
[4]
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.
[5]
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.’’
[6]
28
Then at paragraph [26] of the Judgment, the court made clear that
failure
to exhaust internal remedies [an internal appeal in that
case] rendered the review premature. The Court observed thus:
“
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).”
29
The
same approach was adopted by Chesiwe J in
Africa
Trading & Supply (Pty) Ltd v City Square Trading 604 (Pty)
Ltd
.
[7]
In that case –
Africa
Tradi
ng,
relying on the principle established by the Constitutional Court in
Chirwa
,
[8]
the court had the following to say about the import of section 69 of
the CPA:
“
[14]
The tribunal as set up by the CPA is a statutory body that can deal
with disputes between a consumer and a supplier. The legislature
has
considered it appropriate to give it jurisdiction to deal with such
disputes. Section 69 is clear and unambiguous. It specifically
stated
that the consumer may approach the court if all remedies have been
exhausted. In terms of section 82(b), the Motor Industry
Ombudsman of
South Africa (MIOSA) deals with dispute resolution between consumers
and the motor industry. There is no evidence
that the plaintiff
approached MIOSA.
[15] In Chirwa
supra
the Constitutional Court held that where a specialised framework has
been created for the resolution of disputes, parties must
pursue
their claim through such mechanisms.
[16] Commentary on the
Consumer Protection Act (Naude and Eiselen Juta states as follows:
‘
Implied
hierarchy. Section 69 does not set out a specific hierarchy or order
according to which the bodies or entities mentioned
in the section
may be approached, save for expressly providing that a (civil) court
with jurisdiction over the matter may be approached
‘if all
other remedies available to that person in terms of national
legislation have been exhausted’. It is, however,
submitted
that s 69, read in context with various other sections of the Act
which impact on it, contains an implied hierarchy.
The preferred
route to redress in terms of this implied hierarchy is that
alternative dispute resolution body should first be approached
in an
attempt to resolve a dispute before a complaint is filed with the
Commission, which can either deal with the complaint or
refer it to
another body in accordance with the provisions of the CPA, or issue a
non-referral.’
[17] It is clear from
section 69 that a consumer has to exhaust all remedies before
approaching a court. As stated in Chirwa that
a specialized framework
created for dispute resolutions must be pursued. The plaintiff gave
no evidence whatsoever that remedies
provided for in the CPA were
exhausted. The plaintiff approached this court as a court of first
instance. As correctly stated by
the defendant, the plaintiff did not
plea or allege non-compliance with section 69, whereas the defendant
in the opposing affidavit
raised the non-compliance with section 69.
The plaintiff further averred in the Rule 37(4) questionnaire that it
was not obliged
to exhaust its remedies in terms of the Act. This
conduct of the plaintiff is unacceptable.
[18] In Joroy 4440 CC v
Potgieter and Another NNO, the court said:
‘
I
am not of the view that s 69(d) can reasonably be construed to have
more than one meaning at all. I am in agreement … 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
the
customer has in terms of this section. I fail to see how any other
interpretation can be given to the word ‘if’.’
[19] In my view, the
plaintiff by claiming that it was not obliged to exhaust all remedies
is incorrect. The legislature by prescribing
these provisions was to
ensure that matters are resolved speedily and are less costly if
resolved at the Tribunal. This further
ensures that the courts are
not overburdened with matters that have a Tribunal to resolve any
dispute between parties.’’
30
In
Imperial
Group (Pty) Ltd t/a Cargo Motors Klerksdorp v Dipico and another
,
[9]
the court
per
Phatshoane
J (as she then was) found the following remarks in the
Commentary
on the
Consumer Protection Act
(Original
Service 2014) by the learned author C Van Heerden in Naude &
Eiselen (eds) to be persuasive:
“
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)
.”
[10]
My emphasis.
31
The principle that emerges from the authorities referred to above, is
that
section 69(d)
of the CPA only limits the right to approach the
civil courts until all the internal remedies have been exhausted.
Section 69(d)
is not the only provision in legislation that limits
the right to approach the courts. Section 7(2)(a) of the Promotion of
Administrative
Justice Act, 3 of 2000 (PAJA) is another. It requires
a litigant to first exhaust internal remedies before instituting
review proceedings.
32
The
obligation imposed on a litigant to first exhaust internal remedies
before approaching the courts is not an unnecessary burden.
It serves
an important purpose of ensuring that the administrative dispute
resolution mechanism provided for in the relevant legislation
is not
undermined. This was explained by Mokgoro J in
Koyabe
and Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as Amicus Curiae),
[11]
albeit
in the context of a PAJA review:
“
[35]
Internal remedies are designed to provide immediate and
cost-effective relief, giving the executive the opportunity to
utilise
its own mechanisms, rectifying irregularities first, before
aggrieved parties resort to litigation. Although courts play a vital
role in providing litigants with access to justice, the importance of
more readily available and cost-effective internal remedies
cannot be
gainsaid.
[12]
[36] (A)approaching a
court before the higher administrative body is given the opportunity
to exhaust its own existing mechanisms
undermines the autonomy of the
administrative process. It renders the judicial process premature,
effectively usurping the executive
role and function. The scope of
administrative action extends over a wide range of circumstances, and
the crafting of specialist
administrative procedures suited to the
particular administrative action in question enhances procedural
fairness as enshrined
in our Constitution
. . .
”
33
The internal remedies provided for in the CPA include those provided
for
in sections 70 and 71. Section 70 allows a consumer who seeks to
resolve a dispute in respect of a transaction or agreement with
a
supplier to refer the matter to either of the following dispute
resolution agents:
33.1.
an
ombud with jurisdiction, if the supplier is subject to the
jurisdiction of any such ombud;
[13]
33.2.
an
industry ombud accredited in terms of section 82 (6), if the supplier
is subject to the jurisdiction of any such ombud;
[14]
33.3.
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;
[15]
or
33.4.
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.
[16]
34
If the
matter is not resolved, and the dispute resolution agent concludes
that there is no reasonable probability of the parties
resolving
their dispute through the process referred to in sub-paragraph 33.1
to 33.4 above, then, 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.
[17]
35
Upon receipt of the complaint, the Commission must investigate the
complaint
and at the end of the investigation, the Commission may do
one of three things. It may either:
35.1.
issue
a notice of non-referral to the complainant in the prescribed
manner;
[18]
or
35.2.
refer
the matter to the National Prosecuting Authority, if the Commission
alleges that a person has committed an offence in terms
of the
Act;
[19]
or
35.3.
if the Commission believes that a person has engaged in prohibited
conduct, it may refer the matter to the
equality court or; refer the
matter to the consumer court of the province in which the supplier
has its principal place of business,
if there is a consumer court in
that province or; refer the matter to the Tribunal.
36
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:
36.1.
the consumer court, if any, in the province within which the
complainant resides, or in which the respondent
has its principal
place of business, subject to the provincial legislation governing
the operation of that consumer court; or
36.2.
the Tribunal, with leave of the Tribunal.
37
If a
matter is referred directly to a consumer court, the respondent may
apply to the Tribunal.
[20]
The
Tribunal must then conduct a hearing into the matter referred to
it,
[21]
and may make any order
including, declaratory order, imposing an administrative fine in
terms, requiring repayment to the consumer
of any excess amount
charged, together with interest, or any other appropriate order.
[22]
38
It is plain from the scheme of the CPA set out above, that the CPA
contains
a comprehensive dispute resolution mechanism to resolve
disputes between consumers and suppliers. The legislative intention
behind
the dispute resolution scheme of the CPA must have been that
disputes between consumers and suppliers must, as the first port of
call, be resolved through the dispute resolution mechanism provided
for in the CPA. It is only in cases where the CPA does not
provide a
remedy or, after exhausting all the internal remedies that a consumer
will be entitled to approach the civil courts for
redress.
39
Surely, allowing a consumer to approach the civil courts for redress
in
circumstances where the CPA provides redress, without first
resorting to the dispute resolution mechanism in the CPA, will
undermine
the scheme of the CPA.
40
It is common cause between the parties that, save for lodging a
complaint
with MIOSA, the applicant did not refer the matter to the
Consumer Tribunal, which is the next level of the internal remedies
provided
for in the CPA. Once it is so, then it follows that the
applicant did not exhaust all the internal remedies provided for in
the
CPA before approaching this Court for redress. That is precisely
the type of conduct that is prohibited in terms of section 69(d)
of
the CPA.
41
Consequently, the applicant’s right to approach this Court for
redress
is limited by section 69(d) of the CPA. She may not approach
this court until she has exhausted all the remedies in the CPA,
including
those referred to in sections 70 and 71.
42
In light of the conclusion I have reached on this point, it becomes
unnecessary
to determine the other issues raised by the parties.
COSTS
43
It is clear from the papers that the applicant felt that she was
bullied
and her rights as a consumer were being infringed by the
respondents. This application, misguided as it may have been, was
evidently
a genuine attempt on her part to vindicate her rights. In
the circumstances, I do not think this is a proper case to award
costs
against the losing party.
CONCLUSION
44
For all the reasons advanced above, I find that the applicant should
have
exhausted all the internal remedies before approaching this
Court for redress, which she has failed to do. The first and third
respondents’ point
in limine
based on section 69(d) of
the CPA is upheld.
ORDER
45
In the result, I make the following order:
1.
Condonation for the late filing of the replying affidavit is granted.
2. The
application is refused for failure to exhaust all the internal
remedies provided for in the CPA.
3. Each
party is to pay their own costs.
M J Ramaepadi
Acting Judge of the High
Court of South Africa, Northern Cape Division, Kimberley
APPEARANCES
For
the Applicant:
Adv.
Lesego Motau
Instructed
by:
Macbeth
Attorneys Inc.
Mbombela
For
the First Respondent:
Adv.
D C Jankowitz
Instructed
by:
Van
De Waal Inc.
Kimberley
For
the Third Respondents:
Adv.
J L Olivier
Instructed
by:
De
Waal Inc.
Kimberley
[1]
2016 (3) SA 465
(FB), -(‘Joroy 4440 CC’).
[2]
[2016] 3 All SA 794 (FB).
[3]
(2212/2017)
[2018] ZANCHC 23
(25 April 2018).
[4]
De
Wet v Deetleffs
1928
AD 286
at 290.
[5]
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).
[6]
Dipico
(supra)
at para 25.
[7]
(227/2018)
[2021] ZAFSHC 29
(18 February 2021);
[2021] JOL 49723
(FB)
-
(‘Africa Trading’).
[8]
Chirwa
v Transnet Limited and Others
[2007] ZACC 23
;
2008
(4) SA 367
(CC) at para 64.
[9]
[2016] ZANCHC 1
(1 April 2016);
[2016]
JOL 35820 (NCK).
[10]
At para 32.
[11]
2010 (4) SA 327 (CC).
[12]
The Constitution obliges the public administration to promote
certain values which foster an accountable, cost-effective,
transparent
and efficient administration. These values are outlined
in section 195(1)(b), which requires that an “(e)fficient,
economic
and effective use of resources must be promoted’’;
section 195(1)(e), which requires that the needs of people “must
be responded to’’; section 195(1)(f), which requires
that public administration “must be accountable’’;
and section 195(1)(g), which requires that “(t)ransparency
must be fostered by providing the public with timely, accessible
and
accurate information.’’
[13]
S 70(1)(a)
[14]
S 70(1)(b)
[15]
S 70(1)(c)
[16]
S 70(1)(d)
[17]
S 70(2)
[18]
S 73(1)(a)
[19]
S 73(1)(b)
[20]
S 75(2)
[21]
S 75(4)
[22]
S 75(4) of the CPA, read with s 150 and 151 of the National Credit
Act, 34 of 2005 (‘
NCA’).