SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
CASE NO: 16586/2024
In the matter between:
WINGFIELD MOTORS (PTY) LTD Appellant/Applicant
t/a BEST PRICE FOR MY CAR
and
NATIONAL CONSUMER TRIBUNAL First Respondent
NATIONAL CONSUMER COMMISSION Second Respondent
WESTBANK, A DIVISION OF FIRSTRAND Third Respondent
BANK LTD
SHAD MARITZ Fourth Respondent
Neutral citation: Wingfield Motors (Pty) Ltd v National Consumer Tribunal and
Others (Case no 16586/2024) [2025] ZAWCHC 381 (26-08-2025)
Coram: NUKU J and O’BRIEN AJ
Heard: 12 June 2025
Delivered: 26 August 2025
Summary: Consumer Protection Act 68 of 2008 – appeal and/ or review in terms of
section 59(3) and 148(2) – whether this Court has jurisdiction to hear the review –
section 1 of PAJA defining the court to include the High Court within whose area of
jurisdiction the party whose rights have been affected is domiciled or ordinarily
resident or the adverse effect of the administrative action was, is or will be
experienced – grounds of appeal same as the grounds of review – appeal and/ or
review dismissed
________________________________________________________________
ORDER
________________________________________________________________
The appeal and the review are dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
NUKU J and O’BRIEN AJ
Introduction and factual background
[1] This is an appeal and/or an application for the review and setting aside of the
decision made by the first respondent, the National Consumer Tribunal (Tribunal), on
23 May 2024. The appeal has been brought in terms of section 148(2), read with
section 59(3), of the National Credit Act, 34 of 2005 (NCA), and the review has been
brought in terms of the same provisions, read together with the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[2] The appellant/applicant is Wingfield M otors Proprietary Limited (Wingfield), a
private company duly registered under the company laws of the Republic of South
Africa. Wingfield specialises in buying and selling used motor vehicles, trading as
Best Price For My Car at various locations, includi ng the corner of Jakes Gerwel and
Milton Drive, Goodwood, Western Cape Province.
[3] The first respondent is the Tribunal, an adjudicative body established under
section 26 of the NCA with jurisdiction throughout the entire country. Its offices are
situated on the Ground Floor, Block B, L […] Office Park, 2[…] W[…] Avenue, at the
corner of W[…] and L[…] North, Centurion, Gauteng Province.
[4] The second respondent is the National Consumer Commission (NCC), a
regulatory authority established under section 85 of the Consumer Protection Act 68
of 2008 (CPA). The NCC’s primary role is to protect consumer interests and to
provide accessible, transparent, and effective redress for consumers. Its offices are
located at Block C, South African Bureau of Standards C ampus, 0 […] D[…] L[…]
Road, Groenkloof, Gauteng Province. Only the NCC opposes the appeal and/or
review.
[5] The third respondent is Wesbank Limited, a division of FirstRand Bank
Limited (FirstRand Bank), a bank duly registered under the relevant banking and
company laws of the Republic of South Africa, with its registered office situated at
[…] E[…] Road, Fairla nds, Johannesburg, Gauteng Province. FirstRand Bank
provided credit to the fourth respondent for the purchase of the motor vehicle,
described more fully below and which is the subject of the appeal and/or review.
[6] The fourth respondent is Mr. Shad Mari tz (the Consumer). He purchased a
motor vehicle described as a 2017 Ford Focus RS 2.3 EcoBoost (vehicle) from
Wingfield on 22 January 2021, financed by FirstRand Bank.
[7] The vehicle was intended for the Consumer’s son, who had seen it
advertised. The p apers filed by Wingfield further describe the vehicle as a relatively
small and light hatchback, equipped with a powerful engine that produces about 257
kW of horsepower, which is why it is referred to as a hot hatchback.
[8] Before purchasing the vehicl e, the Consumer’s son test drove it twice, on 18
and 21 January 2021. Additionally, Wingfield had sent the vehicle to a company
and 21 January 2021. Additionally, Wingfield had sent the vehicle to a company
called Dekra N1 City (Dekra) for assessment and a report on its condition.
[9] According to Wingfield, Dekra's assessment invol ved an experienced
technician test driving the vehicle to check for faults. However, the assessment did
not include a full diagnostic test.
[10] Having completed the assessment in the manner described above, Dekra
issued a report that did not reflect any meaningful faults with the vehicle, other than it
being dirty and having a scratch on the front bumper paintwork.
[11] When the Customer collected the vehicle on 22 January 2021, it had an
odometer reading of 42,960. Three days later, on 25 January 2021, the Customer
called Wingfield to report a burning smell coming from the rear wheel. The Customer
also said that the vehicle’s clutch ‘did not feel right’.
[12] Mr Dale Pheiffer (Mr Pheiffer), a general manager employed by Wingfield,
advised the Customer t o take the vehicle to Barloworld Ford N1 City (Barloworld
Ford) for assessment. This was because, according to Mr Pheiffer, the vehicle was
still under warranty and a maintenance plan.
[13] The Customer did not take the vehicle for assessment immediately but did so
on 2 March 2021. This, according to the affidavit filed by the NCC, was the first
available date that Barloworld Ford could assess the vehicle. According to Wingfield,
the vehicle travelled a further 2,346 kilometres during the intervening perio d, which
equates to an average of about 59 kilometres per day. Wingfield considers this to be
excessive by normal standards.
[14] Barloworld Ford assessed the vehicle and issued an estimate dated 8 March
2021. The estimate includes a section on labour and consumables, which contains
the following inscription:
‘F- CLUTCH FAULTY
C- RR GEARBOX AND TRANSFER CASE, ASSESSED CLUTCH AND
FLYWHEEL, CLUTCH BURNT AND FLYWHEEL BURNT, EXCESSIVE PLAY
ON CLUTCH KIT’
[15] The total estimated costs to repair the damag e to the clutch and flywheel
amounted to approximately R62,218.19. These costs were not covered by the
manufacturer’s warranty, and so Barloworld Ford required payment from the
Customer before carrying out the repairs. The Customer looked to Wingfield to c over
these costs, but Wingfield refused to do so.
[16] Given the short period within which the defects to the clutch and flywheel
manifested, the Customer was also unwilling to pay for the repairs to the vehicle. On
31 March 2021, his attorneys wrote to Wingfield offering to return the vehicle in
exchange for a refund of the purchase price.
[17] Wingfield’s initial response to the tender for the return of the vehicle is not
apparent from the papers. During July 2021, the Customer lodged a complaint with
the Motor Industry Ombudsman of South Africa (MOISA). MOISA assessed the
complaint alongside Wingfield's response and concluded that it could not support the
Customer’s expectations. According to MOISA:
‘[I]t must be noted that clutches are wear and tear frictional items and that neither the
manufacturer nor the dealership has control over the driving style of the said vehicle.
As per the estimate from the Ford dealership, which also indicated that the warranty
will not cover the costs of repair, the MOISA cannot enforce their warranty
parameters. As can be seen, there are burn marks on the pressure plate.’
[18] The record shows that there were further engagements between Wingfield
and the Customer after MOISA's ruling. Evidence suggests that Wingfield was at
some point willing to accept the vehicle back and issue a refund to the Customer.
However, there wa s a disagreement regarding the basis on which Wingfield was
prepared to refund the Customer.
[19] Wingfield’s proposal regarding the refund was to return the monies received
from Firstrand Bank as well as the deposit paid by the Customer. In turn, FirstRa nd
from Firstrand Bank as well as the deposit paid by the Customer. In turn, FirstRa nd
Bank would reimburse the Customer all the instalments paid. The Customer, for his
part, would pay R32,595.60 for usage, calculated at R4.60 per kilometre driven, plus
an additional R27,149 for depreciation.
[20] The Customer accepted responsibility fo r usage but not for depreciation.
Wingfield and the Customer reached a deadlock, and the Customer submitted a
complaint to the NCC under section 71(1) of the CPA.
[21] The NCC investigated the complaint under section 72 of the CPA and
subsequently referred it to the Tribunal under section 73(2)(b) of the CPA, claiming
that Wingfield had violated the provisions of section 55(2)(a) to (c), 56(2)(a) and (b),
and 13(1)(a) and (b) of the CPA.
[22] The referral by the NCC was accompanied by an affidavit sworn by its Deputy
Commissioner, Mr Tshezi Mabuza (Mr Mabuza), to which the NCC's report was
attached. The NCC report, in turn, referenced the estimate that had been prepared
by Barloworld Ford mentioned above.
[23] Wingfield opposed the proceedings before th e Tribunal and submitted an
answering affidavit sworn by Mr. Pheffer, who stated, among other things, that he
had shown pictures of the clutch to Wingfield’s technicians and Mr. Johan White (Mr.
White), a former Ford dealer principal, who all found no sign s of damage to the
clutch plate and that the flywheel and pressure plate showed no signs of burn marks.
Relying on the findings made by the MOISA, Mr. Pheiffer stated that the visible
marks on the flywheel and clutch did not render the vehicle unsuitable f or its
intended purpose nor did they detract from the expected quality.
[24] The NCC submitted its reply papers, after which the matter proceeded to an
oral hearing, where Wingfield was represented by counsel.
[25] The Tribunal issued a decision that, am ong other things, found Wingfield in
breach of section 55(2)(a) to (c) of the CPA, ordered it to refund the purchase price
paid by the Customer, and imposed an administrative penalty of R50,000.00.
[26] Dissatisfied with the Tribunal's decision, Wingfield approaches this court,
exercising its statutory right to appeal or review. Wingfield relies on the same
grounds for its appeal and review, which we set out below.
[27] The NCC opposes the appeal and/or review on various grounds that we
outline below. So me of these grounds were pleaded, while others were only raised
during the argument. These include (a) this Court’s lack of jurisdiction to hear the
appeal and/or review, (b) procedural irregularities affecting the appeal, (c) whether it
is competent to pu rsue an appeal and review of the Tribunal’s decision
simultaneously, (d) the introduction of new evidence on appeal and/or review, and
(e) the merits of the appeal and review.
Issues for determination
[28] Building on the above, the issues that this Cou rt must determine are as
follows:
28.1 whether this Court has the requisite jurisdiction to hear the appeal
and/or the review.
28.2 procedural irregularities relating to:
28.2.1 whether it is permissible to lodge an appeal against the
Tribunal's decision by way of a notice of motion.
28.2.2 whether the appeal had lapsed.
28.2.3 whether it is permissible to appeal and review the
Tribunal’s decision simultaneously.
28.2.4 whether it is permissible for Wingfield to introduce
evidence on appeal or review; and
28.4 whether any of the grounds of appeal and/or review have merit.
[29] Before addressing these issues, we find it necessary to outline the cases
pleaded by Wingfield and the NCC in some detail.
Wingfield’s pleaded case
[30] Wingfield begins by acknowledging that there is little precedent regarding the
required form of the appeal, whether it should be narrow or wide. It also highlights
the lack of clarity about the relev ant formal requirements and timeframes, and
requests condonation if those requirements have not been met.
[31] The core of Wingfield’s appeal is the alleged failure of the NCC or the
Consumer to provide evidence that satisfies the requirements of sectio n 55(2) of the
CPA, which states, in the relevant part, as follows:
‘Except to the extent contemplated in subsection (6), every consumer has a right
to receive goods that-
(a) Are reasonably suitable for the purpose for which they are generally
intended;
(b) Are of good quality, in good working order and free of any defects;
(c) Will be usable and durable for a reasonable period of time, having regard
to the use to which they wo uld normally be put and to all the surrounding
circumstances at their supply.’
[32] Wingfield separately discusses the Tribunal’s findings regarding the breach of
section 55(2)(b), as well as sections 55(2)(a) and (c), and we follow the same
approach in o utlining its pleaded case. We first set out Wingfield’s case regarding
the breach of section 55(2)(b).
[33] Wingfield criticises the Tribunal for its conclusion that ‘the only inference to be
drawn was that the vehicle’s defects and other damages must hav e been present at
the time of its purchase’, asserting that this was not supported by any evidence.
[34] Dealing with what the Tribunal referred to as evidence in its decision,
Wingfield describes this as purported evidence and states that it is ‘notable that there
is a distinct lack of actual evidence that the defects (the faulty clutch and the burn
marks on the flywheel) were indeed present when the vehicle was sold.’ Wingfield
supports this statement by pointing out that the defects were only identified
approximately six weeks after the vehicle had been sold and after it had been driven
approximately six weeks after the vehicle had been sold and after it had been driven
for an additional 2346 kilometres.
[35] Wingfield further alleges that the Tribunal was mistaken in stating that it was
an ‘undisputed fact that the flywheel and clutch experienced problems within three
days after purchase’. It points out that what the Customer reported three days after
the sale was a smell coming from the rear wheel and a clutch that didn't feel right,
and that there could be various explanations for th ese issues, including overheated
brakes and/or an overheated clutch caused by the vehicle being driven hard.
[36] To emphasise its point about the lack of evidence presented to the Tribunal,
Wingfield states that, at that stage, it was uncertain whether (a) a defect existed, (b)
the extent of any defect, or (c) the defect was present at the time of the vehicle's
purchase. Wingfield contends that establishing these factors could only be achieved
through expert evidence, which was not presented to the Tribu nal. Regarding the
estimate submitted by Barloworld Ford, Wingfield criticises this evidence, stating that
it was hearsay, not given under oath, and lacked context from any other evidence. At
best, Wingfield contends, the estimate only indicates the existe nce of defects six
weeks after the vehicle was purchased.
[37] Wingfield criticises the Tribunal for relying on inferential reasoning, arguing
that the panel that heard the case lacked technical expertise in motor vehicle
clutches and flywheels. This, Win gfield contends, is merely impermissible
speculation by the Tribunal.
[38] Turning to the breaches of section 55(2)(1) and (c), Wingfield begins with a
warning that an important consideration in this context is that these subsections are
qualified by phrases such as ‘reasonably suitable for the purpose for which they are
generally intended’, and that one must ‘have regard to the use to which they would
normally be put and to all the surrounding circumstances of their supply’.
[39] Wingfield emphasises th e importance of the qualifying phrases mentioned
[39] Wingfield emphasises th e importance of the qualifying phrases mentioned
above, noting that not all defects identified after the purchase date amount to
breaches of sections 55(2)(a) and (c). It states that this is especially relevant when a
customer buys a used motor vehicle, as a reasonable person would expect ongoing
maintenance needs for such a vehicle. It also highlights that the CPA’s provisions do
not cover damage caused to the goods by the customer's unreasonable use.
[40] Wingfield contends that the Tribunal made an erro r in accepting that the
damage to the vehicle could not have been caused by driver error within three days
or 200 kilometres of use. Wingfield suggests that this mistake stems from the
Tribunal assuming that the extent of the damage reported by the Custome r three
days after the sale was the same as that diagnosed six weeks later, after the vehicle
had been driven for approximately 2,346 kilometres.
[41] Wingfield also criticises the Tribunal for disregarding the evidence from an
independent specialist that Wingfield submitted. According to Wingfield, the
specialist's evidence showed that a flywheel could last up to 150,000 kilometres if
the vehicle is dri ven normally. However, it could also fail before reaching 100
kilometres if the vehicle is used as a sports car.
[42] Wingfield argues that when the Tribunal encounters a factual dispute between
Wingfield’s independent specialist's evidence and that of t he Customer, such a
dispute cannot be resolved without oral evidence and/or cross -examination. It further
contends that the Tribunal's failure to exercise its inquisitorial powers to request
more detailed expert evidence was an error. According to Wingfiel d, the need for the
Tribunal to invoke its inquisitorial powers to seek additional evidence was heightened
by the extensive mileage the vehicle had covered in a short period.
[43] The deponent to Wingfield’s founding affidavit states that it has been
established that the Customer continued using the vehicle after the decision by the
Tribunal. He also references two traffic fines issued to the driver of the vehicle on 9
December 2023 and 5 March 2024, where the driver was travelling at speeds of 90
to 94 and 100 to 104 kilometres per hour, respectively, in excess of the speed limit of
to 94 and 100 to 104 kilometres per hour, respectively, in excess of the speed limit of
80 kilometres per hour. He further states that he attended the Customer’s premises
on 10 July 2024, and upon inspecting the vehicle, he ascertained that its odometer
reading was approximately 67000 kilometres, which would mean that the vehicle has
been driven for approximately 24,000 kilometres since its purchase. Having regard to
all of this, Wingfield infers that the defects could not have been severe.
[44] Turning to the re view, the deponent to Wingfield’s founding affidavit states
that the review is based on the same grounds of appeal. Having said that, he then
lists the provisions of PAJA that Wingfield relies on, namely that:
44.1 the hearing was procedurally unfair, as contemplated in section 6(2)(c);
44.2 the Tribunal was materially influenced by an error of law, as
contemplated in section 6(2)(d);
44.3 the Tribunal’s judgment was arbitrary and/or capricious, as
contemplated in section 6(3)(iv);
44.4 the Tribunal’s judgment was not rationally connected with the reasons
given by it, as contemplated in section 6(2)(f)(ii(dd);
44.5 the Tribunal took irrelevant considerations into account and ignored
relevant considerations, as contemplated in section 6(2)(e)(iii); and/or
44.6 the Tribunal’s conclusion was not rationally connected to the reasons
given by it, as contemplated in section 6(2)(f)(cc);
The case pleaded by the NCC
[45] As has already been stated, the NCC opposes both the appeal an d the
review. NCC’s first ground for opposition raises the issue of this Court's jurisdiction to
hear either the appeal or the review. It contends that this Court lacks such
jurisdiction because the offices of the Tribunal are situated in Centurion, Pretor ia,
Gauteng Province, and are therefore outside the territorial area of jurisdiction of this
Court.
[46] The second ground concerns an objection to introducing new evidence on
appeal or review without prior permission from this Court.
[47] The third ground relates solely to the appeal, claiming that it has lapsed
because it was filed after the deadline specified by the Uniform Rules of Court.
[48] On the merits of the review, the NCC states that its case before the Tribunal
concerning the faults in the flywheel and clutch was based on the estimate by
Barloworld Ford, which indicated that the clutch and the flywheel required
replacement at a cost of approximately R62,218.19, and that this was within the
period of six months after the purchase of the vehicle.
[49] The NCC referred to the answering affidavit submitted by Wingfield to the
Tribunal, in which Wingfield, according to the NCC, stated that:
49.1 the customer was sold a used vehicle and was aware that he was not
purchasing a new motor vehicle;
49.2 if there were defects on the vehicle that Wingfield was definitely
unaware of;
49.3 Wingfield admit s that the Customer contacted it to complain about a
smell emanating from the rear wheel and that the clutch did not “feel
right”;
49.4 Wingfield admits that the quotation from Barloworld Ford found that the
clutch was faulty;
49.5 Wingfield admits that there were some burn marks on the flywheel and
clutch, which Wingfield contends were normal wear and tear; and
49.6 Wingfield submits that the Customer could not expect the same quality
from a pre-owned high-performance motor vehicle as from a brand new
one.
[50] The evidence presented by the NCC, when taken together with Wingfield's
response, according to the NCC, justifies the inference that the Tribunal correctly
concluded that the defects must have existed at the time the vehicle was sold to the
Customer, and therefore the Tribunal's decision is not affected by any irregularity
that would warrant its review or setting aside.
[51] In response to Wingfield’s complaint that the Tribunal ignored the evidence
presented by its independent expert, the NCC contends that Wingfield provided no
such evidence; furthermore, even if such evidence had been presented, it was not
relevant to the issue of implied warranty referred to in section 56 of the CPA.
[52] Wingfield’s reliance on Johan White’s evidence (Mr White) as an allegedly
independent expert was criticised because Mr White, a manager employed by
Wingfield, cannot be considered independent. His seven years’ experience as a
principal dealer, it was contended, does not qualify him to give expert opinion in this
case. Considering all these points, it was contended that the Tribunal’s rejection of
Mr White’s evidence was justified.
[53] The NCC also emphasised that this case concerns Wingfield’s failure to act
as required by section 56 of the CPA, which, in the relevant part, states that:
‘56 Implied warranty of quality
(1) …
(2) within six months after the delivery of any goods to a consumer, the
consumer may return the goods to the supplier, without penalty and
at the supplier’s risk and expense, if the goods fail to satisfy the
requirements and standards contemplated in section 55, and the
supplier must, at the direction of the customer, either –
(a) repair or replace the failed, unsafe or defective goods; or
(b) refund to the consumer the price paid by the consumer, for the
goods.’
Wingfield’s Reply
[54] Not expecting the issue of jurisdiction to be contentious, Wingfield had not
addressed it adequately in its founding papers and was compelled to do so in its
response. It did so by referencing section 1 of PAJA, which grants jurisdiction to any
High Court in South Africa where the affected party is domiciled or ordinarily
resident, and/or where the adverse effect of the administrative action is, was, or will
be experienced.
[55] Wingfield stated that this Court has jurisdiction because its principal place of
business and registered address are within this Court’s area of jurisdiction.
Additionally, the subject matter of the review is located within this jurisdiction, and
the Consumer also resides within this Court’s jurisdiction.
[56] Wingfield’s response to the objection about introducing new evidence was
that it was permissible because the appeal is a so-called wide appeal, which allows
any new notional evidence. It distinguished the authority relied upon by the NCC on
the basis that it only applies in respect of appeals from one court to another. Lastly, it
was stated that, in any event, there are exceptional circumstances justifying the
admission of the new evidence.
[57] Wingfield’s replying affidavit did not address the NCC’s reference to the
answering affidavit that Wingfield had submitted to the Tribunal, as detailed in para
[50] above. The deponent to Wingfield’s replying affidavit only stated that:
‘[T]he contents of these paragraphs are seemingly a synopsis of some of the issues
that served before the Tribunal. It is not necessary to deal with it again herein, save
to repeat what I had already stated in the founding affidavit.’
[58] Wingfield disclaimed any reliance on Mr White as the independent expert
whose evidence was ignored by the Tr ibunal. However, it did not specify who the
expert was that the Tribunal disregarded.
[59] In response to the lapse of the appeal, Wingfield suggested that the NCC was
[59] In response to the lapse of the appeal, Wingfield suggested that the NCC was
also uncertain about the legal position regarding which rules and/or time periods
apply in relation to appeals from the Tribunal. It stated that such uncertainty justified
this Court granting condonation for any procedural lapses.
[60] Having outlined the case presented by each of the parties, we now turn to
consider the issues in dispute, beginning with the issue of jurisdiction.
Does this Court have jurisdiction to hear the appeal and/or review?
[61] The NCC accepted that this Court would have jurisdiction to review if the
review was based on PAJA. However, the NCC argued that the present review is not
based on PAJA but is a so-called statutory review.
[62] This argument was based on the idea that th ere are primarily five types of
administrative law reviews, each with its distinct requirements regarding jurisdiction.
These are (a) reviews in terms of PAJA, (b) reviews in terms of section 33 of the
Constitution of the Republic of South Africa, 1996 (Co nstitution), (c) special statutory
reviews, (d) reviews based on the principle of legality, and (e) reviews in terms of the
common law. For this proposition, the NCC relied on a decision of the Gauteng
Division of the High Court, Pretoria in Kwinana1 where that court stated that:
‘There are five primary routes for administrative law re view: PAJA, section 33
of the Constitution, special statutory review, the principle of legality, and the
common law.’
[63] Relying on the decision of the Constitutional Court in Baloyi2, it was argued
that jurisdiction is determined based on the case pleaded by a litigant. The pleadings
in this matter, it was contended, clearly show that the review is brought under
sections 59(3) and 148(2)(a) of the NCA. The reference to the provisio ns of PAJA
was necessary because section 148(2) does not specify the grounds for review. In
such cases, the grounds are found in PAJA, but this does not convert a statutory
review into one under PAJA. The final submission was that the only court with
review into one under PAJA. The final submission was that the only court with
1 Yakhe Kwinana v The Chairperson of the Disciplinary Inquiry instituted by the South African Institute
of Chartered Accountants and Another, case no: 2023-019726 at para 53
2 Baloyi v Public Protector and Others 2022 (3) SA 321 (CC) at para [33]
jurisdiction over the review in this matter is the Gauteng Division of the High Court,
Pretoria, due to the location of the Tribunal’s offices.
[64] Wingfield persisted with the argument raised in its pleading s, relying on the
provisions of section 1 of PAJA that this Court has jurisdiction because it is the court
within whose area of jurisdiction the party whose rights have been affected is
domiciled or ordinarily resident or the adverse effect of the administrative action was,
is or will be experienced.
[65] Wingfield argued that, in any event, this court has jurisdiction under section
21(1) of the Superior Courts Act, 10 of 2013, as well as at common law. Reference
was made to the ca usae continentia principle, which dictates that where one court
has jurisdiction over part of the cause of action, considerations of convenience,
justice, and good sense justify its exercising jurisdiction over the entire cause of
action. Additionally, the fact that the sale of the vehicle was concluded within the
area of jurisdiction of this Court, it was submitted, confers jurisdiction on this Court.
In support thereof, this Court was referred to the decision of this Court in Van Wyk
t/a Skydvive Mossel Bay v UPS SCS South Africa (Pty) Ltd3(Van Wyk).
[66] The objection to this Court's jurisdiction can be swiftly addressed. The NCC’s
reliance on Kwinana is misplaced because, in the same passage relied upon by the
NCC and after listing the five pathways for reviews, the court states ‘The first four
paths relate to the review of an administrative action (as per section 1 of PAJA)…”.
[67] It follows from the above passage that statutory review contemplated in
section 148(2) of the NCA relates to the review of an administrative action as defined
in section 1 of PAJA. Consequently, Wingfield’s review pertains to the review of an
administrative action as defined in section 1 of PAJA.
[68] As submitted on behalf of Wingfield, section 1 of PAJA also defines a court to
[68] As submitted on behalf of Wingfield, section 1 of PAJA also defines a court to
include a High Court where the party whose rights have been affected is domiciled or
ordinarily resident, or where the adverse effect of the administrative action was, is, or
3 1 All SA 857 (WCC)
will be experienced. There is no doubt that the adverse effects of the Tribunal
decision are felt or will be felt by Wingfield within this Court's jurisdiction. Wingfield
also conducts business within this Court's jurisdiction.
[69] If the legislature had intended to limit the jurisdiction of the High Court to the
area where the Tribunal has offices, it would have legislated accordingly. The fact
that a decision of the Tribunal is an administrative action implies that jurisdic tion
must be determined in terms of PAJA.
[70] The suggestion by the NCC that different requirements for jurisdiction exist for
the various pathways of administrative law reviews conflicts with the Constitutional
Court decision in Fuel Retailers Associati on4, where the court, dealing with a
review under section 36 of the Environmental Conservation Act 73 of 1989 —which
also did not specify grounds of review —stated that ‘the cause of action for the
judicial review of administrative action now ordinarily arises from PAJA and not from
the common law as in the past.’ Clearly, if Wingfield’s cause of action now ordinarily
arises from PAJA, it follows that the jurisdiction of a court must also ordinarily arise
from PAJA. The NCC’s objection to the jurisdiction of this Court is without merit. We
turn next to the objections based on procedural irregularities.
Procedural irregularities
[71] The NCC raised four procedural complaints. The first concerns the initiation of
an appeal via a notice of motion. This was not pleaded by the NCC , but was raised
for the first time in its heads of argument. The NCC submitted that section 148(2)(b)
of the NCA does not envisage an appeal in the form of an affidavit. For that reason, it
was argued on behalf of the NCC that an appeal under section 148(2 )(b) of the NCA
should be initiated by way of a notice of appeal outlining the grounds of appeal,
rather than by way of a notice of motion supported by an affidavit. In this regard the
rather than by way of a notice of motion supported by an affidavit. In this regard the
4 Fuel Retailers Association of Southern Africa v Director -General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007
(6) SA 4 at para [37]
NCC relied on a decision of the Gauteng Division of the High Court, Gau teng,
Johannesburg in Stenersen.5
[72] Wingfield, understandably, had not addressed this issue in its heads of
argument as they were filed before NCC’s he ads of argument were delivered. It
attempted to address the issue by referring to the divergence of approaches to
statutory appeals within the context of appeals under the Community Schemes
Ombud Services Act, 9 of 2011.
[73] Since the matter was not rais ed in the NCC’s papers, we consider that it is not
properly before us, and therefore, it is not permissible for us to decide it. This view is
based on our understanding that the court’s role is to adjudicate disputes by applying
legal principles to the evidence as presented by the parties.
[74] It has been repeatedly stated that the affidavits in motion proceedings serve
as pleadings and evidence. It was open to the NCC to raise the dispute in its
answering papers, but it chose not to. To now expect the c ourt to decide on it in the
abstract undermines the proper functioning of the court’s system. We accordingly
decline to determine the issue of the form which the appeal, under section 148 of the
NCA, should take. Next, we consider the complaint relating to the lapsing of the
appeal.
[75] Although this issue of the lapsing of the appeal had been raised in the papers
filed by the NCC, it was not addressed by either party in their written submissions or
during oral argument. The NCC was content to limit its s ubmissions to arguments
concerning the impermissibility of initiating an appeal by way of a notice of motion,
as well as its objection to the simultaneous lodging of an appeal and review
regarding the same decision. Considering this, we must accept that th e NCC
abandoned the challenge, making it unnecessary for us to decide on it. We,
therefore, do not determine the issue and proceed to consider the objection against
the simultaneous lodgement of an appeal and review.
the simultaneous lodgement of an appeal and review.
5 Stenersen and Tulleken Administration CC v Linton Park Body Corporate and Another 2020 (1) SA
(GJ)
[76] As outlined in the NCC’s pleaded case, the objection to lodging an appeal and
a review simultaneously was also not raised in the papers filed by the NCC. Based
on the reasons behind our decision not to address the objection to initiating an
appeal by way of a notice of motion, we believ e it would be inappropriate for us to
decide on an issue that was not pleaded. We, therefore, do not determine this
objection as it is not properly before us. That leaves only the issue of the introduction
of evidence on appeal, an issue we turn to next.
[77] Similarly, regarding the issue of the appeal lapsing, neither party addressed the
objection to the introduction of evidence on appeal and/or review in their written or
oral submissions. Assuming that the NCC decided to abandon the issue, we
therefore do not decide it. That then leaves the merits of the appeal and/ or review.
The merits of the appeal and/ or review
[78] Wingfield relies on the same grounds for its appeal and review as previously
stated. During arguments, Mr. Steenkamp, who represented Wingfield, contended
that, on the merits, Wingfield's case is based on three broad grounds: (a) the
Tribunal erred in its interpretation of the CPA, (b) there was insufficient evidence
before the Tribunal, and (c) the Tribunal erred in failing to exercise its inquisitorial
powers to summon more evidence.
[79] On the interpretation of the provisions of CPA, the submission on behalf of
Wingfield was that the Tribunal took a simplistic view of section 56 because the
defects manifested within a six -month peri od referred to in that section. The
submission was that section 56 should be read together with the qualifying phrases
in section 55 to determine whether a defect falls within the parameters of what is
‘reasonably entitled to expect in the circumstances.’ It was submitted that the
Tribunal's decision is, at best, ambiguous regarding the interpretation of the CPA
provisions.
provisions.
[80] Turning to the lack of sufficient evidence and the Tribunal’s failure to exercise
its inquisitorial powers to call for more evid ence, Wingfield heavily relied on the
decision of the Supreme Court of Appeal in Motus6 to support its argument that not
every minor defect qualifies as a defect as defined.
[81] In evaluating the arguments put forward by Wingfield, it is important to note
that there were certain issues with the vehicle on the third day after the Customer
took delivery. These problems involved a smell coming from the rear and a clutch
that did not feel right, as reported by the Customer.
[82] Approximately six weeks after delivery, the Customer took the vehicle to
Barloworld Ford for an assessment, prompted by Wingfield. The assessment
confirmed that the vehicle indeed had some issues with the clutch an d flywheel. The
cost to repair the clutch and the flywheel, according to the estimate issued by
Barloworld, would be over R62 000.
[83] Even though Wingfield suggests that the Tribunal failed to properly interpret
the provisions of sections 55 and 56 of t he CPA, we did not understand Wingfield to
be suggesting that a motor vehicle with a clutch and flywheel that requires
replacement is reasonably suitable for the purposes for which they are generally
intended, as contemplated in s 55(2)(a), or of good qual ity, in good working order,
and free of any defects, as contemplated in s 55(2)(b), or will be usable and durable
for a reasonable period of time, having regard to the use to which they would
normally be put and to all the surrounding circumstances of thei r supply, as
contemplated in s 55(2)(c). Indeed, it can hardly be suggested that a motor vehicle
that requires the replacement of a clutch and flywheel do not meet any of the
requirements of s 55(2)(a) to (c).
[84] In an attempt to overcome the above-mentioned obstacle, Wingfield resorts to
obfuscation. It initially suggests that the estimate by Wingfield is not evidence,
despite never having challenged the estimate before. Instead, its stance was that it
was not willing to pay for the repair costs, as req uired under section 56(a) of the
was not willing to pay for the repair costs, as req uired under section 56(a) of the
CPA. Wingfield could have taken the vehicle for assessment if it disputed the
estimate prepared by Barloworld Ford, but it never did.
6 Motus Corporation (Pty) Ltd and Another v Wentzel [2021] 3 All SA 98
[85] When it accepts the estimate, supposedly as a generous act towards the
Tribunal, it criticises the same estimate for not having been tested through oral
evidence and/or cross-examination. However, there was never a need to do so when
Wingfield never provided evidence to dispute the findings by Barloworld Ford.
[86] Motus, in our view, is entirely distinguishable from the present case. The
defects considered in Motus were (a) loose back panels of the vehicle, (b) a ticking
sound when the engine was hot or after the car had been driven, and (c) a complaint
that the air -conditioning was no t blowing cool air. Regarding these defects, the
footnotes to the judgment record that (a) it was difficult to identify what the complaint
was about in respect of the loose back panels, (b) it was unclear whether the ticking
sound was anything more than th e sound of an engine cooling down, and (c) the job
card made no mention of the air-conditioning not blowing cool air. Clearly, the issues
in Motus required more investigation as they were not immediately obvious.
[87] The same cannot be said of a faulty clutch and flywheel. Once again,
Wingfield did not suggest that a motor vehicle requiring the replacement of these
parts is free of defects. The shift in stance was to question whether these defects
existed at the time the vehicle was sold to the Customer. However, as the NCC
points out, this approach overlooks the fact that Wingfield, under section 56(2)(a) of
the CPA, was required to cover the costs of repairs. The provisions of section 56 are
explicit; they apply to all goods without exception, and Wingf ield's attempt to argue
that section 56 does not apply to used goods is misplaced.
[88] It was Wingfield's intransigence that caused the Customer to tender the return
of the goods. This was still within the six -month period specified in section 56. When
Wingfield attempted to accept the return of the vehicle, it tried to penalise the
Wingfield attempted to accept the return of the vehicle, it tried to penalise the
Customer by claiming it was entitled to charge depreciation, alongside the statutorily
permitted deduction for motor vehicle use based on the mileage travelled.
[89] To the extent that Wingfield claims that the defects in the clutch and the
flywheel were caused by the manner of driving of the Customer or his son, Wingfield
did not present any evidence to support that claim but merely speculated. With the
evidence pointing to the presence of the defects, it was for Wingfield to prove that
vehicle goods had been altered after leaving its control. To overcome this obstacle,
Wingfield shifts the responsibility to the Tribunal, suggesting that it was for it to prove
that the defects were not due to the manner in which the vehicle was driven.
[90] The approach taken by Wingfield is detrimental to the very purpose of the
CPA and the NCA. Wingfield could have easily settled this issue at the point when
the Customer merely asked Wingfield to pay for the repairs. Wingfield refused
despite the obligations imposed by section 56(2)(a) of the CPA.
[91] When the Customer resorted to tendering the return of the vehicle, as he is
entitled to under section 56(2)(b) of the CPA, Wingfield would have none of that. But
for the intervention of the NCC and the Tribunal, the Customer woul d have been left
out in the cold. And that would have completely undermined the provisions of the
CPA.
[92] None of the grounds of appeal and/or review ha ve merit, and both should be
dismissed with costs.
Conclusion
[93] To conclude, this court has the jurisdiction to hear this appeal and/or review.
The review powers are derived from section 1 of PAJA, which defines a court to
include a High Court situated where the effects of the administrative action will be
felt. Once j urisdiction is established in respect of the review, that is the end of the
enquiry in respect of the issue of jurisdiction.
[94] The procedural objections pleaded by the NCC were abandoned in favour of
those that had not been pleaded. Consequently, we di d not need to decide on the
procedural objections that were abandoned. Similarly, we did not decide on the
procedural objections that were not pleaded.
[95] None of the grounds for appeal and/or review has any merit, and both the
appeal and the review cannot succeed.
Order
[96] As a result, we make the following order:
The appeal and/ or the review are dismissed with costs.
______________________________
L G Nuku
Judge of the High Court
______________________________
S C O’Brien AJ
Acting Judge of the High Court
APPEARANCES:
For the Appellant: JP Steenkamp
Instructed by: Carlo Swanepoel Attorneys
Bellville
For the Respondents: Adv K Monareng
Instructed by: Mogaswa & Associates Inc. Attorneys
Roodepoort