REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CAS E N o: 2653/2016
(1)
(2)
(3)
R EPORT A BLE : Y ES /NO
OF INT EREST TO THE JU DGES : Y ES /NO
RE V ISED : Y ES/NO
SIGNATURE DATE
In the matter between:
DADA 'S WO RL D O F HARDWA RE
and
A PPLICA NT
TH E CONSUM ER PRO TE C TOR LIMPOPO FIRST R ESPOND ENT
PAM NDOU N .O . S ECOND R ESPOND ENT
K KGA TLA N .O . TH IRD R ES POND ENT
S H LET SOALO N .O . FOURTH R ES POND ENT
M MAS EMO LE N .O . FIFTH R ES POND ENT
LP MAS HA S IXTH R ESPOND ENT
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JUDGMENT
DIAMONDAJ:
[1] The App licant is a building ma terials merchant in Polokwane.
[2] The 6th Responden t purchased certain building materials from the
App licant on or about the 8th of July 2008 and paid the purchase
price.
[3] The 6th Respondent indicated that he w ished the A pplicant to
deliver the building ma terials to the building site and paid the
additional delivery fee of R 700 000-00.
[4] After the above chronology, the versions of the parties diverged.
[5] The Applicant states that the customer 's copy of the invoice for the
ma terial w as taken to the Applicant's materials yard by the person
collecting the building ma terials. The customer 's copy of the
invoice, w hich reflected a delivery fee of R?00 .00, w as cancelled
w ith the inscription "Loading Se lf." The Applicant further maintains
that the delivery fee w as refunded to the person w ho collected the
ma terials.
[6] Somebody collected the building ma terials and left.
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[7] The 6th Respondent's version is that he did not collect the
materials, nor did he authorise anybody to do so on his behalf. He
never received any materials. He w aited for delivery to take place,
but it never took place.
[8] After the incident, the Applicant, apparently suspecting the
involvement of one of its employees, laid a criminal charge against
the employee and discharged her.
[9] The criminal prosecution failed, due to a lack of evidence.
[1 O] The 6th Responden t lodged a comp laint w ith the first Respondent
regarding the incident.
[11] After an exchange of correspondence, the First Respondent
issued a docume nt entitled "SU MMONS INITIATING
PROCEEDINGS BEFORE THE CONSUMER AFFAIRS COURT
CONSUMER AFFAIRS (UNFAIR BUSINESS PRACTICES ) ACT
1996 (ACT NO. 8 of 1996)" and the document indicates that it is
issued in terms of Section 18(1) and Reg ulation 13(1) of this Act.
[12] The documen t contained an annexure w hich is called an
"PARITCULARS(sic) OF C LAIM ". The Applicant filed a
docume nt: Notice of Intention to Defend and filed a document
w hich w as called a Plea.
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[13] Eventually, a hearing took place on the 19th day of July 2012,
and the first Responde nt, by w ay of the Consumer Affairs Co urt,
gave a judgment on the 27th of September 2012.
[14] The Consumer Affairs Court gave the follow ing judgment:
"That the Respondent should deliver the goods in seven days;
failing which, the complainant will have to obtain an invoice and
seek another supplier. The Respondent will be compelled to pay
for the goods within seven days.
Failing which, the order will be up to the value of goods up to
date, that is, including interest.
Failing which, a warrant will then be issued for execution by the
sheriff."
[15] The Applicant brings this review application alleging that the
conduct of the Cons umer Affairs Co urt fell short of the standards
legislated in the Promo tion of Adm inistrative Justice Act, 2000.
[16] The App licant alleges that the Consumer Affairs Court w as
biased during the proceedings. The Applicant contends that the
Cons umer Affairs Cou rt, w hile the proceedings had commenced
but w ere not yet concluded, and before the Applicant's version
had been fully heard, indicated that the Applicant should settle
the ma tter and that its version w as improbable.
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[17] I do not dw ell on the basis of the review application or the
grounds on w hich the first Respondent opposes the relief, for
reasons that w ill become clear hereafter.
[18] As a preliminary step to adjudicate this application, one should
get a clear understanding of the nature of the proceedings that
took place before the First Respondent.
[19] In terms of the papers before this court, these proceedings are
brought in terms of the Consumer Affairs (Un fair Business
Practices) Act, Act No N umber 8 of 1996, Limpopo. I w ill,
henceforth, refer to this act as the" Un fair Business Practices
Act".
[20] The Applicant explains in its founding affidavit that it cited the
First Respondent in its capacity as the appointed Consumer
Protector in terms of section 4(1) of the Unfair Business Practices
Act.
[21] The App licant further explains that it cited the 2nd, 3rd, 4th and
5th Respondents in their capacities as appointed members of the
Consumer Affairs Court, created by Section 13 of the Unfair
Business Practices Act.
[22] The Second Respondent is cited in his capacity as the
chairperson of the Act, and the others as members of the
Consumer Affairs Cou rt.
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[23] As a preliminary ma tter, it is important to address two issues.
First, w hat types of proceedings may be adjudicated by the
Consumer Affairs Court? Second, w hat pow ers does the court
have under its enabling legislation - that is, w hat types of orders
is the Consumer Affairs Court empo w ered to make?
[24] With regard to the first question, Section 17(1 )(a) of the Unfair
Business Act stipulates as follow s:
"shall hear, consider and make a decision on, any matter which
is before it by virtue of proceedings envisaged by this Act.
[25] It is, in my view , clear that before the Consumer Affairs Court can
adjudicate on a matter, the ma tter mus t be before it "by virtue of
proceedings envisaged by this Act." Wha t are the procedures
envisaged in the Unfair Business Act?
[26] A reading of the U nfair Business Acts reveals the follow ing:
• Section 20 (1) states that the court may , if satisfied from
information placed before it, render that the matter is
urgent and that irreparable prejudice will be caused to a
consume r or any group or class of consumers if the matter
is not heard urgently. It may then issue a temporary order
prohibiting any person from performing any act connected
w ith an unfair business practice.
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• Section 21 states that the Business Affairs Court shall
confirm an arrangement in terms of Section 11 of the Act
• Section 21 states that if the Consumer Affairs Court is
satisfied that an unfair business practice exists or may
come into existence, and has not confirmed the
arrangement, the court may issue such order as may be
necessary to ensure the discontinuance or prevention of
the unfair business practice. Furthermore, the section
states that if the court finds that money w as accepted from
consumers in the course of unfair business practice and it
is necessary to limit or prevent financial loss to those
customers, the court may order any person to repay such
money to the affected customers, together w ith the
interest at the prescribed rate.
[27] The question is: w hat w as the nature of the proceedings
investigated by the Limpopo Consumer Protection Office and
eventually adjudicated on by the Unfair Business Court? In my
view , it is clear w hat the nature of the proceedings w as, and it
cannot be stated in a better w ay than in the w ords of the
deponent representing the first Respondent. The deponent
states in paragraph 6.8:
"The Consumer Affairs Court made an order to the effect that the
Applicant has committed unfair business practices and that the
Applicant should deliver the roofing material to the seized
Respondent."
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[28] The Deponent further explains the comment made during the
proceedings that the Applicant should consider making an offer.
This commen t w as made w ithin the context of Section 11 (2) of
the Unfair Business Act, w hich provides that an arrangement
may be concluded at any time after the institution of the
investigation but before the mak ing of a final order by the
Consumer Affairs Court. The argument of the Deponent, so it
seems to me , is that w hen one of the members of the Consumer
Affairs Cou rt opined that the Applicant should come to an
arrangement in terms of Section 11, then such a remark cannot
be interpreted as being conduct by displaying bias.
[29] Then, in paragraph 21.6 of the answ ering affidavit, the
Deponent states the follow ing:
"Furthermore, whatever comment that was allegedly made
could not change the exact nature of the matter; namely,
whether the Applicant is vicariously liable and responsible for
the actions of employees."
[30] It is therefore clear that the Consumer Affairs Court regarded
the matter fully w ithin the context of the Unfair Business
Practices Act.
[31] In the judgment that the court delivered, there w as a reference
to section 26 (2) of the Consumer Protection Act, 2008 (Act 68
of 2008)(the "Consumer Protection Act"), w hich requires that for
every transaction there should be a record of the terms and
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conditions of the agreement. In this instance, the court opined
there was not such a record.
[32] In the judgment that the Consumer Affairs Court delivered,
there was reference to section 26 (2) of the Consumer
Protection Act, w hich requires that for every transaction there
should be a record of the terms and conditions of the
agreement. In this instance, the court opined there was not such
a record. The court states there was not, and it appears that the
Applicant was in constant breach of this duty by the manner in
w hich he conducts his business, in particular w ith transactions
of this nature. The court states1
"I refer to the transaction where there has been a purchase, a
quotation issued, and payment made , and subsequent to that,
the generation of an invoice. It is clear that the Respondent has
failed to produce an invoice, and by so doing, even if the terms
and conditions of the agreement are not in writing, it is required
by the Act, in particular Section 26 (2 ), that, and I will quote:
"Even if the terms and conditions are not in writing, a supplier
of goods or services must provide a written record of every
transaction ........ ""
[33] In my view , the entire Unfair Business Protection Act provides
mechan isms and procedures to act against unfair business
practices.
[34] It is therefore imperative to take cognizance of the word
definitions in the Un fair Business Act:
"business" means -
1 Page 3 of the judgment.
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(a) offering, supplying or making available any commodity; or
(b) soliciting or receiving any investment;
and
"business practice" includes-
(a) any agreement, accord or undertaking in connection with
business, whether legally enforceable or not, between two or
more persons;
(b) any scheme, practice or method or trading in connection
with business, including any method or marketing or
distribution;
(c) any advertising or type of advertising or any other manner of
soliciting business;
(d) any act or omission in connection with business on the part
of any person whether acting independently or in concert with
any other person; and
(e) any situation in connection with the business activities of any
person or group of persons, but does not include a restrictive
practice, acquisition or monopoly situation as defined in section
1 of the Maintenance and Promotion of Competition Act, 1979
(Act No. 96 of 1979);
and finally
"unfair business practice" means any business practice which,
directly or indirectly, has or is likely to have the effect of.-
(a) harming the relations between businesses and consumers;
(b) unreasonably prejudicing any consumer;
(c) deceiving any consumer; or
(d) unfairly affecting any consumer.
[35] Furthermore, Section 11 of the Unfair Business Practices Act
stipulates as follows:
"11. Negotiation of arrangements to discontinue unfair business
practice.-
(1) The office may negotiate and conclude an arrangement with
any person for--
(a) the discontinuance or avoidance of unfair business
practice;
(b) the reimbursement, with interest, to affected consumers;
(c) the discontinuance or avoidance of any aspect of unfair
business practice; or
(d) any other matter relating to unfair business practice.
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[36] In my view , the pivotal definition is that of "business." The term
"business" refers to the offering. supplying or mak ing available
any commodity to the public.
[37] In my view , the meaning of "offering," "supplying," or "making
available" is clear: each w ord is used as a gerund, w hich is a
verb ending in "ing" that functions as a noun w ithin the
sentence. This usage emphasise the process or activity of
offering, supplying, or mak ing available. In other w ords, these
terms represent an ongoing componen t, a structural aspect of
the w ay a supplier interacts w ith customers in business in
general.
[38] The terms "business practice" and "unfair business practice"
elaborate further on this basic definition.
[39] In my view , it is evident that, before the mechanisms of the
Un fair Business Act can be activated and applied, a supplier
must generally engage in business conduct that is objectionable
under the provisions of the Unfair Business Act.
[40] To apply all of this to the facts under consideration: can it be
said that the facts before the court display a manner of conduct
by the Applicant in general w ith customers in general, or do the
facts point to a dispute w hich developed between a supplier and
a customer in a single transaction?
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[41] That the Consumer Affairs Court w as aw are of the need for
some structural element or general pattern of conduct by the
Applicant to bring the dispute w ithin the ambit of the Unfair
Business Practices Act is evident from the remark cited in
paragraph 32 above. The Consumer Affairs Court found that the
Applicant w as in constant breach of his duty by the manner in
w hich he conducts his business, particularly in transactions of
this nature.
[42] This remark by the Cons umer Affairs Court that the applicant to
w as engaged in a general pattern of conduct, is in my view ,
now here substantiated by the evidence before this Consumer
Affairs Court.
[43] Once again, the w ords of the Deponent for the first Respondent
are instructive: In paragraph 21 .6 of the affidavit, the Deponen t
described the "exact nature" of the inquiry before the court as
the question, " whether the Applicant is vicariously liable and
responsible for the actions of employees."
[44] This type of dispute is purely a dispute between two parties to
a contract to be adjudicated, employing the principles of the law
of contract and/or the law of delict. It is therefore of a nature that
falls squarely w ithin the amb it of the courts of the law of the
country.
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[45] In summary , w hat appears from the record are allegations by
the 6th Respondent that, if proven by him, w ould lead to the
conclusion that the Applicant is in breach of contract
alternatively delictual liability tow ards the 6th Respondent. The
dispute does not involve an unfair business practice, as defined
by the Unfair Business Practices Act.
[46] In my view , the investigation against the Applicant, w hich w as
conducted in terms of Section 6(1) of the Unfair Business Act,
could never have proceeded w ithin the four corners of that Act,
as it does not exhibit any Unfair Business Practice as defined
and discussed above. Rather, it merely points to a breach of
contract or a delict committed by the Applicant, if proven, and
any subsequent actions arising from that investigation could not
constitute proceedings envisaged by the Act.
[47] In my view , the order of the unfair consumer court should be
review ed and set aside by virtue Section 6(2)(f)(i) because the
order w as made by the Consumer Affairs Court in a w ay that
w as not authorised by the empo w ering provisions of the Unfair
Business Practices Act.
[48] Neither of the parties argued any of the above at the date of the
hearing of this application. The question is whether the court
w ould be entitled to adjudicate the application on the basis set
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out above in circumstances w here the parties did not argue the
application on the above basis.
[49] Gu idance can be found in the case of Minister of Justice and
Constitutional Development and Others v Southern African
Litigation Centre and Others2 in w hich the Supreme Co urt of
Appeal stated:
"It is that if a point of law emerges from the undisputed facts
before the court it is undesirable that the case be determined
without considering that point of law. The reason is that it may
lead to the case being decided on the basis of legal error on the
part of one of the parties in failing to identify and raise the point
at an appropriate stage. But the court must be satisfied that the
point truly emerges on the papers, that the facts relevant to the
legal point have been fully canvassed and that no prejudice will
be occasioned to the other parties by permitting the point to be
raised and argued.
[50] In my view , the question of w hether the Consumer Affairs Court
w as entitled to take particular action and ma ke the order clearly
emerge from the papers, and the full facts are properly
ventilated. It w ould lead to an error of law to ignore this and
proceed w ith a judgment on the basis that the action fell within
the amb it of the Unfair Business Act purely because the parties
did not argue it before the court. I do not think any of the parties
is prejudiced by this court giving this order on this basis.
I consequently make the follow ing order:
2 [2016] ZASCA 17; 2016 (3) SA 317 (SCA ) para 24.
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(a) The ruling made by the 2nd to the 5th Respondents, sitting
as the Consumer Affairs Court on the 27th of September
2012, under case number LCC44 /09/10, is hereby review ed
and set aside.
(b) The Applicant is ordered to pay the costs of the
Respondents, and the costs of counsel shall be taxed on
scale B, as is contemplated in Rule 67 A (3)(a).
APPEARANCES:
G J DIAMOND
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION , PO LO KWAN E
FOR THE APPLICANT : Adv . W H YOUNG
INSTRUCTED BY : :TAR ATTORNEYS
:e-mail: taromar@telkomsa .net
FOR THE RESPONDENT :Adv M S Mphahlele
INSTR U CTED BY :
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:The State Attorney,
Polokwane Ref: 834/16 MAS
:armasekoame ng@j ustice.gov.
za.
DATE OF HEARING: 27 MARCH 2025.
DATE OF JUDGMENT: 3 NO V EMBER 2025.
This judgment w as handed down electronically by circulation
to the parties' representatives by ema il. The date and time for
hand-down of the judgment is deemed to be 13 NOV EMB ER
2025.