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[2026] ZAGPPHC 169
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Cell C Ltd v Williams and Another (A46/2025) [2026] ZAGPPHC 169 (18 February 2026)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO.:A46/2025
(1)
REPORTABLE: N
(2)
OF INTEREST TO OTHER JUDGES: N
(3)
REVISED: Y
(4)
Signature:
Date:
18/02/26
In
the matter between:
CELL
C
LTD
Applicant
and
JULIA
WILLIAMS
First Respondent
NATIONAL
CONSUMER TRIBUNAL
Second Respondent
JUDGMENT
Kumalo
J (with Francis-Subbiah J concurring)
INTRODUCTION
[1].
This is an appeal brought in terms of
section 148(2)(b) of the National Credit Act, 2005 (the “Act”),
against the order
of the National Consumer Tribunal (“NCT”),
the Second Respondent in the matter.
[2].
The NCT made findings that the Appellant
contravened the provisions of sections 4(5)(b), 54(1)(b),
51(1)(b)(i), (ii), and (iii)
and 48(1)(a)(i)(ii) and (c)(iii) of the
Act and declared the contraventions prohibited conduct in terms of
section 150(a) of the
Act.
[3].
The Appellant was ordered to refund the
First Respondent the amount of R7 480.32, the amount alleged
that the Appellant charged
over the limit on her account, and an
interdict was granted restraining the Appellant from engaging in
similar prohibited conduct
in the future.
[4].
Further, the Appellant was issued with an
administrative fine in the amount of R500 000.00 payable within
thirty days of the
judgment and to pay the First Respondent’s
legal costs on the Magistrate’s Court party and party scale.
[5].
The Appellant appeals against this decision
on various grounds, which this court does not intend to regurgitate
herein. The First
Respondent also filed a cross-appeal against the
Magistrate's Costs order and submitted that it ought to have been
granted a cost
order based on the High Court scale.
[6].
The facts of this case are almost common
cause. On 4 May 2022, the First Respondent contacted the Appellant’s
call centre
by telephone on four occasions and spoke with four
different operators.
[7].
She confirmed to the operators that she had
already visited the Appellant’s website to familiarise herself
with the roaming
charges applicable to her intended destinations. She
referred to three distinct rates applicable to different geographic
areas
or foreign networks. She confirmed during the process that she
was aware that data roaming rates could be high.
[8].
The purpose of the First Respondent’s
calls was to activate international roaming services as she was to
travel overseas on
that very day. She had asked the first operator to
increase her monthly billing limit so that she could make a call if
necessary
while abroad. This couldn't be achieved with the first
operator because the call was accidentally dropped.
[9].
This could not have been achieved through
the second operator, as the First Respondent failed the security
verification process.
The third operator transferred her call to the
contracts department, which was her fourth and final call.
[10].
The fourth operator advised the First
Respondent that, before Appellant could activate the roaming
services, she was required to
read the terms and conditions that
would apply to her. She responded by insisting that there was no need
to read her the terms
and conditions, as she had already heard them
during the previous call, and that the operator could “
just
wrap them
.”
[11].
However, the operator read the terms and
conditions to her. She explained that if she failed to do so, she
would be reprimanded.
The First Respondent chose to increase her
monthly limit to R3 785.00.
[12].
The Second Respondent is enjoined by the
Act to interpret any standard form, contract, or other document
prepared or published by
or on behalf of a supplier to the benefit of
the consumer so that any ambiguity that allows for more than one
reasonable interpretation
of a part of such document is resolved in
favour of the consumer.
[13].
Section 4(5)(b) provides that in any
dealings with a consumer in the ordinary course of business, a person
must not engage in any
conduct that is unconscionable, misleading, or
deceptive, or reasonably likely to mislead or deceive a consumer.
[14].
Section 48(1)(a)(i), (ii), and (iii)
prohibit a supplier from offering to supply or enter into an
agreement to supply any goods
or services at a price that is unfair,
unreasonable, or unjust or on terms that are unfair, unreasonable, or
unjust. The supplier
must not further require a consumer to waive any
supplier liability.
[15].
Section 51(1)(b)(i), (ii), and (iii)
prohibit a transaction or agreement subject to any term or condition
if it directly or indirectly
purports to waive or deprive a consumer
of a right in terms of the Act or avoid a supplier’s obligation
or duty in terms
of the CPA. In short, the transaction may not be
subject to a term or condition that purports to set aside or override
the effect
of any provision of the Act.
[16].
Section 54(1)(b) relates to the right of
the consumer to the performance of the services in a manner and
quality that persons are
generally entitled to.
[17].
In this case, the First Respondent conceded
and submitted that the terms and conditions of the Appellant for the
services she required
were read to her, but she did not assent to
them.
[18].
This court finds the above statement that
she did not assent difficult to accept. The evidence that is common
cause between the
parties suggests otherwise.
[19].
The First Respondent confirmed to various
operators that she was aware of the terms and conditions. She was
aware of the tariffs
and had complained that they were expensive. The
conversation she had with Ms. Twala, one of the operators she spoke
with, clearly
indicates that she was forewarned and advised to use
alternatives to the roaming facility, but she elected to use
international
roaming.
[20].
The whole saga that subsequently followed
and led to the orders made by the Second Respondent is dependent on
the interpretation
of clause 2 of the Appellant’s terms and
conditions. Perhaps it is apposite to quote the same in full:
“
ACCOUNT
LIMITS AND THRESHOLDS
Please
note that thresholds and monthly usage limits apply to international
roaming. However, there may be delays when imposing
the limits due to
delays in billing records being received from foreign networks. Cell
C also cannot guarantee the accuracy of
the limits set or that such
limits will be set timeously, due to the delays from foreign
networks. There may be up to a three (3)
month delay in call, SMS,
and data charges reflecting on your statement due to the downloading
of call data records
(CDR’s)
from foreign networks."
[21].
The above formed part of the short code of
terms and conditions governing international roaming. Whilst clause 2
confirms that thresholds
and monthly usage limits apply to
international roaming, it clearly sets out the associated risks. The
First Respondent accepted
the same, fully aware of the risks, despite
being advised to use alternatives.
[22].
To further compound matters, she was not
prepared to have the operator read the terms and conditions to her,
alleging that the other
operators had already read them to her.
[23].
That is not the conduct of a person who did
not assent to the conditions. What she raised then was the issue of
the rates, which
led to an increase in her limit by a further
R2000.00.
[24].
It is apposite at this juncture to revisit
the purpose of the Act in question and the relevant sections alleged
to have been contravened
by the Appellant.
[25].
The purposes of the Consumer Protection Act
are to promote and advance the social and economic welfare of
consumers in South Africa
by— (a) establishing a legal
framework for the achievement and maintenance of a consumer market
that is fair, accessible,
efficient, sustainable, and responsible for
the benefit of consumers generally.
[26].
Further, to promote fair business
practices; protecting consumers from— (i) unconscionable,
unfair, unreasonable, unjust or
otherwise improper trade practices;
and (ii) deceptive, misleading, unfair or fraudulent conduct;
improving consumer awareness
and information and encouraging
responsible and informed consumer choice and behaviour; promoting
consumer confidence, empowerment,
and the development of a culture of
consumer responsibility, through individual and group education,
vigilance, advocacy and activism;
providing for a consistent,
accessible and efficient system of consensual resolution of disputes
arising from consumer transactions;
and providing for an accessible,
consistent, harmonised, effective and efficient system of redress for
consumers.
[27].
Section 4(5)(b) provides:
“
In
any dealings with a consumer in the ordinary course of business, a
person must not—
(b) engage in any conduct
that is unconscionable, misleading, or deceptive, or that is
reasonably likely to mislead or deceive.”
[28].
I agree with the submissions of the
Appellant in this regard that the section clearly is targeted at
conduct that is objectively
likely to deceive or mislead.
[29].
The repeated, explicit disclaimers
considered in the light of the insistence by Cell C’s agent or
operator on reading the
clauses thoroughly to the First Respondent
objectively signalled an intention to inform, not to conceal,
deceive, or mislead. This,
in my view, is inconsistent with an
intention to mislead, deceive, or conceal.
[30].
On this basis alone, the Second Respondent
erred or misdirected itself in the circumstances.
[31].
Further, the Second Respondent erred in its
finding that the First Respondent faced an unexpected expense for
which she would not
have budgeted. She was directed twice to consult
the Appellant’s website to consider different options and
rates. She confirmed
during the first telephone conversation that she
had already done so.
[32].
Clause 4.1, which was read to her, provides
as follows:
“
Please
refer to Cell C’s website to view the data charges. We advise
that you do not use data while you are roaming outside
the borders of
South Africa unless you are aware of the necessary data charges. Some
networks can charge extremely high rates per
megabyte.”
[33].
The First Respondent conceded that she
connected in Dubai, while airborne, and connected in France.
[34].
Section 48(1)(a)(i), (ii), and (iii)
prohibit a supplier from offering to supply or enter into an
agreement to supply any goods
or services at a price that is unfair,
unreasonable, or unjust or on terms that are unfair, unreasonable, or
unjust. The supplier
must not further require a consumer to waive any
supplier liability.
[35].
It is difficult in the circumstances of
this matter to phantom how it could be held that the First Respondent
was offered
services at a price that is unfair, unreasonable,
or unjust or on terms that can be considered to have been unfair,
unreasonable,
or unjust, when she was advised not to use data when
roaming outside South Africa.
[36].
I am also of the view that the Appellant
did not violate the provisions of Section 51(1)(b)(i), (ii), and
(iii). The Appellant complied
with its statutory duties and advised
the First Respondent of the risks associated with international
roaming and the usage of
data in those circumstances.
[37].
Section 54(1)(b) relates to the right of
the consumer to the performance of the services in a manner and
quality that persons are
generally entitled to.
[38].
In casu,
the
services demanded by the consumer depended much on foreign network
providers that the Appellant had little control over, and
the
consumer was forewarned in that regard.
[39].
The other complaint raised by the Appellant
is the penalty fine of R500 000.00. It appears from the record
that the penalty
was imposed because of the 25% surcharge imposed by
the Appellant on the bill of the First Respondent. The complaint is
that the
Appellant was not afforded an opportunity to address the
issue.
[40].
It is alleged that the Appellant was asked,
toward the end, whether it imposed any surcharge on the bill and, if
so, what percentage
it was. The Second Respondent viewed the
25% surcharge as exorbitant.
[41].
Counsel for the Appellant did not have an
opportunity to address this issue or to consult properly with the
Appellant, and was afforded
only 20 minutes.
[42].
New evidence in this regard has been
provided. The surcharge is mostly cost-based, as it covers the
Appellant’s essential
“bearer costs” of providing
international roaming to its customers and is marginally profitable.
The profit it made
amounted to 4.5%, which equated to approximately
R390.00.
[43].
I do not intend to address the issue of the
Appellant’s bargaining position. This seems to have been
considered without any
evidence led.
[44].
Considering all the above, I am of the view
that the appeal must succeed.
[45].
With respect to the cross-appeal regarding
the costs order, it must fail. Moreso, the issue of costs is
discretionary. The fact
that the Tribunal's order is equated with a
High Court order does not necessarily mean that any cost order made
by the Tribunal
must be at the High Court scale. Cost orders in the
High Court at a Magistrate’s Scale are not unusual.
[46].
Therefore, the following order is made:
1.
The Appeal is upheld;
2.
The Complaint is dismissed.
3.
The First Respondent’s cross-appeal
is dismissed; and
4.
No order as to costs is made.
MP Kumalo
Judge
of the High Court, Pretoria
Delivered:
This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
Appearances:
For
the appellant:
Adv
JJ Meiring & Adv D Sive
Instructed
by:
Stein
Scop Attorneys Inc
C/O
Magda Kets Inc
For
the first respondent:
Adv
KD Iles
Instructed
by:
Trudie
Broekman Attorneys
C/O
Hack Stupel & Ross