IN THE CONSUMER AFFAIRS COURT FOR THE NORTH WEST PROVINCE
HELD AT MMABATHO
                Case number: NW08/2017

In the matter between:-

PHINEAS KOTONE MMUSI						      PLAINTIFF

And

SCHEEPERS BOORWERKE (PTY) LTD 				   DEFENDANT
T/A EUNEVER TRADING 405	
		 
Coram: 		J. Nkomo (Chairperson), P.Hlahane and K.Kgomongwe

Heard on: 		08 May 2018

Delivered on: 	02 October 2018

Summary: Allegations of commission of unfair business practice. Consideration paid for services but services not rendered, alternatively consideration exceeds agreed pricing per consumer agreement.

Result: Defendant found to have committed unfair business practice, fine of R 5 000.00 imposed. Defendant ordered to refund amount of R 13 390.00 plus interest at rate of 10% from 22 November 2016. Defendant to pay own costs. Defendant to further pay costs for enforcement in competent court.

JUDGMENT

J. Nkomo (P.Hlahane and K.Kgomongwe concurring)

Introduction

1.	The genesis of this matter is the commission of a criminal offence. Up to five reckless and careless robbers seem to have been following the plaintiff and Mr. Morne Burgers (Mr. Burgers) from the bank up to the complainant’s house whereupon a firearm was pointed at him and Mr. Burgers. Money was demanded and Mr. Burgers complied and gave them the money. The plaintiff’s cellphone was also taken. The offence was reported to the Lomanyaneng Police Station. No arrests have been made. Their motor vehicle is described as a white Mercedes Benz. Were the perpetrators inside the bank with the plaintiff and pretending to be queuing for banking whilst watching as to which clients were making cash withdrawals? Did any person from inside the bank inform about it to the criminals who were perhaps standing outside the bank? All banks have cameras that record movement all the time. Did the investigation officer have a look at the footage? Are there no cameras around the bank building to see what happened on the outside when the plaintiff left the bank? 

2.	Why does it seem that the investigation officer was keen to conclude that the investigation has no prospects of success only on the basis that the culprits were wearing balaclavas? Why does it look like the plaintiff and the employees of the defendant were never interviewed?  Could the plaintiff’s cellphone not have been traced for use beyond the date of the robbery? Were there any attempts to uplift fingerprints from Mr. Burgers van? Whatever the answers are, the plaintiff had been trying to get water, a scarce commodity for a second time and at a huge cost. Mr. Burgers was also trying to make an honest living and was robbed of it. Anyhow, this is not a criminal case and neither is it an enquiry on the failure of the police to make a breakthrough in the case.

3.	The plaintiff is Mr. Phineas Kotone Mmusi, an adult male person of 1005 Lotlhakane village in Mmabatho. The defendant is Eunever Trading 405(Pty) Ltd which trades as Scheepers Boorwerke. Its offices are at Plot 11 Delta Water, Rustenburg. The defendant seems to have another office around Mafikeng. It had been represented by Mr. Burgers at all times relating to the conclusion of the contract between the parties and its execution.

Background facts

4.	The plaintiff is the owner of a certain immovable property at Lotlhakane Village in Mmabatho. It is a rural residential area. There being a need for water the plaintiff sought the services of the defendant on 21 November 2016 after a first failed drilling that took place on 08 November 2016. On the same day Mr. Burgers, employees and the drilling rig descended upon the plaintiff’s premises. A written contract was signed as between the parties. A deposit of R 16 000.00 was payable in terms of clause 1.4 of the agreement. The plaintiff proposed to pay the deposit by way of Electronic Funds Transfer whilst Mr. Burgers insisted on a cash payment. Payment in the form of a cheque was also rejected. This caused for the two to have to travel to Mafikeng Town for a Cash withdrawal.

5.	The plaintiff and Mr. Burgers got into Mr. Burgers bakkie and proceeded to the town of Mafikeng. The bank that the plaintiff was going to get the cash from was the Standard Bank. It is not clear from the evidence as to which branch of the Standard Bank was it that the two visited. This is not in dispute and neither is it material to any aspect in the matter. At the bank the plaintiff alighted whilst the defendant remained in his car. 

6.	Having made a withdrawal of R 20 000.00 the plaintiff got into Mr. Burgers car and off they drove. They were en route back to the plaintiff’s residence. Whilst on the road and near Danville Township, the plaintiff handed the amount of R 16 000.00 to Mr. Burgers who was driving. On standing still at the plaintiff’s residence and before the two could alight, a white “C” Class Merceds Benz motor vehicle stopped behind the bakkie. Three individuals wearing balaclavas approached the side of Mr. Burgers and shouted “Waar is die geld, Chelete e kae” .  A robbery had begun. One of the culprits had a firearm. They frisked Mr. Burgers. He took the money out and gave it to them. One of the went to the passenger side and was with the plaintiff as the others were frisking Mr. Burgers. The plaintiff’s cellphone was taken as he had it right in his hand at the time. The keys to Mr. burgers bakkie were also taken.

7.	After all the mayhem the plaintiff and the Mr. Burgers went to the Lomanyaneng Police Station in order to report a criminal case. The drilling stopped for a while after the robbery but continued as the plaintiff and Mr. Burgers went to the police station. The drilling stopped at 55 meters with no luck for water according to the plaintiff. He states that the 55 meters was drilled on 21 November 2016. The defendant on the other hand says the drilling ended at 30 meters on 21 November 2018 and then on 22 November 2016 they drilled for a further 25 meters to make it a total of 55 meters. 

8.	On 22 November 2016 the plaintiff visited the offices of the defendant in Mafikeng in order to negotiate for further drilling with the hope of finding water. At first they were arguing about had the plaintiff not paid in cash the previous day they would not have been robbed. The parties eventually agreed that the plaintiff was to pay a further R 14 500.00 for more drilling. This was paid into a bank account number that had been provided. The drilling would start as soon as the defendant’s rig finished where they were then engaged. There was no written contract signed like it had happened on the previous two occasions. 

The issues

9.	The central issue as can be seen from the joint minute by the parties dated 22 November 2017 and the heads of argument is simply about which party was robbed and how much was taken. The plaintiff says it is Mr. Burgers who was robbed of the amount of R 16 000.00. The defendant on the other hand whilst sort of conceding that the money was taken from Mr. Burgers, denounces responsibility as it will be seen later in this judgement. We are to also decide on whether the defendant’s conduct amounts to an unfair business practice or a prohibited conduct. There seems to be one more issue that has eluded both parties. This is the question of the status of the subsequent payment of the amount of R 14 500.00 was it to replace the money robbed the previous day or was it for procuring further services? Was it to drill from the 30 meter mark as the defendant states or was it to drill from 55 meters as the plaintiff states? Whichever way one looks at the facts, mathematics as opposed to law will play a big role in the matter as will be seen later in this judgement.

Discussion

10.	It is common cause between the parties that they had concluded a contract which is called locatio conductio operis. This is the contract of the hiring and letting of work. There are basically three elements to this contract. These are an agreement on the work to be performed, the remuneration payable and the time for performance. The parties concluded a written contract from which it is clear that the plaintiff was engaging the defendant for purposes of drilling a borehole at his yard. The price agreed upon appears in the contract as R 800.00 for the sighting of water, R 250.00 per meter for drilling and R 320.00 per meter for the borehole casing. The time for performance was set to be the 21st of November 2016.

11.	The contract provided for a deposit of R 16 000.00 which was a pre-requisite for starting to drill the borehole. It would appear that the parties amended this part of the contract or at least that the defendant waived this requirement. This is because of the fact that the drilling started prior to this requirement being met. The plaintiff and Mr. Burgers went to Mafikeng Town to get the money for the payment of the deposit whilst the drilling rig had started to drill.

12.	It has already been said that upon arrival back from Mafikeng Town a robbery took place at the plaintiff’s yard. We have been amongst others asked to determine as to which party was robbed. It is clear from the unchallenged evidence of the plaintiff that he handed the money over to Mr. Burgers whilst they were still travelling. It is further clear from the unchallenged evidence of the plaintiff that the robbers demanded money from Mr. Burgers and that Mr. Burgers handed the money to the robbers. A copy of the statement that Mr. Burgers gave to the police after the incident indicates that he said:-

“I gave them the money and one of them pulled out the key from the ignition”

13.	It is obvious that the finding that ought to be made under the circumstances is that both the plaintiff and Mr. Burgers were victims of a robbery. The plaintiff was robbed of his cellphone whilst Mr. Burgers was robbed of the cash that had been paid to him by the plaintiff as well as the keys of his motor vehicle.

14.	Although it is not put straight terms, it appears that the defendant argues that the court should not find that the money was robbed in the hands of Mr. Burgers for reasons that it was not paid at the bank, that it was handed whilst Mr. Burgers was driving and that Mr. Burgers had not counted the money. The unchallenged evidence of the plaintiff is that he had withdrawn R 20 000.00 from which he separated the amount of R 4 000.00 and the rest was handed to Mr. Burgers. Mr. Burgers in his statement to the police also confirms that he was robbed of the amount of R 16 000.00. The bank statement in respect of the plaintiff’s bank account also confirms a cash withdrawal of R 20 000.00 on 21 November 2016 at 10H47.

15.	Regrettably Mr. Burgers passed away on 26 October 2017 and as such the court could not have the benefit of his testimony in rebuttal of the plaintiff’s version in so far as it concerns the payment of the money as well as the robbery itself. Reliance had to be placed on his statement as it had been made to the police. The only deduction that can be made from the circumstances is that the plaintiff’s version of having paid the amount of R 16 000.00 must prevail.  Mr. Burgers seems to have accepted the payment as R 16 000.00 as can be seen from his statement to the police where he allusions to being paid cash of R 16 000.00. It must further be concluded that Mr. Burgers had accepted the payment without reservations and that the risk on it had been on his side when the robbery took place.

16.	Having stopped drilling for a while after the robbery, Mr. Burgers ordered his employees to drill further. They stopped at 30 meters without striking water as it was put to the plaintiff under cross examination. The plaintiff denied this fact. He stated that they had gone up to 55 meters on this day. As to which party is telling the truth in this regard should be easy to tell from a mathematical point of view. The application of mathematics to the figures indicates as follows if the defendant’s version is to be believed. The contract provides that drilling per meter costs R 250.00. The cost of drilling up to 30 meters therefore amounts to R 7 500.00. To this must be added the R 800.00 cost of sighting for water. Lastly it was put to the plaintiff that an 8 meter casing had been fitted. The contract states that it costs R 320.00 per meter. He did not dispute the fact that the casing was fitted. The figures work this way as per the defendant’s version:-

Total deposit paid R 16 000.00

Less: (a)	Sighting costs 					R 800.00
(b)	30 meter of drilling @ R 250.00 per meter 	R 7 500.00
(c)	 8 meter casing @ R 320.00 per meter 		R 2 560.00

Total costs on 21 November 2016 				R 10 860.00

17.	The above scenario dictates that at the close of business on 21 November 2016 the plaintiff had a credit of R 5 140.00 which the defendant seems to be quiet about and not accounting for.

Payment of R 14 500 00 on 22 November 2016.

18.	Prior to engaging this aspect, one needs to establish as to what was the reason for the plaintiff visiting the defendant’s offices on 22 November 2016. The answer to this question will be of great assistance in unravelling the issues in this matter. It is clear that no water had been struck on the previous day. The plaintiff states in his evidence that he visited the defendant’s offices on this day in order to procure further services of drilling with the hope of finding water. Naturally people who underwent a bad experience as the plaintiff and Mr. Burgers had, would reflect on it next when they meet. It appears that this reflection resulted in the plaintiff being accused of having contributed to the robbery by paying in cash and was being asked to make a contribution to the loss by paying a further R 8 000.00. The plaintiff states that he 
rejected this proposal. His evidence in this regard remains unchallenged.

19.	Having paid the amount of R 14 500.00 the plaintiff was promised that the drilling rig would be directed to his place of residence as soon as it finished where it was drilling. Having discussed the requirements of the establishment of the contract of locatio conductio operis earlier in this judgement, it is easy to see that when payment was made of the amount of R 14 500.00 on 22 November 2016, the parties were engaging in a completely new agreement between themselves although it would resemble the previous two contracts. I am thus of the view that payment of the amount of R 14 500.00 established a new contract and the court should find as such. 

20.	The plaintiff seems to have met his obligation of payment for the new contract. Did the defendant perform its obligations? The answer to this question should determine the fate of the matter. The plaintiff states that the defendant never returned for further drilling after the 22nd of November 2016. The defendant states that they did return on 22 November to drill for a further 25 meters. 	As to which of the two parties is to be believed in this regard is not so important. It is common cause between the parties that all in all the plaintiff received services of drilling up to 55 meters. Let us now apply mathematics to the figures.

Amount paid on 22 November 2016 	R 14 500.00

Less : (a)	drilling of 25 meters @  R 250.00 per meter R 6 250.00

Total R 6 250.00

21.	The above shows that the plaintiff had a credit of R 8 250.00 this time. Similar to the credit that remained on 21 November 2016, the defendant is simply silent on it and is not accounting for it. The plaintiff has all in all a credit of R 13 390.00. The defendant is not willing to render services for it, neither is the defendant willing to refund the amount. Consumer justice dictates that consumers must receive quality goods and services within a reasonable time after paying for them. It further dictates that consumers must not be exploited by the suppliers of goods and services. The Consumer Protection Act acknowledges that consumers have in the past been subjected to abuse and exploitation. The CPA is now in place to guard against these practices and to give access to justice in this regard.

Is the defendant’s act an unfair business practice or prohibited conduct?

22.	The CPA defines prohibited conduct as follows:- “means an act or omission in contravention of this Act.”. The CPA further provides as follows:-

“ A supplier or an agent of the supplier must not use physical force against a consumer, coercion, undue influence, pressure, duress or harassment, unfair tactics or any similar conduct, in connection with any-

(a)	not relevant;
(b) 	supply of goods or services to a consumer;
© 	negotiation, conclusion, execution or enforcement of an agreement to supply any goods or services to a consumer;”

23.	The North West Provincial Government (Harmful Business Practices Amendment) Act 4/1996) amendment defines unfair business practice as: …” any business practice which directly or indirectly has or is likely to have the effect of-
(a) 	harming the relations between business and consumers;
(b) 	unreasonably prejudicing a consumer, or 
(c) 	deceiving a consumer.”

24.	It seems to me that when the defendant negotiated and concluded the second consumer agreement, it had no intention of rendering the services that the plaintiff was asking for. The intention was clearly to deceive the plaintiff and make him to pay monies that the defendant would treat as compensation or a recovery of the monies that had been lost the previous day. The conduct was therefore planned and calculated to unreasonably prejudice the plaintiff. This brings one to the conclusion that the plaintiff is to be believed when he says that the defendant never returned on 22 November 2016 in order to render further services. The defendant is to be found to have used unfair tactics to negotiate the consumer agreement. This in contravention of the already mentioned section of the CPA as well as the Unfair Business Practices Act.

25.	It seems that the legislature took the offence of unfair business practice so serious to the extent that it provided for the imposition of fines for such conduct. It provided in the North West Provincial Government Gazette Number 7743 of  14 March 2017 that:-

“(1)	A prohibited conduct or unfair practice must be published in the Provincial Gazette

(2) 	The court may impose a fine ranging from R 500.00 to R 20 000,.00 for the first transgressor.” 

The relief asked for in the papers and the relief asked for after the hearing

26.	In the summons that was served on 27 September 2017, the plaintiff prays for:-

“ Proper service to be rendered  as agreed within a reasonable period” 

27.	It seems that the plaintiff wanted an order in terms of which the defendant would be compelled to provide the services paid for. In the ordinary course of litigation this is called an order for specific performance. In the heads of argument dated 24 May 2018 the plaintiff prays for payment of the amount of R 14 500.00 with interest calculated from 22 November 2016. The defendant raises an issue surrounding the differing prayers by the plaintiff. In this regard we have been correctly referred to case law and the author Erasmus. These need not be repeated herein as it is trite that a plaintiff is not allowed to ask for one relief in the papers and then at a later stage ask for a different relief. I am of the view that although the defendant’s, contention in this regard is correct, it cannot be sustained in the context of these proceedings. The idea behind the CPA was to bring speedy and efficient redress to disputes between consumers and suppliers of goods. It was not intended that the consumer court be a body that is similar to mainstream courts in terms of the application of rules and procedures. The proceedings are to be conducted in an informal manner.  

28.	The consumer affairs court is not a court of law but a Tribunal. It even comprises of members who are not trained in law. A person not trained in law is also allowed to represent another in the proceedings before it. All these reinforce the already formed notion that the legislature never intended to have the consumer court apply strict rules of procedure and form akin to the higher courts. Section 1 of the CPA defines a consumer court as a “a body of that name, or a consumer tribunal, that has been established in terms of the applicable provincial consumer legislation”. The CPA continues to say the following about a court: “does not include a consumer court.” I am of the view that having shown that a consumer court is not a court but a Tribunal, it follows that its concern should be the application of the principles of fairness more than to apply rigid principles of law as applied in the mainstream courts. 

Conclusion

29.	I am satisfied that the defendant received a consideration of R 14 500.00 from the plaintiff and has not rendered the services that were sought. I am also satisfied that plaintiff remains with accredit of R 5 140.00 in respect of the services rendered in relation to the 55 meter drilling and the 8 meters of borehole casing. There is no reason why the defendant should not be found to have acted in contravention of Section 40 of the CPA. I am lastly satisfied that the plaintiff is entitled to an order in terms of which he is to receive the total of R 13 390.00 together with interest thereon at the rate of per annum from 22 November 2016.

Order

30.	In the result the following order is made:-

1.	The defendant is found to have contravened section 40 of the CPA read with the North West Provincial Government Gazette Number 7743 of 14 March 2017 by receiving consideration from a consumer and not rendering the services sought. In this regard the defendant is ordered to pay a fine of R 5 000.00.

2.	The defendant is ordered to immediately pay the total of R 13 390.00 to the plaintiff.

3.	The defendant is ordered to pay interest on the amount of R 13 390.00 at the rate of 10% per annum from 22 November 2016 to the date of ultimate payment.

4.	The defendant shall be liable for the costs of enforcing this order in the competent court. Such costs shall be on the party and party scale “A” as applicable in the competent court.

5.	The defendant shall pay its own legal costs.

Dated at Mmabatho on this 2nd day of October 2018.

John Nkomo
Chairperson