South Africa: National Consumer Tribunal

You are here:
SAFLII >>
Databases >>
South Africa: National Consumer Tribunal >>
2012 >>
[2012] ZANCT 19
| Noteup
| LawCite
National Consumer Commission v Eskom Holdings Soc (Pty) Ltd (NCT/3916/2012/114(1 )(P)) [2012] ZANCT 19 (13 June 2012)
Download original files |
IN THE NATIONAL CONSUMER TRIBUNAL HELD AT CENTURION
CASE NUMBER: NCT/3916/2012/114(1 )(P)
DATE:13/06/2012
IN THE MATTER BETWEEN:
THE NATIONAL CONSUMER COMMISSION.....................................................APPLICANT
AND
ESKOM HOLDINGS SOC (PTY) LTD....................................................................RESPONDENT
JUDGMENT AND REASONS
Introduction
1. The Applicant is the National Consumer Commission (hereinafter referred to as the NCC or the Respondent) established in terms of section 85 of the Consumer Protection Act 68 of 2008, situated at No 8 Bauhinia Road, Corner Witch-Hazel, Office No 10, Berkley Office Park, Techno Park, Centurion.
2. The Respondent is ESKOM HOLDINGS SOC (PTY) LTD (hereinafter referred to as ESKOM or the Applicant), a power utility company responsible for the provision of the electricity supply to the complainant in this matter, carrying on business at Maxwell Drive, Megawatt Park, Sunninghtll, Sandton, Johannesburg.
3. This is an application in terms of section 114 of the Consumer Protection Act, Act 68 of 2008, (hereinafter referred to as "the Act"), for interim relief as read together with Rule 37(1 )(b) wherein the respondent seeks to have the complainant's electricity supply to be re-connected to the dwelling known as No 20 Welgewonden, Hammanskraal (the dwelling), pending the hearing of a review of a compliance notice that relates to the resolution of the electricity billing in the matter NCT/3910/2012/101(1 )(P) filed with the tribunal.
Background
4.
The applicant alleges that the complainant, Mr Prinsloo, lodged a
complaint with
the applicant on 20 September 2011 that -
4.1 the respondent was overcharging and billing the complainant based on estimates of electricity consumed, at the dwelling, since 2006 and that despite being requested to correct the billing errors the respondent failed to correct the billing errors and instead, disconnected the electricity supply to the complainants dwelling without an order of court;
4.2 the respondent acted in an unconscionable manner in terms of section 4(1 )(d) of the CPA in that it used coercion, undue influence, pressure, duress or harassment in demanding payment for services from the complainant;
4.3the respondent is penalising the complainant for exercising the complainant's rights In terms of section 68(1 )(d) by disconnecting the complainant's electricity supply services and further charging exorbitant rates for the electricity supply services to the complainants dwelling;
4.4the respondent failed to comply with the conciliatory outcome recommendations made by the conciliator to amongst other things, reconnect the electricity supply to the complainant's dwelling;
4.5the complainant is not being assisted by the respondent in that the complainant is not receiving any relief from the respondent who is not contactable;
4.6the complainant utilizes borehole water for consumption. When the complainant does not have access to an electricity supply the complainant has to rely on a generator, which is an additional cost to the complainant, causing the complainant to suffer financial harm;
4.7the wife of the complainant suffers from a terminal medical condition and relies on expensive medication that has to be refrigerated. Without an electricity supply to the dwelling, the complainant's wife is exposed to a life risk and the complainant to additional financial harm because new medication has to be purchased in the absence of refrigeration.
4.8 The complainant is continuing to suffer financial risk because the complainant has to purchase perishable food on a daily basis leading to extremely high household upkeep costs.
5 The respondent opposed the application citing numerous procedural grounds alleging in particular that:
5.1 the NCC does not have locus standi to lodge the application in terms of section 114 of the Act and or to issue a compliance notice and or to institute any proceedings in respect of any section in terms of the CPA;
5.2 the tribunal cannot grant the relief being sought;
5.3interim relief is not a suitable relief in the circumstances;
5.4the affidavit filed in support of the application does not constitute an affidavit filed under oath;
5.5section 114 of the CPA does not contemplate urgent applications and the
applicant has not made out a case of urgency; 5.6 the founding affidavit is defective;
5.7the National Energy Regulator of South Africa (Nersa) should have been joined to the proceedings.
6. The Tribunal, after hearing the parties on the points in limine raised by the respondent itself, mero motu, raised the legal point of the applicant's locus standi to bring the application for interim relief and requested that the parties address the tribunal on this point.
7. The applicant addressed the tribunal on the applicant's locus standi as follows -
7.1 The submission of the applicant was to ask the question as to what is the difference between a person and a complainant.
7.2 The applicant submitted to the tribunal that a complainant is the person who has filed a complaint with the NCC.
7.3Therefore, the NCC has locus standi to bring this matter as a complainant on behalf of the person who filed a complaint with the NCC.
7.4Therefore it follows that the NCC in the present context is the complainant.
7.5The person who filed the complaint thus can still be a complainant and be a witness to testify to the factual issues.
7.6 Were it the intention of section 114 of the CPA that a complainant files a complaint with the tribunal in an instance where the complainant is already before the tribunal then it would lead to a duplication of processes and that could not have been the intention of the legislature.
7.7 It is clear that the order being sought is for the electricity supply of Mr Prinsloo to be re-instated and to grant an order on the current papers will not create any confusion.
8 The Respondent addressed the tribunal on the applicant's locus standi to bring the application as follows:
8.1 The respondent submits to the tribunal that the complainant who should be before the tribunal is the person who actually filed the complaint with the National Consumer Commissioner (the Commissioner);
8.2 This Is because the irreparable harm that may result could not possibly attach to the Commissioner and thus to the applicant;
8.3 Therefore it follows that the irreparable harm is subject to direct evidence being given by the person who would suffer the irreparable harm.
8.4 In the event that the tribunal grants the application for interim relief then in this instance the tribunal would be giving relief to the Commissioner, the applicant before the tribunal and then indirectly, on the applicant's version, move the relief to the complainant which cannot be the case.
8.5 It could not have been the intention of the legislature to turn the Commissioner into a pro forma applicant.
Consideration of the argument
9 Section 114 of the CPA applies to Interim relief and states that:-
"(1) a person who has applied for relief to a court, or the complainant in a complaint that has been referred to the Tribunal, may apply to a court subject to its rules, or to the Tribunal, as the case may be, for an interim order in respect of that application or the complaint, and the court or Tribunal may grant the order if-
(a) There is evidence that the allegations may be true;
(b) An interim order is reasonably necessary toll) Prevent serious irreparable damage to that person; or (ii) To prevent the purposes of this Act being frustrated;
(c) The respondent has been given a reasonable opportunity to be heard, having regard to the urgency of the proceedings; and
(d) The balance of convenience favours the granting of the order.
9. It is clear from the above provisions that the applicant must be a complainant as defined in the CPA and that the complaint must have been referred to either a court or the tribunal.
10. A complainant is defined In terms of section 1 of the CPA to mean"
"a person who has filed a complaint with the Commission in terms of section 71; or
(a) The Commission in respect of a complaint that it has initiated, either directly or at the-
(I) Direction of the Minister in terms of section 86(b) or
(ii) Request of a provincial consumer protection authority or other regulatory authority, as the case may be."
11. It follows that a complainant In terms of the above provision can be a person who has filed a complaint. Indeed the tribunal is satisfied that a complaint has been filed with the NCC, by the complainant, Mr Prinsloo.
12. It follows further that the NCC can be a complainant in respect of a matter that it has initiated either directly or at the behest of the Minister or the Provincial consumer protection authority.
13. In the case in casu the complaint was lodged by the consumer, Mr Prinsloo, with the NCC. In the papers filed before the tribunal the complainant did not provide his version of events under oath and the applicant seeks to convey the version of the complainant in the founding affidavit and annexure.
14. There is furthermore no evidence before the tribunal that the complaint has been referred either to a court or to the tribunal.
15. Indeed, the matter before the tribunal is the application for a review of the compliance notice (NCT/3910/2012/101(1 )(P) which has yet to be set down for hearing.
16. There is therefore a matter that has been lodged before the tribunal, albeit not a referral of a complaint.
17. In the case of Martinus Malan vs Amalgamated Banks of SA (Absa) the
applicant sought urgent interim relief In terms of section 149(1) of the National Credit Act 34 of 2005, to set aside an order granted by the Vereeniging Magistrate's Court on the basis that Absa contravened section 129 and 130 of the NCA, that the magistrate had failed to apply her mind properly to the matter, and that Absa must not seek relief pending the completion of debt review process.
18. The tribunal held that in terms of section 149(1)-
(i) the tribunal Is to consider the facts before it and to assess on a balance of probabilities, whether the allegations made by the applicant could be true;
(ii) section 149(2) contemplates that there will eventually be a pending matter before the tribunal on the main dispute;
(iii) the tribunal cannot grant interim relief in respect of a matter that will eventually be dealt with by another forum other than the tribunal itself; and
(iv) an application for interim relief is available to a complainant who has filed a complaint In terms of section 136(1) to the National Credit Regulator (NCR) in the prescribed manner or who has referred a matter to the tribunal in terms of section 14, in the event of a non referral by the NCR.
(v) in short therefore, there must be a complainant as defined in terms of the CPA and there must be a matter pending before the tribunal for the application for interim relief to be considered.
19. We have considered the applicant's contentions that it represents the complainant and as such the complainant by virtue of this representation is Indeed before the tribunal. The latter is disputed by the respondent.
20. In assessing this application we considered the provisions of section 114 of the Act and the definition of a complainant as defined in section 1 of the Act.
21. We therefore conclude that the applicant does not have locus standi to bring the application for interim relief.
22. We further conclude that if the applicant does not have locus standi it is
unnecessary for the tribunal to rule on the balance of the points in limine as raised by the respondent.
23. Accordingly the tribunal makes the following order
(i) the applicant's application for interim relief is dismissed and
(ii)
no order as to costs is made.
Dated at Centurion this 13th day of June 2012
Ms P Beck - Presiding Member
Adv F Manamela - Member
Mr F Sibanda - Member