South Africa: National Consumer Tribunal

You are here:
SAFLII >>
Databases >>
South Africa: National Consumer Tribunal >>
2013 >>
[2013] ZANCT 33
| Noteup
| LawCite
Golden Bay Properties 47 CC v National Consumer Commission (NCT/3620/2011/101(1)(P) CPA) [2013] ZANCT 33 (13 September 2013)
Download original files |
IN THE NATIONAL CONSUMER TRIBUNAL
HELD AT CENTURION
Case number: NCT/3620/2011/101(1)(P) CPA
DATE:13/09/2013
In the matter between:
GOLDEN BAY PROPERTIES 47 CC …...............................................................APPLICANT
and
THE NATIONAL CONSUMER COMMISSION...................................................RESPONDENT
Coram:
Prof Bonke Dumisa – Presiding member
Adv F Manamela – Member
Mr F Sibanda – Member
Date of Hearing – 26 March 2013
JUDGMENT AND REASONS
THE PARTIES
1. The Applicant in this matter is Golden Bay Properties 47 CC, a close corporation duly incorporated, in terms of the Close Corporations Act, 69 of 1984, with Registration Number CK 2004/024007/23 (the “Applicant”).
2. The Applicant is in the property business. They operate from their offices in Roodepoort, in the Gauteng Province.
3. The Applicant’s Founding Affidavit was deposed to by Mr R.G.J. Andrews, the sole member of the Applicant.
4. The Respondent is the National Consumer Commission (hereinafter “the Respondent”), an organ of state within the public administration, established in terms of Section 85 of the Consumer Protection Act, No. 68 of 2008 (the “Act”).
COMPLAINANT
5. The Complainant who reported the matter to the Respondent is Ms Marleen Maunye (hereinafter referred to as “the Complainant”). The Complainant lodged a complaint against the Applicant with the Respondent on 13 April 2011.
JURISDICTION
6. The Applicant has applied to the National Consumer Tribunal (the “Tribunal”) to review a compliance notice issued by the Respondent to the Applicant in terms of section 100 of the Act in respect of alleged contraventions of schedule 2 Item 8(1) and sections 20(1) and (2); 54(1) and (2); 56(2) and (3) of the Act.
7. Section 101 of the Act empowers the Tribunal to confirm, modify or cancel all or part of a compliance notice.
8. Therefore the Tribunal has jurisdiction to hear this matter.
ISSUES TO BE DECIDED
9. The Application has been brought on a default basis. The Tribunal has to decide whether it can hear the matter on a default basis.
10. The Tribunal must also determine whether the Respondent had the authority to issue a compliance notice with regards to the alleged conduct that occurred prior to the general effective date of the Act and, if so, whether the Respondent was empowered to order the refund of all the monies already paid by the Complainant to the Applicant to date, plus interest.
BACKGROUND
11. According to the Compliance Notice, on the 14th of December 2009 the Complainant bought a repossessed house from the Applicant for the amount of R180 000-00; and was assured by the Applicant that she would be given occupation upon the registration of her mortgage bond.
12. It is common cause that the Complainant was aware, at the time of entering into the agreement of sale, that the property was occupied by unlawful occupiers who happened to be the previous owners (the erstwhile bondholders).
13. On the 2nd of February 2010 the property was transferred to the Complainant. She, however, could not take occupation because the property was still illegally occupied by the previous owners.
14. Subsequent efforts by the Sheriff to evict the unlawful occupiers were unsuccessful, as the unlawful occupiers quickly re-invaded the property immediately after the Sheriff had lawfully evicted them.
15. The Applicant laid a criminal charge against the unlawful occupiers and also re-instituted eviction proceedings against them. The Applicant indicated that it has, at all material times, taken all reasonable steps to provide the Complainant with vacant possession of the property.
16. The Complainant has been paying the monthly bond instalments, as per her mortgage bond agreement, from March 2010 despite not having possession of the property.
17. The Complainant lodged a complaint with the Respondent on the 13th of April 2011. The Respondent forwarded the complaint to the Applicant on the 4th of July 2011; and gave the Applicant 7 working days to respond to the complaint. The Applicant did respond on the 13th of July 2011.
18. The Complainant was not satisfied with the Applicant’s response and the matter was set down for pre-conciliation for the 8th of August 2011. The Respondent asserted, at the pre-conciliation, that the Applicant made an undertaking to buy the house back from the Complainant as well as refund the latter for instalments paid to date on the mortgage bond registered over the property.
19. On 31 August 2011, the Applicant made a formal written offer to purchase the property back from the Complainant. The Complainant accepted and signed the offer on the same date.
20. There were logistical problems with the finalization of the property buy-back process; and the Applicant attributed the problems to bank processes.
21. The Complainant reverted back to the Respondent for redress; and, consequently, a compliance notice dated 23 November 2011 was issued to the Applicant on an unknown date; the Applicant avers the compliance was only delivered, via courier, to the Applicant on 8 December 2011.
22. The Applicant brought its application for review of the compliance notice to the Tribunal on the 15th of December 2011. The application was therefore brought within the prescribed period of 15 business days from receipt of the notice that is allowed by Table 2 of the Regulations to the Act.
23. The Respondent was served with the application on the 21st of December 2011; and was expected to file its answer to the application within 15 (fifteen) business days from the date of receipt of the application. The Respondent however did not file an answer to the Applicant’s application.
24. The matter is heard by the Tribunal on a default basis. The Tribunal considered the application on the basis of the founding affidavit and the oral submissions made by the Applicant at the hearing.
GROUNDS FOR CHALLENGING THE COMPLIANCE NOTICE
25. The Applicant submits that the complaint lodged, is invalid, on grounds that the facts alleged in paragraph 1.3.3 of the compliance notice are baseless as the Applicant did not attend any conciliation hearing on the 6th of September 2011, as is claimed in paragraph 1.3.3 of the compliance notice.
26. The Applicant further submits that it did everything in its power to comply with the terms of the agreement of sale and that it endeavoured to rectify its inability to perform by participating in the pre-conciliation hearing where it proposed to purchase the property back from the Complainant and to reimburse the Complainant. A formal agreement of sale where the Applicant agreed to buy back the property from the Complainant was concluded and signed on the 31st of August 2011.
27. The new contract of sale between the Applicant and the Complainant, signed on the 31st of August 2011, rendered the earlier complaint made by the Complainant to the Respondent invalid; because the Applicant can only comply with paragraph 2.1 of the compliance notice upon a valid transfer of the property from the Complainant to the Applicant.
28. The Applicant submits further that the delays in transferring the property back from the Complainant are due to regulatory processes beyond the control of the Applicant; with the delays being caused by the municipality in issuing the necessary clearance certificates.
29. The Applicant further submits that the compliance notice is addressed to “Get-A-Home”, a company which is not connected with the property or the Applicant and that the Applicant is therefore not obliged to comply with the compliance notice.
ANALYSIS OF LEGAL PROVISIONS AND FACTS
30. The Respondent alleges, in the compliance notice, that the conduct of the Applicant amounts to a contravention of Schedule 2 Item 8(1); Sections 19(2)(a)(i) and Section 54(1) (a) of the Act .
31. Schedule 2 Item 8(1) of the Act states that:
Despite the repeal of the repealed laws, for a period of three years after the general effective date the Commission may exercise any power in terms of any such repealed law to investigate any breach of that law that occurred during the period of three years immediately before the general effective date.
32. Schedule 2 Item 8 of the Act empowers the Respondent to investigate and refer to the Tribunal conduct that took place before the general effective date of the Act, that is, 1 April 2011. Such conduct should have been prohibited under certain laws that have now been repealed by the Act.
33. In City of Johannesburg v National Consumer Commission1 the Tribunal held that where it was necessary to rely on the transitional provisions because the conduct arose before the Act came into operation, the Respondent is required, in the Compliance Notice, to identify a specific section of a specific repealed Act it was relying upon. Then in the section headed, nature and extent of the non-compliance, it should set out the details regarding how the Applicant had contravened the section.
34. In this particular matter the Respondent did not refer to any specific section of any specific repealed legislation listed under section 121 of the Act that the Applicant has allegedly contravened. Instead, all that the Respondent has done under item 1.4 of the compliance notice is to restate Schedule 2 Item 8 of the Act without in any way referring to a specific repealed act that is alleged to have been contravened.
35. Section 19 (2)(a)(i) of the Act on the other hand states that:
Unless otherwise expressly provided or anticipated in an agreement, it is an implied condition of every transaction for the supply of goods or services that—
(a) the supplier is responsible to deliver the goods or perform the services ---
(i) on the agreed date and at the agreed time, if any, or otherwise within a reasonable time after concluding the transaction or agreement;
36. The Respondent also relied on Section 54(1)(a) of the Act which reads almost identical to Section 19 cited above. Section 54(1)(a) reads:
“When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services”;
37. As alluded to above, the conduct complained of in this matter took place before the general effective date of the Act. Sections 19 and 54 of the Act do not apply retrospectively to contracts entered into before this date, except to the extent provided for in Schedule 2 Item 3 of the Act which provides that:
Except to the extent expressly set out in this item, this Act does not apply to-
the marketing of any goods or services before the general effective date;
any transaction concluded, or agreement entered into, before the general effective date; or
any goods supplied, or services provided, to a consumer before the general effective date.
(2) The sections of this Act listed in the first column of the following table apply, to the extent indicated in the second column, to a pre-existing agreement between a supplier and a consumer, if the pre-existing agreement –
(a) would have been subject to this Act if this Act had been in effect at the time the agreement was made; and
(b) Contemplates that the parties to it will be bound for a fixed term until a date that is on or after the second anniversary of the general effective date:
38. The table under Schedule 2 Item 3 of the Act lists various sections of the Act that would apply to pre-existing agreements. With respect to both sections 19 and 54 the table referred to in subsection (2) states that the extent of application to pre-existing agreements:
“apply only with respect to goods that are deliverable or delivered to the consumer in terms of the agreement, on or after the general effective date”
39. It is common cause that the property was transferred by the Applicant to the Complainant’s name on or about the 2nd of February 2010, which was before the general effective date; and therefore the provisions of both sections 19 and 54 of the Act would not apply retrospectively to the agreement of sale in question.
CONCLUSION
40. The Respondent did not identify a provision of any of the repealed acts that is alleged to have been contravened.
41. Sections 19(2)(a)(i) and 54(1)(a) of the Act do not apply to the agreement of sale between the Applicant and the Complainant, because the agreement of sale complained of was concluded before 1 April 2011, which was the general effective date of the Act.
42. Even if the matters complained of fell within the ambit of Sections 19 and 54, which they do not; it is doubtful if the Respondent’s compliance notice would have been sustainable, as the non-delivery of the purchased house for occupation by the Complainant was not within the control of the Applicant.
43. The Tribunal will not pronounce on the other contention by the Applicant that the compliance order is not valid on grounds that it was served on the wrong party “Get-A-Home”. This becomes a moot point on the basis of the other grounds of invalidity established above.
ORDER
44. Under the circumstances and for the reasons stated above the Tribunal orders as follows:
a. The compliance notice is hereby cancelled in its entirety.
b. There is no order as to costs.
DATED THIS 13th DAY OF SEPTEMBER 2013
[signed]
___________________________
Prof Bonke Dumisa
Presiding Member
Adv F Manamela (Member) and Mr F K Sibanda (Member) concurring.
1 City of Johannesburg v National Consumer Commission NCT/2667/2011/101(1)(P) and NCT/2081/2011/101(1)(P) (30 March 2012)