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Mathongwane v Woodgreen Ice Cream Machines cc t/a Frostee Boys (NCT/8441/2013/75(1)(b)CPA) [2013] ZANCT 53 (14 November 2013)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION


Case number: NCT/8441/2013/75(1)(b)CPA


In the matter between:


KEINOTSWE JONAS MATHONGWANE.....................................................................APPLICANT


and


WOODGREEN ICE CREAM MACHINES CC t/a FROSTEE BOYS....................RESPONDENT



Coram:

Mr F Sibanda...............-..............Presiding member



Date of Hearing.........................14 November 2013


JUDGMENT AND REASONS


THE PARTIES


1. The Applicant in this matter is Keinotswe Jonas Mathongwane, a major male residing in Soshanguve, Gauteng (“the Applicant”).

 

2. The Respondent is Woodgreen Ice Cream Machines CC t/a Frostee Boyz, a close corporation duly incorporated with registration number 2009/204004/23, with its main place of business situated in Pretoria West. The close corporation is herein represented by Dennis Buhac, a major male businessman and member of the close corporation, (“the Respondent”).

 

JURISDICTION

 

3. The Applicant applied to the National Consumer Tribunal (“the Tribunal”) for leave to refer the complaint directly to the Tribunal, in accordance with section  75(1)(b)  of the Consumer Protection Act, No 68 of 2008 (“the Act”).

 

4. Section 75(1)(b) of the Act allows a complainant, pursuant to the issuance of a notice of non-referral by the National Consumer Commission (“the NCC”) to refer a matter directly to the Tribunal, with the leave of the Tribunal.  

 

5. Such a referral must be in the prescribed form. On 12 June 2013 the Tribunal issued a notice of complete filing of the application.

 

6. Therefore the Tribunal has jurisdiction to hear this matter.

 

BACKGROUND

 

7. On 23 February 2010 the Applicant purchased a new ‘soft-serve’ ice-cream vending machine from the Respondent for a cash price of R20 300.00.

 

8. In April 2010 the Applicant took in the machine to the Respondent’s workshop for repairs. The results of the Respondent’s inspection found that the rotating beater/blender which churns the liquid into ice cream was damaged. The Respondent replaced the damaged part free of charge, despite claiming that the damage was caused by the part not being properly fitted onto the beater, and not due to a manufacturing fault.

 

9. In October 2010 the machine was taken in again where-upon it was diagnosed as having a gas leak although the cause of the leak could not be established. The machine was re-gassed and delivered to the Applicant free of charge.  

 

10. Sometime in December 2010 the machine was taken in once again because it was over-freezing. The Respondent informed the Applicant that the machine had a thermostat problem.

 

11. On 23 December 2010 the machine was taken in because the ice cream could not gel at all. On this occasion the Respondent claims that a full service was done on the machine and the Applicant was informed of all the repairs that needed to be done. According to the Respondent, the Applicant refused to pay for the repairs. According to the Applicant the Respondent refused to repair the machine claiming that the damage was due to the Applicant’s negligence. The Applicant left the machine at the Respondent’s premises, refusing to collect. .    

 

12. It would appear from correspondence by the NCC addressed to the Applicant, dated 27 November 2012 and entitled ‘Lack of Jurisdiction Notification’ that at some point the Applicant lodged a complaint with the NCC.

 

13. In this correspondence the NCC advises the Applicant that having assessed the complaint, it has determined that the transaction between the Applicant and the Respondent was concluded or entered into before the 1st of April 2011.

 

14. On the basis of limitations to the applicability of the Act to transactions that took place before the general effective date, the NCC concluded that it has no jurisdiction to deal with the Applicant’s complaint and accordingly closed the case file.

 

15. It is on the basis of the ‘Lack of Jurisdiction Letter’ issued by the NCC that the Applicant seeks leave to approach the Tribunal directly.

 

ISSUES TO BE DECIDED

 

16. The Tribunal has to decide whether to grant the Applicant leave to refer the matter directly to the Tribunal.

 

ANALYSIS OF LEGAL PROVISIONS AND FACTS

 

17. Before the Tribunal decides on the question of whether to grant the Applicant leave to refer the matter directly to the Tribunal, it needs to decide whether the notice issued by the NCC is the notice of non-referral contemplated in section 73 of the Act.

 

18. In terms of section 73 of the CPA one of the options available to the NCC upon completion of an investigation into a complaint is to issue a notice of non-referral.

 

Section 73

Outcome of investigation

(1)    After concluding an investigation into a complaint, the Commission may—                                          

(a)   issue a notice of non-referral to the complainant in the prescribed form;

(b)   …;

 

19. According to section 73 of the Act, the notice of non-referral must be in the prescribed form. Regulation 36 of the Consumer Protection Act Regulations (the Regulations) states as follows:

 

Regulation 36

Investigation by Commission

36. For purposes of section 72 (1)(a) of the Act, the Commission may issue a notice of non-referral in the form contained in Annexure ‘F’ to this Schedule.

 

20. Annexure ‘F’ to the Schedule contains a form entitled ‘Notice of non-referral’, with certain information requirements. The letter entitled ‘Lack of Jurisdiction Notification’ addressed to the Applicant by the NCC is not in the prescribed form. However, the substance of the letter contains, to a large degree, information required in the ‘Notice of non-referral’ form.

 

21. In Absa Technology Finance Solutions (Pty) Ltd v Michael’s Bid a House CC and another[1], the Judge of Appeal, CH Lewis quotes from the judgement of the lower court in the same matter in which the court in deciding the nature of the contract in dispute, had regard to the decision in Absa Technology Finance Solutions v Pabi’s Guest House CC[2]  and had this to say –

 

“…the court must have regard to the substance of the contract, not merely its form (or outward appearance).’’

 

22. According to CH Lewis this proposition is well entrenched in the law.    

 

23. Therefore the Tribunal will apply the principle of ‘substance-over-form’ and accept the NCC notification to the Applicant as constituting a notice of non-referral.

 

24. Having dealt with the issue of the notice of non-referral the Tribunal must now decide whether to grant the Applicant leave to apply directly to the Tribunal.

 

25. Section 75 of the Act deals with the referral of matters to the Tribunal.

 

Section 75

Referral to Tribunal

(1)  If the Commission issues a notice of non-referral in response to a complaint, other than on the grounds contemplated in section116[3], the complainant concerned may refer the matter directly to—

(a) the consumer court. …;or


(b)  the Tribunal, with leave of the Tribunal.                                                                        

(2)  …


(3)  A referral to the Tribunal, whether by the Commission or by a complainant in terms of subsection (1), must be in the prescribed form.


(4)  The Tribunal—

(a) must conduct a hearing into any matter referred to it under this Chapter, in accordance with the requirements of this Act, and the applicable provisions of the National Credit Act pertaining to the proceedings of the Tribunal; and


(b) may make any applicable order contemplated in this Act or in section 150 or 151 of the National Credit Act, read with the changes required by the context. (5)…”

 

26. In dealing with the question of whether to grant the Applicant leave to refer a matter directly to the Tribunal, the Tribunal had regard to the decision of Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[4] in the Coertze and Burger v Young[5] matter where it was held that –

 

11.4      When determining whether the Applicant should be granted leave to refer the matter to the Tribunal, the Tribunal considered the requirements for the granting of “leave”. A similar application can be found in the High Court practice, where an applicant applies for leave to appeal a judgment. It was held in Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[6] that “in applications for leave to appeal properly brought before the appropriate court in terms of the old sec 20, read with sec 21 as it then was, the only relevant criteria were whether the applicant had reasonable prospects of success on appeal and whether or not the case was of substantial importance to the applicant or to both him and the respondent”[7] This was so irrespective of whether the appeal lay to the full court or to the Appellate Division.

 

11.5     The Tribunal will therefore, when considering whether to grant the Applicant leave to refer or not, use the same test as applied in the High Court for applications for “leave” and will therefore consider:

 

11.5.1 The Applicant’s reasonable prospects of success with the referral;

11.5.2 Whether the matter is of substantial importance to the Applicant or Respondents.”

 

27. On the basis of the aforegoing, the Tribunal is of the view that the decision to grant the Applicant leave to refer the matter directly to the Tribunal must be made on the basis of:

 

(a)     Reasonable prospects of success; and

(b)     Substantial importance of the matter

 

28. On the question of reasonable prospects of success, the Tribunal has to determine whether it has jurisdiction to hear the matter since the conduct complained of occurred prior to the coming into force of the Act.

 

29. The Tribunal has previously dealt with the question of the retrospective application of the Act. For instance, in CMH Alfa West Rand v the National Consumer Commission[8], it was argued that the Act has limited application to transactions that were concluded before 1 April 2011. A similar conclusion was arrived at in City of Johannesburg v National Consumer Commission[9], Planet Fitness Holdings (Pty) Ltd v the National Consumer Commission[10], Kia Motors South Africa (Pty) Ltd v the National Consumer Commission[11] and various other cases.

 

30. Schedule 2 of the Act provides that:

 

(1) except to the extent expressly set out in this item, the Act does not apply –

 

(a)     To the marketing of any goods or services before the general effective date;

 

(b)     To any transaction concluded, or agreement entered into, before the general effective date; or

 

(c)     To any goods or services to a consumer before the general effective date”

 

31. The transaction that is the subject of the dispute was entered into on 23 February 2010. The repairs to the machine were effected between April 2010 and December 2010. The Act came into force on 1 April 2011.

 

32. From the papers filed of record and from the Applicant’s oral evidence given at the hearing, it is doubtful whether the Applicant can provide a basis for the applicability of the Act to the transaction that is the subject of the dispute.

 

33. The Applicant seeks an order from the Tribunal to be refunded the full purchase price of the machine. This, after a period of close to a year whilst making use of the machine, notwithstanding the intermittent breakdowns and repairs.

 

34. On whether the matter is substantially important to the Applicant, there is no doubt about that. However, the Applicant’s prospects of success in this matter are almost non-existent.

 

CONCLUSION

 

35. Schedule 2 of the Act provides that the Act does not apply to transactions or repairs that took place before the general effective date.

 

36. The Applicant has not made out a compelling case for the applicability of the Act to a transaction and/or subsequent repairs that took place before the Act came into force.

 

ORDER

 

37. Under the circumstances and for the reasons stated above, the Tribunal orders as follows:

 

37.1    The application for leave to refer the matter directly to the Tribunal is dismissed.

 

 

 

DATED THIS 17th DAY OF JANUARY 2014

 

[signed]

___________________________

FK Sibanda

Presiding Member



[1] Absa Technology Finance Solutions (Pty) Ltd v Michael’s Bid a House CC and Michael Charles Rose 212/2012 ZASCA 10.

[2] Absa Technology Finance Solutions v Pabi’s Guest House CC 2011 (6) SA 606 (FB)

[3] Section 116 of the Act stipulates that“(1) A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after—

(a)   the act or omission that is the cause of the complaint; or

(b)   in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.”

[4]     1986 (2) SA 555 (A) at par 15.

[5]     NCT/7142/2012/73(3)&75(1)(b).

[6]     1986 (2) SA 555 (A)

[7]     Odendaal v Loggerenberg en Andere NNO (2) 1961 (1) SA 724 (0) at p 727 C; Attorney-General, Transvaal v Nokwe and Others 1962 (3) SA 803 (T), at p 807.

[8] NCT/3710/2012/101(1) (P) CPA) [2012] ZANCT 24 (14 December 2012).

[9]  City of Johannesburg v National Consumer Commission NCT/2667/2011/101(1)(P) and NCT/2081/2011/101(1)(P)

[10]  Planet Fitness Holdings (Pty) Ltd v the National Consumer Commission NCT/4719/2012/101(1)(P) CPA

[11] Kia Motors South Africa (Pty) Ltd v the National Consumer Commission NCT/4719/2012/101(1)(P) CPA