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[2016] ZANCT 18
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Mbekeni v Freeway Toyota (NCT/36177/2015/75(1)(b) [2016] ZANCT 18 (1 April 2016)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case number: NCT/36177/2015/75(1)(b)
DATE: 18 MARCH 2016
In the matter between:
BOBAWO MXOLISI MBEKENI.....................................................................................APPLICANT
And
FREEWAY TOYOTA.....................................................................................................RESPONDENT
Coram:
Ms P Beck-Paxton – Presiding member
Adv FK Manamela – Member
Prof B Dumisa – Member
Date of Hearing – 18 March 2016
JUDGMENT AND REASONS
[Application for leave to refer matter directly to the Tribunal in terms of section 75;
Application to be in compliance with Tribunal Rules; Requirement to serve all the parties;
Respondent to file answering papers within specified timeframes or file condonation application;
Respondent failed to file opposing papers;
Application by Respondent to postpone hearing to give time to file answering papers; Wrong approach followed by Respondent in breach of Tribunal Rules; Application for postponement dismissed;
Tribunal competent to hear matter; Matter considered substantively important to both parties;
Held,
Application for leave to refer complaint directly to the Tribunal, granted]
APPLICANT
1. The Applicant in this matter is Bobawo Mxolisi Mbekeni, a major male person residing in Centurion, Gauteng (hereinafter referred to as “the Applicant”).
2. The Applicant represented himself at the hearing
RESPONDENT
3. The Respondent is Freeway Toyota a motor vehicle dealership incorporated as a company and registered in terms of the company laws of the Republic of South Africa, having its principal place of business in Johannesburg (hereinafter referred to as “the Respondent”).
4. The Respondent was represented by counsel, Ms Meriam Ayob, instructed by Dasoo Attorneys
APPLICATION TYPE
5. This is an application in terms of Section 75(1)(b) of the CPA, for leave to directly refer the complaint to the Tribunal. The Applicant completed and filed a Form TI.73 (3) & 75 (1) (b) & (2) CPA and deposed to an affidavit in support of its application.
BACKGROUND OF THE MATTER BASED ON APPLICANT’S AFFIDAVIT
6. In March 2012 the Applicant purchased from the Respondent, a motor vehicle, a 2008 Mercedez Benz C200K Avante-Garde with an AMG kit, for the amount of R307,490.00 (three hundred and seven thousand, four hundred and ninety rand) after paying a deposit of R20 000.00 (twenty thousand rand) (“the vehicle”). The vehicle’s odometer had registered about 80 000 kilometres and was still covered under a motor plan and warranty of up to 120 000km which would expire in February 2014. The vehicle, according to the Applicant did not have a service/manual book and a spare key. The Applicant states that he had to buy the spare key in the amount of R1616.30 because the Respondent’s Used Car manager, Imtiaz Lambat had failed to provide the spare key after his numerous promises to do so could not be fulfilled.
7. The Applicant alleges that the Respondent had told him that the vehicle was never involved in an accident and in fact, the Respondent does not sell vehicles that have been involved in accidents.
8. In January 2013, and while travelling from the Eastern Cape, the vehicle showed an engine light indicator and stalled. The Respondent towed the vehicle to Bloemfontein where it was repaired three weeks later at a cost of R15 210.87. From that day onwards, the vehicle gave unending problems.
9. In February 2014, the warranty and motor plan came to an end. All the repair costs thereafter were for the Applicant’s account.
10. In November 2014 the Applicant decided to sell the vehicle and went to BMW in Menlyn, Pretoria, for a valuation. The vehicle’s engine would not start. It came out during the valuation and assessment of the vehicle that it was involved in two accidents. The vehicle was towed to Centurion Mercedez Benz for a further assessment, at a cost of R7494.80. There, it was also confirmed that the vehicle indeed was involved in two accidents.
11. The Applicant then telephoned the Respondent (Imtiaz Lambat) about the state of the vehicle and the latter asked the Respondent to bring evidence about the accidents as he is only aware of the one accident, this, according to the Applicant, after he had denied that the vehicle was ever involved in an accident. According to the Applicant, the Respondent showed little interest in resolving the matter as, at all material times, the Applicant alleges, it was him who took the initiative of calling the Respondent in order to attempt to resolve the problem.
12. The Applicant produced evidence from Auto-Bid and Trans-Union regarding the alleged accidents, and the cost of repairs on the vehicle as follows: August 2008- R86 323.23 and July 2008- R76 659.
13. The Applicant then approached the Respondent for a possible resolution of the matter and presented two options in order to assist the Respondent to amicably resolve the issue of the accident non-disclosure. The Respondent, according to the Applicant suggested to the Applicant to get another vehicle at a good price on credit. The Applicant would not accede to such an arrangement as his credit status was allegedly not impressive and still owed the bank R210 000.00. The Respondent allegedly undertook to assist the Applicant, to no avail as all credit applications were declined. The Respondent then offered the Applicant the amount of R45000.00 which he declined as unreasonable. The Applicant found it unfair to be on the losing side, even though the Respondent was at fault for not disclosing such an important aspect of the vehicle at the time of the purchase and delivery of the vehicle.
14. The Applicant then approached the Motor Industry Ombudsman who according to the Applicant could not assist; Legal Wise who attempted to assist the Applicant; Megan Power, the Consumer Columnist and the National Consumer Commission who ultimately issued a notice of non- referral.
It is against this background that the Applicant subsequently lodged the application with the Tribunal in terms of Section 75(1) of the CPA during November 2015.
THE HEARING
15. At the hearing of this application, the Tribunal received papers filed by the Respondent on the eve of the hearing, purporting to be an application for postponement of this matter. The documents and more specifically the founding affidavit deposed to by one IMTIAZ LAMBAT is dated 17 March 2016. While the Tribunal takes note of the various submissions by the Respondent in this regard, and allowed the Respondent to canvass its application, a referral in terms of Section 75 of the Act is a referral of the complaint that the Applicant (Mbikiza) lodged with the National Consumer Commission (NCC) and in respect of which the NCC elected to issue a notice of non-referral. The Tribunal therefore firstly conducts a hearing to consider whether leave should be granted to hear the matter. This is what is before the Tribunal. If leave is granted, the Tribunal then conducts a hearing on the main dispute or complaint. The purpose of the proceedings is therefore not to hear a postponement application by the Respondent, as this application is, to say the least, not properly before the Tribunal.
PROCEDURAL ISSUES
16. In accordance with the NCT Rules, the Applicant has to file the section 75(1)(b) application within 20 business days of the date of the Notice of non-referral or within a longer time as permitted by the Tribunal. The date of the NCC’s Notice of Non- referral is 3 November 2015 and the Applicant therefore had until 1 December 2015 to file the application with the NCT. The application is dated 16 November 2015 and the date of receipt by the NCT’s Registrar’s office and the Respondent is reflected as 27 November 2015. The application is therefore within the required timeframes.
17. The Respondent failed to file papers in opposition to the Applicant’s application by serving an answering affidavit on the Applicant and on any other party to whom the notice in terms of Form TI 73(3) & 75(1)(b)(2) CPA was referred or was addressed to. The Respondent’s answer, if any, was to be delivered in accordance with the Tribunal Rule 30 within fifteen days of the date of receipt of such notice in order to comply with Rule 13.
18. In the alternative to failing to meet the Tribunal Rules’ requirements, the Respondent could have lodged a condonation application for the late filing of papers in terms of Rule 34.
19. Instead, the Respondent indicated that it could not file an application for condonation because the Tribunal did not issue a case number on the application submitted by the Applicant.
20. Further Instead, the Respondent sent correspondence to the Tribunal to seek removal of the matter from the roll and, on the eve of the hearing, filed an affidavit in request for a postponement. The Respondent’s reasoning that the Tribunal did not issue a case reference number on the Applicant’s application cannot be accepted by the Tribunal. The Respondent failed to follow the right procedures in litigating this matter. Evidence in the papers, [emails and notice of complete filing issued in December 2015] points to the fact that all the necessary information relevant to this hearing was appropriately and timeously furnished and communicated. The Respondent did not provide sufficient argument why there was a requirement, if any, to issue a case number as a form of authentication of Tribunal documents.
21. In the final analysis the Tribunal considered all the submissions made by the parties and dismisses the Respondent’s application for a postponement based on the afore-going.
22. The Tribunal proceeds to hear the Applicant’s application for leave to approach the Tribunal directly in terms of section 75 (1)(b)
CONSIDERATION OF THE APPLICATION FOR LEAVE
23. Section 75(1) of the Act requires that the NCC issues a notice of non-referral in response to a complaint as a pre-requisite for a referral in terms of that section to the Tribunal. It provides the following:
75 Referral to Tribunal
(1) If the Commission issues an notice of non-referral in response to a complaint, other than on the grounds contemplated in section 116, the complainant concerned may refer the matter directly to-
(a) the consumer court,……
(b) the Tribunal, with leave of the Tribunal (own emphasis).
24. The Applicant attached the Notice of non-referral from the NCC to this application. The Notice is in accordance with the form required by Regulation 36 and states: “I regret to inform you that the Commission will not refer your complaint, as the complaint does not allege any fact, if true, would constitute grounds for a remedy under the Consumer Protection Act, 2008.”
25. Sections 72(1)(a) and 73(1)(a) of the Act state that the Notice of non-referral shall be in the prescribed form. The prescribed forms are contained in the CPA regulations as Annexure F – Regulation 36 and Annexure G – Regulation 37 respectively.
26. The Tribunal is therefore satisfied that the NCC issued a Notice of non-referral as required by Section 75(1).
27. In the matter of Coertze and Burger v Young[1] the Tribunal considered the factors which must be evaluated regarding leave. The Tribunal held that the following two factors should be considered:
53.1 The Applicant’s reasonable prospects of success with the referral; and
53.2 Whether the matter is of substantial importance to the Applicant or the Respondent
28. The matter is, in all probability of substantial importance to the Applicant. He has gone to a great deal of effort to lodge the complaint with Mercedes-Benz South Africa (MBSA); Legal Wise; The Motor Industry Ombudsman of South Africa (MIOSA); Megan Power, the Consumer Columnist in the Star Newspaper; the NCC and finally approached the Tribunal in terms of section 75. The vehicle’s cost of repairs continues unabated after the motor plan expired. The Respondent therefore also appears to regard the matter as of substantial importance by attending to the Tribunal proceedings in its bid to assist to resolve the matter, albeit having followed incorrect procedure. The Respondent avers that there is a dispute of fact regarding the issue of accidents; the Respondent runs a reputable business and this matter is costly to the Respondent for as long at remains unresolved. In the premises, the Respondent opposes this application on the basis that the prospect of the Applicant’s success in the main application is not high.
29. The purchase of the vehicle in question took place in March 2012 which is after the CPA came into operation. The Applicant is a consumer as defined in the Act and the Respondent, a supplier of goods. This matter qualifies therefore, to be regarded as a consumer agreement in terms of this Act. The CPA is therefore applicable to the dispute and the Tribunal has jurisdiction to hear this matter. In considering the reasonable prospects of success the Tribunal is satisfied that the Applicant has laid a foundation for a complaint in terms of the CPA which the Respondent must answer to.
30. The Tribunal therefore grants leave for the matter to be referred directly to the Tribunal and to be heard. The Respondent has the opportunity to file answering affidavits in response to the Applicant’s allegations levelled against it, in the main matter.
31. There is no order as to costs.
Dated at Centurion on this 1st Day of April 2016
[signed]
Adv FK Manamela
Member
Ms P Beck-Paxton (Presiding member) and Prof B Dumisa (member), concurring.
[1] NCT/7142/2012/73(3)&75(1)(b)&(2)CPA. In this matter the Tribunal followed the principle applied in the High Court practice and took the approach found in the Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering(Pty)Ltd judgment. The Tribunal granted leave to refer matter directly to the Tribunal after considering reasonable prospects of success, and whether or not the case was of substantial importance to the Applicant or to him and the Respondent.