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Mojela v Vodacom (NCT/27635/2015/75(1)(b)CPA) [2016] ZANCT 48 (14 March 2016)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/27635/2015/75(1)(b)CPA

In the matter between:

JOHANNES ANDRIES MOJELA                                                                                                   APPLICANT

and

VODACOM                                                                                                                                         RESPONDENT


Coram:

Mr F Sibanda          _    Presiding Member

Adv. FK Manamela  _   Member

Mr X May                _    Member

                             

Date of Hearing      –      28 October 2015


JUDGMENT AND REASONS

APPLICANT

1. The Applicant in this matter is Johannes Andries Mojela, a major male residing Damonsville, Brits, North West Province, South Africa (“the Applicant”).

RESPONDENT

2. The Respondent is Vodacom (Pty) Ltd, a company duly registered in terms of the relevant company laws of the Republic of South Africa, (“the Respondent”).

APPLICATION TYPE

3. This is an application in terms of section 75(1)(b) of the Consumer Protection Act 68 of 2008 (“the Act”), for leave to apply directly to the Tribunal on the grounds that the National Consumer Commission (“NCC”) issued a notice of non-referral in response to a complaint by the Applicant, stating that the complaint does not allege any facts, which, if true, would constitute grounds for a remedy under the Consumer Protection Act, 2008 .

4. The Applicant represented himself at the hearing and the Respondent was not available at the hearing.

5. The Tribunal has jurisdiction to hear the Application in terms of section  75(1)(b) of the CPA.

6. This judgment follows the hearing of this matter on 28 October 2015 at the National Consumer Tribunal offices, in Centurion.

7. The Applicant also filed a Form TI.r25(2) default application, due to the Respondent’s failure to attend the hearing and to file opposing and/or answering affidavits.

BRIEF BACKGROUND

8. In October 2002, the Applicant, (”Mojela”) entered into an agreement with the Respondent

 (“Vodacom”) in terms whereof the Applicant would operate what is known as a Community Services Telephone Operator (CSTO), in the village of  Bojating, situated in the eastern side of Mogwase Township, Rustenburg, North West province. The Applicant paid the amount of R26000.00 to secure containerised mobile telephonic equipment. The main intention of the CSTO, was to serve the community with telephony services in pursuit of what is called “bridging the digital divide”.  Vodacom supplied the equipment with five telephone lines to the Applicant to operate this business. One of the conditions of the agreement, according to the Applicant, is that the Respondent would provide sufficient signal power in the area in order to allow connectivity.

9. In November 2002, the Applicant complained to the Respondent that the area where he was operating from, had poor signal, and that the community was very unhappy about this, as they cannot log into the system operated by the Applicant. In many instances when his clients needed to use his services, they encountered unending network disruptions. Above this, the Applicant’s telephone lines and the sim-cards were deactivated.

10.   The Applicant approached the Respondent; the NCC; several regulatory authorities and lawyers in its bid to attempt to resolve the matter, without success. In one correspondence dated 1 June 2015, the NCC raised the issue of the transaction having occurred before the general effective date of the CPA , being 1 April 2011, thereby ousting the NCC’s jurisdiction to deal with the matter

11.   The Applicant alleges that the Respondent has breached the terms of the agreement and the Tribunal has the jurisdiction to hear this matter, should leave be granted.

ISSUES TO BE CONSIDERED BY THE TRIBUNAL

Preliminary issues

12.   The Tribunal, mero motu raised the following issues to gain more clarity on the Applicant’s application:

11.1   whether or not the application for leave to approach the Tribunal directly should be granted, notwithstanding the fact that the NCC has issued a notice of non-referral

11.2   whether or not the provisions of the CPA are applicable to this matter in view of the fact that the agreement was concluded in 2002, before the general effective date of the CPA, being 31 March 2011, and

11.3   to this extent asking the question whether or not the Tribunal has jurisdiction to hear this matter 

The Applicant’s response to the issues raised

13.   The Applicant referred the Tribunal to the agreement signed in 2002 and submitted that the Respondent breached certain terms of the contract.

14.   That he approached a firm of Attorneys; Legal Wise; the Law Society of the Northern Provinces; the NCC and ultimately the Tribunal for assistance.

15.   The Applicant further conceded that the issue of the non-applicability of the CPA was raised.

16.   Further that the Tribunal, according to the Applicant, is competent to hear the matter, specifically on the basis of the breach by the Respondent.

The Applicability of the CPA

17.   The general effective date upon which the CPA came into operation is 1 April 2011.The contract which forms the basis of this complaint was concluded in October 2002. The

issues raised by the Applicant in this matter relate to circumstances surrounding the conclusion of the contract which was entered into before the general effective date of the CPA.

18.   Item 3 of Schedule 2 of the CPA determines the extent to which the CPA applies to “pre-existing transactions and agreements.” The CPA does not apply to any transaction concluded, or agreement entered into, before the general effective date of the CPA being 31 March 2011.

19.   Section 53 and 58 of the CPA apply to pre-existing transactions: “only with respect to goods and services supplied to the consumer in terms of the agreement, on or after the effective date.”

20.   Accordingly, the CPA does not apply retrospectively in this matter. On this point alone the Tribunal finds that the Application before the Tribunal should not succeed. 

However, for the sake of completeness the Tribunal will deal with the legal requirements of the notice of non-referral.

The Notice of Non Referral

21.   In terms of Section 69(1)(a) of the Act, a consumer, which includes a franchisee, may seek to enforce any right in terms of the Act or in terms of an agreement, by referring the matter directly to the Tribunal in the case of that particular dispute, if such a direct referral is permitted by this Act

22.   The NCC issued a Notice of Non-referral to the Applicant on 10 June 2015, as provided for in Section 72(1) of the Act. The specific notice of non-referral indicates that the NCC held the view that the NCC does not have jurisdiction to provide the complainant with redress as the complaint does not allege facts constituting grounds for a remedy under the Consumer Protection Act. Section 75(1) (b) of the Act stipulates that the complainant concerned may (in the event of the issuing of a notice of non-referral by the NCC), refer the matter directly to the Tribunal, with leave of the Tribunal.

23.   In the matter of Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[1], the following was held:  "It is a general rule in the construction of statutes that a deliberate change of expression is prima facie taken to import a change of intention”.[2]  The specific provisions of Section 75(1)(b) of the Act and the requirement of the granting of leave to refer contained therein is such a “deliberate change of expression”.

By including this requirement the legislature expressed its intention of a separate requirement namely that a Section 75(1)(b) referral cannot be adjudicated on without the Applicant in a specific matter first having obtained leave from the Tribunal to make such a referral

24.   When determining whether the Applicant should be granted leave to refer the matter to the Tribunal, the Tribunal must consider 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 the Westinghouse Brake and Equipment (Pty) Ltd – matter, as cited above, 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.” 

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

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

24.2 Whether the matter is of substantial importance to the Applicant or Respondent.

26.    The Applicant’s prospects of success with the referral depends on whether the Tribunal is of the view that the issue at hand falls within the ambit of a contractual dispute related to goods and services, or whether the Applicant may be assisted with a certificate in terms of Section 115(2) of the Act, following a declaration of prohibited conduct.

27.   The matter is evidently of substantial importance to the Applicant, should the value of the amount paid by the Applicant be considered.  However, the reasonable prospect of success based on the current application before the Tribunal is doubtful.

28.   The CPA is not applicable to this matter because the CPA does not apply retrospectively to the agreements/ transactions concluded before the general effective date of 31 March 2011

29.   Further, in adjudicating matters, the Tribunal being a creature of statute, can only make orders provided for in the Act, and in terms of the powers conferred upon it under the National Credit Act. In this matter, and by virtue of the afore-going, the Tribunal has no jurisdiction to hear the main matter.

ORDER

30.   Accordingly, the Tribunal makes the following order-

29.1   the application for leave to refer is refused.

29.2    there is no order as to costs.

Dated at CENTURION on this 14th Day of March 2016

 

[Signed]

___________________________

Adv FK Manamela

 

Messrs: F Sibanda (Presiding Member) and X May (Member), concurring

 



[1]      1986 (2) SA 555 (A) at par 15.

[2]     See Barrett, N .0. v Macquet, 1947 (2) SA 1001 (AD) at p 1012; Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (AD) at p 1279