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Ralph v Auto Motorworx CC (NCT/109285/2018/75(1)(b)) [2018] ZANCT 148 (5 November 2018)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/109285/2018/75(1)(b)

In the matter between:

THOMAS RALPH                                                                                                                 APPLICANT

and

AUTO C MOTORWORX CC                                                                                                         RESPONDENT

 

Coram:

Mr F Sibanda               –          Presiding member

Date of hearing            –          26 October 2018

Date of judgement       –          05 November 2018

 

JUDGMENT AND REASONS

 

PARTIES

1. The Applicant in this matter is Thomas Ralph (hereinafter referred to as “the Applicant”), a South African adult male, who lodged a complaint with the National Consumer Commission (hereinafter referred to as “the NCC”) against the Respondent. At the hearing the Applicant represented himself.   

2. The Respondent is Auto C Motorworx CC, a close corporation with registration number: 2009/142211/23, duly registered in terms of the company laws of the Republic of South Africa (hereinafter referred to as “the Respondent”). A CIPC report dated 18 June 2018 however states that the Respondent is in ‘AR Final De-registration’ and it appears that the Respondent is in danger of being de-registered as a close corporation should it not file its annual returns. Should de-registration of the Respondent occur, the Respondent will no longer have locus standi. The Respondent did not appear at the hearing and was not represented.

 

APPLICATION TYPE

3. This application is brought in terms of section 75(1)(b) of the Consumer Protection Act, No 68 of 2008 (“the CPA”). The Applicant seeks leave to refer a complaint directly to the Tribunal following a notice of non-referral issued by the NCC.

4. The Tribunal has jurisdiction to hear this matter.

 

ISSUES TO BE DECIDED

5. The Tribunal must decide whether to grant leave to the Applicant to refer this matter directly to the Tribunal. In order to arrive at such a determination, the Tribunal is required to consider, amongst other things, the Applicant’s prospects of success.

 

BACKGROUND

6. On or about 16 August 2016, the Applicant asserts that he noticed a small drip of what he considered to be transmission fluid leaking from his car onto his garage floor at his residence. He took the car, a BMW 320i, 1992 model, to the Respondent’s premises to be checked.

7. On 18 August 2016, the Applicant received a quotation from the Respondent in the amount of R2 500.00 for repair work to be conducted on his car. The diagnosis indicated that the fluid drip was from a small leak around the gearbox filler plug and another leak from the power steering bottle. The Applicant gave the Respondent permission to proceed with the repair work.

8. On 23 August 2016, the Applicant received a call from a representative of the Respondent indicating that the identified leaks had been repaired but that the Respondent had now discovered that another seal was leaking from the car and the cost of repair would escalate to R4 000.00. The Applicant once again gave permission for the Respondent to proceed with the repair work, on condition that this R 4 000.00 quotation amount would be the final figure.

9. On 29 August 2018, the Applicant collected his car from the Respondent after being informed that all leaks had been repaired and the car had been tested and was fine.

10. On 5 September 2016, the Applicant again noticed what appeared to him to be transmission fluid on his garage floor. He called the Respondent to come and collect the car to attend to the leakage, which the Respondent did. On 7 September 2016, the Applicant was told by the Respondent that the leak was from a seal that they had just fitted but the problem was that the area on the vehicle where the seal was positioned was worn out. The area had to be repaired or a new gearbox fitted.

11. The Applicant informed the Respondent that there was no way that he could afford the cost of the additional repair work nor a new gearbox and the Applicant thus demanded his car back including a refund of the R4 000 which he had already paid.

12. On 9 September 2016, when the Applicant enquired whether he could collect his car from the Respondent, he was informed by the Respondent that the car had been sent to a gearbox repair place. The Applicant protested, and demanded his car back, but to no avail.

13. On 14 September 2016, the Applicant went to collect his car from the Respondent after being informed that it had been repaired and everything was fine. However, he met the owner of the Respondent, who told him that he must pay R7 000.00 for the extra repair work done.

14. The Applicant refused to pay the R7 000.00 and threatened to report the matter to the police. The Applicant was then given the keys to his car and he then took the car with him.

15. On 10 October 2016, upon arrival at his workplace, the Applicant noticed oil leaking from the car. He called the Respondent who refused to assist indicating that the Applicant was owing R7 000 for the repair work done. The Applicant called a towing company who ferried the car on a flat-bed, tow-truck to his house.

16. On the same day, on 10 October 2016, the Applicant contacted the Retail Motor Industry (RMI) to lodge a complaint. The RMI tried unsuccessfully to get a response from the Respondent.

17. On 17 October 2016, the RMI advised the Applicant to approach the Motor Industry Ombudsman of South Africa (MIOSA) for relief, which the Applicant did. However, the Respondent did not participate in the proceedings nor comply with the ruling from MIOSA.

18. On 2 June 2017, the Applicant filed a complaint against the Respondent with the NCC. After assessing the complaint, the NCC decided to issue the Applicant with a notice of non-referral. The basis of the non-referral by the NCC was that there is a dispute of facts between the Applicant and the Respondent, which should be settled through an arbitration process.

19. The Applicant then approached the Tribunal seeking leave to refer the matter directly to the Tribunal in accordance with section 75 of the CPA.

 

THE HEARING

20. The matter was set down for hearing on a default basis on 27 August 2018 due to the Respondent not filing an answering affidavit. However, the Respondent appeared at the hearing and requested a postponement in order to file a condonation application, and if granted, file an answering affidavit. 

21. The matter was postponed and the Respondent was given until the 7th of September 2018 to file a condonation application, failing which the matter would be set down again on a default basis.

22. The Respondent failed to file a condonation application by the set date and the matter was set down again.

23. At the hearing of 29 October 2018, the Respondent did not appear. Once the presiding member was satisfied that the Respondent was properly served with the application and that the Notice of Set Down was sent to the correct address, the matter therefore proceeded on a default basis.

24. Rule 24 of the Tribunal Rules[1], provides that –

24 (1) If a party to a matter fails to attend or be represented at any hearing or any proceedings, and that party –

(a) is the applicant, the presiding member may dismiss the matter by issuing a written ruling; or

(b) is not the applicant, the presiding member may –

(i) continue with the proceedings in the absence of that party; or

(ii) adjourn the hearing to a later date

(2) The presiding member must be satisfied that the party had been properly notified of the date, time and venue of the proceedings, before making any decision in terms of sub-rule (1).”

25. Furthermore, according to Rule 13(5) of the Tribunal Rules, any fact or allegation in an application or referral not specifically denied or admitted in an answering affidavit will be deemed to have been admitted.

26. Thus, on this basis the Respondent is deemed to have admitted all the allegations made against it by the Applicant.

 

APPLICATION FOR LEAVE

27. In terms of section 75(1)(b) of the CPA, the Applicant may only refer the matter directly to the Tribunal with leave of the Tribunal[2].

28. In determining whether the Applicant should be granted leave to refer the matter directly, the Tribunal must consider the requirements for the granting of “leave”.

29. In the Supreme Court of Appeal case of Westinghouse Brake and Equipment (Pty) Ltd[3]  it was held 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.” 

30. Therefore, when considering whether to grant the Applicant leave to refer, the Tribunal will use the same test as applied in the High Court for applications for “leave” and will consider:

(a) the Applicant’s reasonable prospects of success with the referral; and

(b) whether the matter is of substantial importance to the Applicant or the Respondent.

 

APPLICANT’S REASONABLE PROSPECTS OF SUCCESS

31. Whilst it is not necessary to delve into the substance of the case in order to determine the Applicant’s prospects of success, the Tribunal deems it important in this instance to pronounce on certain issues raised by the Applicant. The following is a brief description of the Applicant’s case and an analysis of the applicable law.

 

CONSIDERATION OF THE FACTS AND THE LAW

32. The basis of the Applicant’s complaint is that the Respondent changed the quotation and went ahead to fix the car without the Applicant authorising the work to be done. This is a contravention of section 15(4) of the CPA.

33. Moreover, soon after taking possession of the car, the gearbox failed completely. The Respondent refused to take responsibility as required in terms of section 57(1) of the CPA. Section 15(4) of the CPA states that –

If a supplier has provided an estimate for any service, or goods and services, the supplier may not charge the consumer a price for that service, or those goods and services, that exceeds the estimate, unless after providing the estimate –

(a) the service provider has informed the consumer of the additional estimated charges; and

(b) the consumer has authorised the work to continue.”

34. The Applicant alleges that the Respondent went ahead to perform repair work on the vehicle without the Applicant’s authorisation, following the third quotation.

35. The Applicant appears to have good prospects of success. However, the Tribunal will have to determine whether the Respondent is in breach of the CPA after hearing the full merits of the case.

36. In terms of section 57(1) of the CPA –

A service provider warrants every new or reconditioned part installed during any repair or maintenance work, and the labour required to install it, for a period of three months after the date of installation or such longer period as the supplier may specify in writing.”

37. According to the Applicant, the Respondent refused to repair the vehicle when it broke down less than 3 months of having repaired it.

38. Again, the Applicant appears to have good prospects of success on this point. However, such a determination can only made once the Tribunal has heard the merits of the case.

 

IMPORTANCE OF THE MATTER

39. Another factor that the Tribunal must consider when deciding whether to grant leave to refer, is the importance of the matter. There is no doubt that the Applicant feels aggrieved by the actions of the Respondent and that this case is very important to him. The Applicant has approached various forums for redress. It is therefore in the interest of justice that the matter is heard.

 

RELIEF SOUGHT

40. The Applicant wants the vehicle to be repaired by an RMI approved supplier at the Respondent’s expense. The Applicant no longer trusts that the Respondent is capable of repairing the damage caused to the vehicle whilst it was in the Respondent’s care.

41. In granting orders, the Tribunal is guided by the CPA and the National Credit Act, No 34 of 2005 (“the NCA”). Where the Tribunal is unable to make an order as prayed for by an Applicant, section 150(i) of the NCA empowers the Tribunal to make any other appropriate order required to give effect to a right, as contemplated in the CPA or NCA. In this case, the Tribunal will have to determine whether it can grant the relief sought or make any other appropriate order under the circumstances in order to give effect to a violated consumer right.

 

CONCLUSION

42. The Applicant has brought its application in terms of section 75 (1)(b) of the NCA. In its application and at the hearing, the Applicant cited various sections of the CPA which the Respondent is alleged to have breached.

43. In the circumstances, the Tribunal determines that the Applicant has good prospects of success and thus it will be in the interests of justice for the merits of the matter to be heard.

 

ORDER

44. Having considered the evidence provided on the application for leave to refer the matter directly, the Tribunal makes the following order:

(a) the application for leave to refer the matter directly to the Tribunal is granted; and

(b) there is no order as to costs.

 

Dated this 5th day of November 2018

 

[signed]

___________________________

FK Sibanda

(Presiding Tribunal Member)


[1] National Credit Regulations, 2006. Government Gazette No 28864 of 31 May 2006.

[2] Own emphasis

[3] Westinghouse Brake and Another v Bilger Engineering (Pty) Ltd. (12/86) 1986 ZASCA 10 (6 March 1986)