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[2018] ZANCT 51
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Auto Glen Motors (Pty) Ltd t/a Auto Glen v Barnes In Re: Barnes v Auto Glen Motors (Pty) Ltd t/a Auto Glen (NCT/106425/2018/148(1)) [2018] ZANCT 51 (23 July 2018)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case number: NCT/106425/2018/148(1)
In the matter between:
AUTO GLEN MOTORS (PTY) LTD T/A AUTO GLEN APPELLANT
and
YURILLE BARNES RESPONDENT
In re:
YURILLE BARNES APPLICANT
and
AUTO GLEN MOTORS (PTY) LTD T/A AUTO GLEN RESPONDENT
Coram:
Mr. A Potwana - Presiding Tribunal Member
Prof. T Woker - Tribunal Member
Ms. H Devraj - Tribunal Member
Date of Hearing – 23 July 2018
JUDGEMENT AND REASONS
APPELLANT
1. The Appellant is Auto Glen Motors (Pty) Ltd; a company that is duly registered in terms of the South African company laws. The Appellant was the Respondent in the main matter. At the hearing; the Appellant was represented by Mr. Kohn from the Johannesburg Bar.
RESPONDENT
2. The Respondent is Yurrile Barnes; an adult male person. The Respondent was the Applicant in the case being appealed. The Respondent represented himself.
TYPE OF APPLICATION
3. The Appellant has filed a Notice of Appeal against the entire ruling and reasons of a single member of this Tribunal, Mr. X. May. The appeal is brought in terms of section 148(1) of the National Credit Act 34 of 2005 which provides that: “A participant in a hearing before a single member of the Tribunal may appeal a decision by that member to a full panel of the Tribunal”.
BACKGROUND
4. On 11 July 2017; the Respondent filed Form TI.73(3) & 75(1)(b) & (2) CPA with the Registrar of the National Consumer Tribunal (hereinafter referred to as “the Registrar”). Form TI.73(3) & 75(1)(b) & (2) is the prescribed form for applying for leave to refer a complaint to the National Consumer Tribunal (hereinafter referred to as “the Tribunal”) after the National Consumer Commission (hereinafter referred to as “the Commission”) issued a notice of non-referral to a complaint. In “Part D: Order Sought from the Tribunal” of Form TI.73(3) & 75(1)(b) & (2); the Respondent wrote that he sought the following relief: “Vehicle Reg.RYS417GP be repaired without cost to me. Refund for High Pressure Pump and Storage fees” (sic in toto).
5. In support of the application; the Respondent attached an affidavit. In his affidavit the Respondent complained that; on an unspecified date; he went to the Appellant to acquire a Relay switch for his vehicle, a BMW X5. The Appellant’s Service Advisor advised him to bring in his vehicle to the workshop to replace the part; and assured him that only BMW had the proper equipment to reset the control unit (DDE) (hereinafter referred to as the “control unit”).It is not known what DDE means. He took his vehicle to the Appellant for diagnostics, the replacement of the Relay switch and the resetting of the control unit.
6. The Appellant’s mechanic informed the Respondent that the control unit was not functioning. The mechanic started the vehicle by bridging the high pressure pump (hereinafter referred to as the “pump”) directly. The vehicle started but the pump leaked; and the mechanic stopped the engine. The Appellant quoted R67 000.00 for new components. Unconvinced; the Respondent sought a second opinion since the pump was still under warranty at Bosch Randburg (hereinafter referred to as “Bosch”). He instructed the Appellant to remove the faulty components for inspection and tests. But; the Appellant’s Service Advisor offered to send the control unit to an accredited electronics repairer. A day later; the Appellant’s Service Advisor informed the Respondent that the control unit could not be repaired. Instead; the Service Advisor convinced the Respondent to install a new control unit. The Respondent instructed the Appellant to install a new control unit; and requested the faulty component back. But; the Appellant’s Service Advisor informed the Respondent that the Appellant will be sending the component to Germany for testing.
7. The Respondent took the pump to Bosch for a diagnosis on the leaks that were mentioned by the Appellant’s mechanic. Bosch tested the pump but did not find it defective. According to the Respondent; the pump is manufactured by Bosch for BMW vehicles. The Respondent took the tested pump back to the Appellant. The Appellant installed the pump. There were no leaks and the vehicle started. The vehicle was handed to him on 15 September 2013 and was driving fine for about 40 kilometres before it started losing power. He immediately returned the vehicle back to the Appellant. The Appellant’s Service Advisor advised him that the clamps to the intercooler of the Turbo were loose; and the Appellant would replace them.
8. The Respondent collected the vehicle on 16 September 2013. After travelling approximately 200 kilometres; over a period of three days; the vehicle broke down. The Appellant told him to tow the car to its workshop at his own expense. After initially being told that the problem was caused by faulty injectors; a few days later; the Appellant informed him that they tested the injectors and could not find any fault with them. Instead; he was told that it was the pump that broke. The vehicle was towed to Bosch and back to the Appellant at the Respondent’s expense. Bosch inspected the vehicle and reported that the pump was fitted incorrectly; and that caused a shaft inside the component to bend. The Appellant and Bosch blamed each other leaving the Respondent frustrated. Because the Respondent needed his vehicle for business purposes he was forced to instruct the Appellant to fit in a new pump at his expense. Apparently the Respondent left the vehicle at the Appellant’s premises.
9. A few weeks later; the Appellant called the Respondent and advised him that the injectors were faulty. The Appellant quoted R35 000. 00 for the replacement of 6 injectors. Acting on the advice of an accredited mechanic; Riaan Klein; the Respondent refused to have the injectors replaced. Instead; he collected his vehicle after paying service and storage costs. Klein advised him that the engine needed to be rebuilt or replaced. He sought diagnostic reports from various other accredited service providers. They all confirmed that the engine needed to be rebuilt or replaced.
10. After exhausting all means of resolving the dispute with Bosch and the Appellant; the Respondent requested assistance from SA Consumer Complaints. In a letter dated 28 March 2014; SA Consumer Complaints stated that the dispute remained unresolved; and the Respondent could refer the dispute to the Commission. It appears from the contents of the case file that sometime in November 2013 the Respondent lodged a complaint with the Motor Industry Ombudsman of South Africa (hereinafter referred to as the “MIOSA”). The Respondent also approached the Commission. In a letter dated 2 May 2014; the Commission confirmed receipt of the Respondent’s complaint and advised the Respondent that it had referred his complaint to the MIOSA.
11. In a letter dated 20 November 2015; the MIOSA advised the Respondent that the Appellant had not acted within the provisions of the Consumer Protection Act 68 of 2008; and should repair the Respondent’s vehicle at no cost to the Respondent within 31 days. The Appellant did not comply with the findings of the MIOSA. In March 2016; the MIOSA referred the complaint back to the Commission.
12. In a letter dated 23 May 2017; the Commission stated that the Respondent’s matter had prescribed. Attached to this letter is the Commission’s Notice of Non-Referral. In the Commission’s Notice of Non-Referral it is stated that the Commission will not refer the Respondent’s complaint as the complaint “is prevented, in term of Section 116 of the Consumer Protection Act, 2008, from being referred to the National Consumer Tribunal, because more than three years have passed since (a) the act or commission that is the cause of complaint”.
13. As stated in paragraph 4 above; the Respondent filed an application for leave to refer his complaint to the Tribunal on 11 July 2017. On 20 July 2017; the Respondent filed Form TI.r30A and Form TI.r34 with the Registrar. Form TI.r34 is the prescribed form for seeking condonation for non-compliance with a rule or procedure. In “Part C:Order Sought from the Tribunal and Grounds for Application”; the Respondent wrote that his application was not filed within 20 business days of the issuing of the Notice of Non-Referral by the National Consumer Commission (Hereinafter referred to as the “Commission”). In support of the application; the Respondent attached an affidavit. The application was not opposed. On 12 September 2017; the Tribunal granted the application for condonation.
14. On 16 October 2017; the Registrar issued a Notice of Complete Filing and served it on the parties by email. On 3 November 2017; the Applicant served its Answering Affidavit to the Respondent via email; by consent. In its Answering Affidavit; the Appellant raised two points in limine. The first point is that any claim that the Respondent had against the Appellant had prescribed. The second point is that the Respondent had made numerous allegations against Bosch; and did not know whether Bosch or the Appellant was at fault. The Appellant also stated that it was Bosch who first installed the pump; the pump was a Bosch Pump; and that at the time the Respondent received the pump, it was already faulty and needed to be replaced. The Appellant submitted that the Respondent should have cited Bosch. The Appellant also responded to all the Respondent’s allegations. In essence; the Appellant denied that it was liable for the damages suffered by the Respondent. It specifically denied that the pump was fitted incorrectly.
15. On 6 December 2017; the Registrar issued a notice of set down for the application for leave to refer to be heard before a single member of the Tribunal on 31 January 2018. On 8 April 2018; the Tribunal issued the judgement granting the leave to refer the Respondent’s complaint to the Tribunal.
16. On 4 May 2018; the Appellant filed a Notice of Appeal in terms of section 148(1) of the National Credit Act[1] (hereinafter referred to as the “NCA”). The appeal is based on the following grounds:
16.1. “The Honourable Presiding member erred in law and/or in fact –
16.1.1. In finding that the Tribunal had jurisdiction to entertain this matter in terms of Section 75(1)(b) of the CPA;
16.1.2. In failing to take cognisance of the correct factual matrix which has transpired and led to the present circumstances; namely:-
16.1.2.1. In finding that the Respondent instructed the Appellant to take the pump to Bosch Randburg for repairs;
16.1.2.2. In finding that the Appellant informed the Respondent that the vehicle’s injectors were damaged prior to the pump being taken to Bosch;
16.1.2.3. In finding that the Appellant’s legal representative stated that the Commission cannot pursue the matter as the complaint had prescribed when, in fact, the Appellant’s legal representative argued that the Tribunal cannot pursue the matter as, inter alia, the complaint had prescribed.
16.1.3. In finding that the matter is of substantial importance to both the Respondent and the Appellant in that no argument was led on this point.
16.1.4. In finding the parties be afforded an opportunity to state their versions of what transpired when the vehicle was taken to the Appellant for diagnosis and repairs; and possibly call witnesses; including expert witnesses as this would assist the parties in resolving the dispute; in that this was not based on any factual assertions that were made during the hearing of the matter and would not assist the Respondent with a statutory bar to proceed with the matter.
16.2. The Honourable Presiding Member erred in law and/or in fact by finding that he had the statutory authority to grant the application for leave to refer the matter directly to the Tribunal.
16.3. The Honourable Presiding Member erred in law and/or in fact by failing to find that the cause of action arose more than 3 years prior to the Respondent bringing the application; and that the Respondent took no steps to stay prescription since 2013; and in the circumstances the matter had prescribed.
16.4. The Honourable Presiding Member erred in law and/or in fact by finding that the Appellant did not comply with the Ruling of the MIOSA as the Respondent furnished the MIOSA with an incorrect e-mail address for the Appellant.
16.5. The Honourable Presiding Member ought to have found that pursuant to the Commission issuing the Respondent with a Notice of Non- Referral in terms of section 116 of the CPA; it was impossible for the matter to be referred to the Tribunal in terms of section 75(1)(b) of the CPA.
16.6. The Honourable Presiding Member ought to have found that in terms of Section 75(1)(b) of the CPA; the Tribunal was statutorily prohibited from having the matter referred to it due to the fact that the Commission issued the Applicant with a Notice of Non-Referral in terms of section 116 of the CPA.
16.7. The Honourable Presiding Member erred in law and/or in fact by finding that a joinder of Bosch was not necessary. This despite the fact that the allegations made against the Appellant are substantially the same; and it is substantially the same cause of action as the allegations made against Bosch Randburg.” (sic in toto)
17. On 22 May 2018; the Respondent filed an affidavit opposing the Notice of Appeal. In the affidavit, the Respondent generally refutes the contents of the Notice of Appeal.
18. The Registrar issued a notice of set down for the appeal to be heard on 23 July 2018 and sent it to the parties by electronic mail.
THE LAW
19. Section 148(1) of the National Credit Act 34 of 2005 provides that: “A participant in a hearing before a single member of the Tribunal may appeal a decision by that member to a full panel of the Tribunal”.
20. Section 75(1) of the CPA provides that:
“If the Commission issues a notice of non-referral in response to complaint, other than on the grounds contemplated in section 116, the complainant concerned may refer the matter directly to-
(a)…
(b) the Tribunal, with the leave of the Tribunal.”
ANALYSIS OF THE GROUNDS OF APPEAL
Re : Paragraph 1.1 of the Notice of Appeal
21. The Appellant contends that the Tribunal did not have jurisdiction to entertain the application for leave to refer. This contention is unsubstantiated but appears to be based on the fact that in its notice of non-referral; the Commission stated that the complaint “is prevented, in term of Section 116 of the Consumer Protection Act, 2008, from being referred to the National Consumer Tribunal, because more than three years have passed since (a) the act or commission that is the cause of complaint”. This ground of appeal fails to take into cognisance the decisions of this Tribunal in several similar matters; including in David Lazarus and Another v RDB Project Management CC t/a Solid[2].In this matter; the Tribunal granted leave to refer a complaint to the Tribunal even though the conduct complained of occurred more than three years prior to the making of the application for leave to refer the complaint to the Tribunal. The Tribunal alluded to section 69 of the CPA which provides various forums for referring complaints. The Tribunal also alluded to the provisions of section 4(2)(b)(i) of the CPA which enjoins the Tribunal or a court to promote the spirit and purpose of the CPA. Consequently; the Tribunal declared that prescription was interrupted. Therefore; a referral of a complaint to one or more of the forums mentioned under section 69 of the CPA interrupts prescription. Accordingly; the Tribunal has jurisdiction to hear applications for leave to refer where such leave could not be sought earlier because the complainant’s complaint was before the forums mentioned under section 69 of the CPA. It follows that the Appellant’s submission in this regard must fail.
Re: Paragraph 1.2 of the Notice of Appeal
22. The Presiding Member’s written judgement does not allude to the factual matrix mentioned by the Appellant in this part of the Notice of Appeal. It follows that there is basis upon which the Appellant may argue that the Presiding Member failed to take cognisance of the correct factual matrix. Accordingly, this ground of appeal must fail.
Re: Paragraph 1.3 of the Notice of Appeal
23. This ground of appeal ignores the fact that the Respondent had filed extensive papers which showed the very long route the Respondent had travelled in his quest for redress. The Appellant had also filed legal documents in an attempt to refute the Respondent’s claim. Therefore; in spite of the fact that no argument was heard of this point; the Presiding Member had sufficient material at his disposal to make the finding that he did.
Re: Paragraph 1.4 of the Notice of Appeal
24. The Appellant’s contentions in this regard cannot be faulted.
25. Firstly; in its Answering Affidavit; the Appellant extensively refuted the Respondent’s version. Secondly; the Respondent’s responses to the contents of the Appellant’s extensive Answering Affidavit were; at best; inadequate. Thirdly; at the hearing; the Respondent failed to point out to any evidence or present any argument upon which the Presiding Member could find that the Respondent enjoyed reasonable prospects of success.
26. Having concluded that there was no basis upon which the Presiding Member could find that the Respondent enjoyed reasonable prospects of success; it is unnecessary to deal with the other grounds of appeal.
RULING
27. I am of the view that the Presiding Member erred in finding that the Respondent enjoyed reasonable prospects of success and granting the Respondent leave to refer his complaint to the Tribunal. The reasons for this conclusion are that:
27.1. The Respondent failed to establish, on a balance of probabilities, that he enjoyed reasonable prospects of success;
27.2. There is no indication that the Presiding Member assessed the Respondent’s reasonable prospects of success; and
27.3. The Presiding Member based his decision on affording the parties an opportunity to state their versions. This is clearly not the correct test in deciding applications for leave to refer complaints to the Tribunal.
ORDER
28. Accordingly, the Tribunal issues the following order:
28.1. The appeal is upheld;
28.2. There is no order made as to costs.
Thus done and dated on this 20th day of August 2018.
[signed]
Mr. A Potwana
Presiding Tribunal Member
Prof. T Woker (Tribunal member) and Ms H Devraj (Tribunal member) concurring.
[1] 34 of 2005.
[2] NCT/36112/2016/75(1).