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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/117246/2018/75(1)(b)

In the matter between

ANELE LAWYER MNCANZA                                                                            APPLICANT

and

JO CONSUMER ELECTRONICS AND APPLIANCES

T/A INCREDIBLE CONNECTIONS                                                              RESPONDENT

 

Coram:

Prof Tanya Waker- Presiding member Date of hearing: 16 April 2019

 

APPLICATION FOR LEAVE TO REFER

POSTPONEMENT ORDER

 

THE PARTIES

1. The Applicant is Anele Lawyer Mncanza a consumer who lodged a complaint with the Consumer Goods and Services Ombud (CGSO) and the National Consumer Commission (the NCC), in terms of Section 72(1) {a) of the Consumer Protection Act, 2008 (the CPA) (hereinafter referred to as "the Applicant"). At the hearing, the Applicant represented himself.

2. The Respondent is JO Consumer Electronics and Appliances {Pty) Ltd t/a Incredible Connection. There was no appearance at the hearing by the Respondent or its representative.

 

APPLICATION

3. The application brought before the National Consumer Tribunal (the Tribunal) is in terms of section 75(1)(b) of the CPA.

4. The Applicant lodged a complaint with the NCC about an advertisement which was published by Incredible Connection in a newspaper.

5. The Applicant received a notice of non-referral from the NCC in response to his complaint on 4 September 2018 on the basis that the advertisement contained an inadvertent and obvious error which the supplier was not bound by as it had corrected the error. The notice of non-referral stated that the complaint does not allege any facts which, if true, would constitute grounds for a remedy under the CPA.

6. In October 2018, the Applicant applied for condonation for the late filing of his application for leave to refer his complaint directly to the Tribunal. Condonation was granted by the Tribunal on 21 January 2019.

7. The Applicant is now applying for leave from the Tribunal for the complaint to be referred directly to the Tribunal.

 

SERVICE OF DOCUMENTS

8. In accordance with Table 2 of the Rules for the Conduct of matters before the Tribunal when a consumer makes an application in section 75(1)(b) the following parties must be notified of the application:

(1)  The Commission;

(2)  The Respondent; and

(3)  Any other parties that will be affected by the order or relief sought in terms of Form 75 (1) (b) and (2) of the CPA.

9. The Applicant is required to serve the following documents on the Respondent:

(1)  Form T1r30A (the filing notice);

(2)  Form T1.73(3) and 75 (1) (b) & (2) {the notice of application for referral of a complaint to the Tribunal);

(3)  Annexure E of the CPA (the complaint initiation form filed with the NCC) together any documents which were included in the complaint initiation;

(4)  The NCC's notice of non-referral; and

(5)  An affidavit in which the Applicant sets out his reasons for referring the matter directly to the Tribunal.

10. The Respondent is JO Electronics and Appliances which is trading as Incredible Connection. Incredible Connection is a brand of JO Electronics and Appliances trading under the registration number 1963/002315/07.

11. From the documents before the Tribunal, it is clear that the Applicant served documents on an outlet of Incredible Connection that is; the store where he sought to purchase the advertised product. This store is situated at Mall @Red, Shop 61, Roo1huiskraal, Centurion.

 

HEARING

12. At the hearing held on 16 April 2019, the Applicant informed the Tribunal that when he attempted to serve the documents personally on the manager of the Incredible Connection outlet, the manager informed him that he must serve the documents on head office.

13. The Applicant also informed the Tribunal that he had had telephonic dealings with someone at the head office of the Respondent. He had been contacted by this person after he had complained about the Respondent's advertisement.

14. The Applicant was however of the view that as he had dealt with a particular outlet, the documents relevant to his complaint should be served on this outlet. He served the documents on the outlet by registered mail.

 

ASSESSMENT

15. From the documents before the Tribunal, as well as from information provided by the Applicant it is clear that there has been no proper service of the application on the Respondent in accordance with the Tribunal Rules.

16. The fact that there has been no response from the Respondent is also an indication that the Respondent is unaware that there is a matter before the Tribunal.

17. The Tribunal Rules require that before a matter can proceed, the relevant parties, which will be affected by a Tribunal order, should be informed in order that they may have an opportunity to respond.

18. In this matter the Respondent is the entity complained about and thus the matter can only proceed if the Respondent is informed of the matter and is afforded an opportunity to respond.

19. The Applicant is an unrepresented consumer who obviously does not understand legal practices and procedures. He should, therefore, be given an opportunity to ensure that he does comply with the rules.

20. For this reason, the matter is postponed to enable the Applicant to comply with the Tribunal Rules.

 

ORDER

21. The matter is postponed sine die.

22. The Applicant must, by 16 May 2019, ensure that the documents are served on the Respondent in accordance with Rule 30 of the Tribunal Rules.[1]

23. The Applicant must provide the Tribunal with proof of service.

24. If the Applicant does not file the documents in accordance with the Tribunal Rules by 16 May 2019, the matter must again be set down for a hearing.

25. If the Applicant does file the documents in accordance with the Tribunal Rules on or before 16 May 2019 the normal time periods for the service of answering and replying affidavits apply; the matter must be set down for a hearing taking those time periods into consideration.

 

 

DATED 4 June 2019

Prof T Woker

Presiding Member

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