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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/119746/2018/75(1)(b)

In the matter between:

ELNA DE BEER                                                                                               APPLICANT

and

CAW ENTERPRISE SOLUTIONS (Pty) LTD                                               RESPONDENT

T/A ACD CJ KLEYN’S AUTO SERVICES

Coram:

Presiding Member: Prof B Dumisa

Date of Judgement: 15 January 2019

CONDONATION JUDGMENT

 

APPLICANT

1. The Applicant is ELNA DE BEER (“the Applicant”), an adult female with physical address at […] F Street, George, in the Western Cape Province.  

 

RESPONDENT

2. The Respondent is the CAW ENTERPRISE SOLUTIONS (Pty) LTD t/a ACD KLEYN’S AUTO SERVICES  (“the Respondent”); with the offices and workshop situated at 5 Nywerheid Street, George Industria 6536, in the Western Cape Province.  

 

BACKGROUND

3. The main application was brought in terms of Section 75(1)(b) of the Consumer Protection Act.

4. The Applicant in the Condonation application is also the Applicant in the main matter.

5. The Respondent in the main matter is also the Respondent in the Condonation Application.

6. The Applicant filed for condonation for failure to file an application within 20 days from the date of receipt of the Notice of Non-Referral.

7. The Applicant’s reasons for requesting condonation are:

7.1 That on 12 October 2018, they received an email from the Tribunal stating that their application was incomplete due to the wrong citation of the Respondent;

7.2 The Applicant made submissions that the wrong citation of the Respondent was due to a bona fide error on her part when she made her first submission. Her reason for the error was that she was a lay person who did not understand the complications that come with the use of a trading name without stating the actual name of the entity; and

7.3 The Applicant made submissions that she had a strong case, and that the interests of consumers need to be protected.

 

APPLICABLE SECTIONS OF THE ACT AND CASE LAW

8. Rule 34 (1) [1]states “A party may apply to the Tribunal in Form TI r.34 for an order to:-

(a) condone late filing of a document or application;

(b) extend or reduce the time allowed for filing or serving;

(c) condone the non-payment of a fee; or

(d) condone any other departure from the rules or procedures.”

9. Rule 34 (2) states “The Tribunal may grant the order on good cause shown”.

10. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others^[2] it was held that the standard of considering an application of this nature is the interests of justice.

11. Whether it is in the interest of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of a discretion on an objective conspectus of all the facts. Factors that are relevant include but are not limited to:

11.1 the nature of the relief sought;

11.2 the extent and cause of the delay;

11.3 the effect of the delay on the administration of justice and other litigants;

11.4 the reasonableness of the explanation for the delay;

11.5 the importance of the issue to be raised in the intended appeal; and

11.6 the prospects of success.^[3]

12. In Melane v Santam Insurance Company Limited^[4] it was held that:

“The approach is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are inter-related: they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused…cf Chetty v Law Society of the Transvaal 1985(2) SA 756 (A) at 765 A-C; National Union of Mineworkers and Others v Western Holdings Gold Mine 1994 15 ILJ 610 (LAC) at 613E.”

13. From the dictum in Melane it was held that these factors are interrelated and should not be considered separately.

 

CONSIDERATION OF THE MERITS

14. In evaluating the merits of the application the Tribunal will consider the following factors:

14.1 The application for condonation is NOT opposed by the Respondents;

14.2 The Applicant has submitted substantial reasons in motivation of this Condonation Application;

14.2.1 The Applicant alleged that she bought a 2006 model Volkswagen Transporter 2.5TDI 15 seater bus;  

14.2.2 The Applicant used this vehicle for scholar transport; 

14.2.3 In January 2018, when the car was at about 486 634km, the car developed mechanical problems, which the Applicant described as follows: “It was losing coolant water which had to be topped-up regularly and there was a strong indication of water being present in the sub assembly oil (light grey colour) as was pointed out to me by a service advisor. I approached the ACD George CJ Kleyn’s Auto Service (hereafter referred to as ACD) in an attempt to have the vehicle repaired. The faults were diagnosed by ACD and a verbal cost estimate of between R13 000 and R15 000 was given to me upon which I agreed to.”

14.2.4 On 22 January 2018 ACD commenced work on the vehicle on their premises. The repairs were completed on 1 February 2018;

14.2.5 On 2 February 2018 she collected the car after paying the total repair costs of R9830.79 in full;

14.2.6 She said the problems started within one kilometre after collecting the vehicle. The same problems she had before started all over again;

14.2.7 The Respondent collected the car, on 12 February 2018, from the Applicant’s premises to their (Respondent’s) repair workshop;

14.3 The Applicant’s core complaint was that the Respondent proceeded to strip the car presumably for problem diagnoses purposes; which culminated on a repair cost estimate of R59 278.94, for which a deposit of R42 000 was required;

14.4 The Applicant felt that the Respondent did what they were not requested to do when they stripped the car for engine diagnoses purposes;

14.5 The Applicant was aggrieved that the wrong diagnosis was done without her prior consent, hence not prepared to pay the amount demanded and / or the R150 per day storage fees demanded by the Respondent;

14.6 The Applicant wanted the car to be taken to an independent assessor for and independent mechanic to repair the car;

14.7 The Applicant also had other claims for consequential damages as she alleged that the Respondent owes her for the costs of a replacement car whilst the car remained with the Respondent for repairs and during the course of this dispute; and

14.8 The Applicant asserted they had a real defence to the allegations of breaches of the Act as set out in the Respondent’s Compliance Notice.

 

ASSESSMENT OF THIS MATTER BY BOTH MIOSA AND THE NCC

15 The Applicant referred the matter to the Motor Industry Ombudsman of South Africa (MIOSA) for redress.

16 MIOSA did its own investigations by contacting and interviewing both parties and relevant documents.

17 MIOSA concluded that the Respondent had followed the correct procedures and processes in diagnosing the real mechanical problems with the Applicant’s car; and that the oil cooler and radiator had been repaired on the said car.

18 The Applicant thereafter referred the same matter to the National Consumer Commission (NCC) which also followed the same processes as the MIOSA, and also assessed the MIOSA report.

19 The NCC concluded “The Commission has assessed your complaint, as well as the MIOSA report and determined that the dispute raised in the complaint were addressed by the supplier. The issue in dispute is the assessment that must be conducted by an independent assessor, as you do not fully agree with the assessment done by the supplier. The Commission is of the view that you can do this process independently. As result of the above, we will not pursue your matter.”

 

CONCLUSION

20. There are two issues at the core of this Condonation Application, namely, whether the Tribunal can condone the delays relating to the lodging of the complete papers, including the correction of the Respondent’s citation. On this point, the Tribunal is satisfied that the Applicant had bona fide reasons for not properly following those requirements, as the Applicant is a lay person without proper knowledge on citation procedures.

21. The second part of this Condonation Application is determining if it will be in the interests of justice to grant the condonation as applied for; in this case the Tribunal does not agree with the Applicant that it will be in the interests of justice to grant the condonation, when the matter is viewed holistically, for the following reasons:

21.1 The Applicant contended that Respondent collected the car, disassembled (stripped) it in order to prepare an estimate, without the prior consent of the consumer. This is problematic to accept at face value:

21.1.1 When the Applicant gave the car to the Respondent, did the Applicant just assume that the Respondent was just going to repeat the same diagnosis of the water cooler as done before,  which had not worked hence the car broke down within a kilometre after collecting it;

21.1.2 Can it not be reasonably assumed that when the Applicant released her car to the Respondent on 12 February 2018, the Applicant was giving the Respondent the consent to fully diagnose the real mechanical causes of this water cooler problem, which automatically includes stripping / disassembling the engine as done by the Respondent?

21.2 Both MIOSA and the NCC concluded that the procedures and processes followed by the Respondent were reasonable, under the circumstances.

22 Under the circumstances, the Tribunal does not agree with the Applicant that she has high prospects of success should this case be referred to the Tribunal for a hearing. The main reasons for this conclusion are:

22.1 The Applicant has not made a good case whether the second diagnosis done by the Respondent could have yielded different results had it been done by another assessor;

22.2 The age and mileage of the car at 12 years and 486 634km warranted such further diagnosis; and

22.3 The MIOSA and the NCC were justified in concluding that the independent assessment demanded by the Applicant had to be at her own cost; and such is not covered under the Act.  

 

ORDER

23 Accordingly, for the reasons set out above, the Tribunal makes the following order:

23.1 Condonation is hereby NOT GRANTED to the Applicant for the late filing of the Form T1.34 in terms of which the Applicant sought the Tribunal’s condonation for non-compliance with a rule or procedure, in terms of Tribunal Rule 34;

23.2 The Condonation is not granted on grounds that there are no prospects of success for this matter should it be referred to the Tribunal for a full hearing on merits; and 

23.3 No order is made as to costs.

 

 

 

DATED ON THIS 15^th day of January 2019

 

Prof B Dumisa

Presiding Member

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