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Valentine v Motus Corporation (Pty) Ltd trading as Cape Town Multifranchise (NCT/125291/2019/75 CPA-Rule 34) [2019] ZANCT 26 (19 March 2019)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

 Case Number: NCT/125291/2019/75 CPA – Rule 34

 

In the matter between:

 

DAVID ARTHUR VALENTINE                                                                 APPLICANT

 

and

 

MOTUS CORPORATION (PTY) LTD

trading as CAPE TOWN MULTIFRANCHISE                                      RESPONDENT

 

Coram:

Adv J Simpson                     – Presiding Tribunal member

 


CONDONATION RULING AND REASONS


APPLICANT

1.         The Applicant in this matter is Mr Valentine, a major male (hereinafter referred to as “Mr Valentine” or “the Applicant”). Mr Valentine is also the Applicant in the main matter.

RESPONDENT

2.         Mr Valentine cited the Respondent as “Kia Motors, the Cape Town branch of Associated Motor Holdings (Pty) Ltd trading as Cape Town Multifranchise”. However, this description does not appear to represent a valid juristic entity.

3.         The document on page three of the Application appears to confirm that the Application was served on a representative of the Respondent. The stamp by the Respondent states that it is “Motus Corporation (Pty) Ltd trading as Cape Town Multifranchise”. It therefore appears the Associated Motor Holdings (Pty) Ltd is not the correct party. The Cape Town Multifranchise dealership further appears to be comprised of a number of different vehicle manufacturers, Kia being one of them.  Aiming to ensure that the proper juristic entity is cited, the Tribunal will use the description as provided by the Respondent – “Motus Corporation (Pty) Ltd  trading as Cape Town Multifranchise” (hereinafter referred to as “Motus” or “the Respondent”). Motus is also the Respondent in the main matter.

BACKGROUND

4.         Mr Valentine lodged an application with the Tribunal on 5 February 2019 in terms of section 75(1) of the Consumer Protection Act, 2008 (“the CPA”). Mr Valentine is alleging that Motus sold him a new but defective Kia Sportage vehicle in January 2017. The tyres on the vehicle degraded within a very short period of time due to faulty wheel alignment settings. This required him to purchase new tyres at his own cost. He alleges that Motus should have ensured the wheel alignment was correct at the time of selling him the new vehicle and is responsible for the cost of the new tyres.

5.         He is requesting leave from the Tribunal to hear his dispute with Motus. He has further lodged an application to condone the fact that his application to the Tribunal was lodged outside the 20 business day period after receiving the notice of non-referral from the National Consumer Commission (“NCC”). This ruling deals with the application for condonation.

6.         It appears that Mr Valentine was initially under the impression that the rear door seals on the vehicle were the cause of the wind noise when driving the vehicle. Repairs were done to the vehicle but the noise continued. He approached the Motor Industry Ombudsman (“MIOSA”) at some point thereafter. They issued a recommendation dated 26 April 2018 stating that Motus should carry out the necessary repairs on the vehicle. It was then discovered that the actual cause of the noise was the tyres that were degrading irregularly due to the faulty alignment settings. He then lodged a complaint with the NCC. The NCC issued a report and a Notice of Non-Referral dated 13 December 2018. The report essentially states that wear and tear items such as tyres were not subject to the CPA.

7.         The Notice states that Mr Valentine can approach the National Consumer Tribunal to appeal the decision.  Row 32 of table 1B of the Rules[1] requires that the applicant lodge the application within 20 business days of the date of the Notice of Non-Referral. The Rules further state that the period between 24 December and 2 January shall not be included for the purposes of any time calculations[2]. 20 business days from 13 December 2018 is therefore 22 January 2019. Based on the 5 February 2019 date on the emailed application form, Mr Valentine appears to have filed the application approximately 9 business days after the due date.

8.         Mr Valentine’s affidavit in support of his application for condonation submits that he followed up with the NCC on the same day he received the notice. The NCC only responded on 8 January 2019. He does not provide any clear reasons for the delay thereafter but it is assumed that he only then started preparing for application to the Tribunal.

APPLICABLE SECTIONS OF THE ACT AND CASE LAW

9.         Rule 34 (1) provides “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.”

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

11.      Row 32 of Table 1 B contained in the Rules provides that the Applicant must file the Section 75(1)(b) application “Within twenty business days of the date of the Notice of Non-Referral, or within a longer time permitted by the Tribunal”.

12.      To condone means to “accept or forgive an offence or wrongdoing”. The word stems from the Latin term condonare, which means to “refrain from punishing”[3]. It can also be defined to mean “overlook or forgive (wrongdoing)”[4].

13.      In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[5] it was held that the standard of considering an application of this nature is the interests of justice.

14.      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:

13.1   the nature of the relief sought;

13.2   the extent and cause of the delay;

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

13.4   the reasonableness of the explanation for the delay;

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

13.6   the prospects of success[6]

15.      In Melane v Santam Insurance Company Limited[7] 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. The courts have traditionally demonstrated their reluctance to penalize a litigant on account of the conduct of his representative but it emphasized that there is a limit beyond which a litigant cannot escape the results of the representative’s lack of diligence or the insufficiency of the information tendered. (Salojee & Another NNO v Minister of Community Development 1965 (2) A 135 (A) 140H-141B; Buthelezi & Others v Eclipse Foundries Ltd 18 ILJ 633 (A) at 6381-639A).”

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

CONSIDERATION OF THE MERITS

17.      Motus has not opposed the application for condonation. It is therefore only the version of Mr Valentine that needs to be considered.

18.      Mr Valentine has not provided any clear reasons for the delay in filing the application outside the 20 day period. He received the further response from the NCC on 8 January 2019. He therefore had time within which to prepare the application to the Tribunal by 22 January 2019. However, the delay of approximately 9 business days is clearly not excessive. The Tribunal will further consider that Mr Valentine does not appear to be legally qualified and would not be aware of the Tribunal Rules. Although this lack of knowledge is not an excuse, it is a factor the Tribunal will always consider.

19.      As the application for condonation is not opposed, the factors considered above will be regarded as sufficient to grant the application for condonation.

20.      The prospects of success in this matter do not require extensive discussion at this stage. The facts presented do constitute a basis for a possible remedy in terms of the CPA. However, the fact that Mr Valentine is claiming for the cost of tyres he purchased, may present some difficulty, based on previous decisions by the Tribunal on similar claims. This aspect is however more appropriate for consideration when leave to hear the matter is heard by the Tribunal.

ORDER

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

21.1   The application by the Applicant to condone the late filing of his application for leave is granted; and

21.2   No order is made as to costs.

 

 

DATED ON THIS 19th DAY OF MARCH 2019

 

 

Adv J Simpson

Presiding Tribunal Member

 

 


[1] Regulations for Matters Relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal, 2007

[2] (3) Saturdays, Sundays, Public Holidays and the days between 24 December and 2 January shall not be included in the computation of any time expressed in days (or as business days) prescribed by these Rules or fixed by any order of the Tribunal.

[Sub-r. (3) inserted by GNR.203 of 13 March 2015.]

[3]   Oxford English Dictionary, Second Edition at pg 151.

[4]   Collins English Dictionary and Thesaurus, Fourth Edition 2011, at pg170.

[5]    2003 (11) BCLR 1212 (CC) at para[11].

[6]   Van Wyk v Unitas Hospital and Others 2008(4) BCLR 442 (CC) at para 20 as applied in Camagu v Lupondwana Case No 328/2008 HC Bisho.

[7]     1962 (4) SA 531 (A) at 532C-F.