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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case number: NCT/122479/2018/75(1)(b)

 

In the matter between:

 

LUMKILE MKWALO                                                                                                   APPLICANT

 

And

 

MYSTICAL SUMMER TRADING 57 CC

Trading as ULTIMATE AUTO                                                                                     RESPONDENT

 

Coram

 

Adv. J Simpson - Presiding Tribunal member

 

Date of Hearing              - 14 May 2019

Date of Judgment          - 15 May 2019

 

RULING AND REASONS ON LEAVE TO REFER

THE PARTIES

1.        The Applicant in this matter is Lumkile Mkwalo, an adult male, residing in Deneysville (the “Applicant” or “Mr Mkwalo”). At the hearing Mr Mkwalo was represented by Mr Hatchett, an attorney from Morgan Law Attorneys.

2.        The Respondent is Mystical Summer Trading 57 CC, a close corporation registered in terms of the close corporation laws of South Africa, with its registered address at 11 Combrink Street Alrode Alberton (the “Respondent” or “Ultimate Auto”). The physical address of Ultimate Auto is at the corner of Grey and Voortrekker Streets in Vereeniging. There was no representative for the Respondent at the hearing.

APPLICATION TYPE

3.         This is an application in terms of Section 75(1)(b) of the Consumer Protection Act,    Act 68 of 2008, (hereinafter referred to as “the CPA”).

4.        Section 75(1) of the CPA states the following –

“If the Commission issues a notice of non-referral in response to a 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.”

JURISDICTION

5.        Section 75(5) of the CPA states that:

“The Chairperson of the Tribunal may assign any of the following matters arising in terms of this Act to be heard by a single member of the Tribunal, in accordance with section 31(1)(a) of the National Credit Act:

(a)…

(b) an application for leave as contemplated in subsection (1)(b)”

6.        Accordingly, the Tribunal has jurisdiction to hear this application for leave to refer a complaint to the Tribunal as contemplated under section 75(1)(b).

7.        A single member of the Tribunal may hear the application in accordance with section 75(5)(b) of the CPA.

BACKGROUND

8.        On 29 September 2015 Mr Mkwalo purchased a used 2007 model Audi A3 from the Respondent for R111 995.21. The odometer reading on the vehicle was 146 000km. Within three months of the purchase the vehicle broke down and was returned to the Respondent. At that time the odometer was on 156 420km. Ultimate Auto Service Centre provided a quote of R20 083.40 to repair the vehicle. The cambelt on the vehicle broke, which caused the damage to the engine. The cambelt was to have been replaced at the 120 000km service but it had not been done. 

9.        It appears a dispute then arose between the parties as to who would carry the cost of the repair. At some stage in March 2016 the Respondent agreed to claim R8500.00 from the warranty policy on the vehicle and to pay 50% of the balance remaining. Mr Mkwalo would then be responsible for the other 50% of the balance. The parties therefore each had to pay an amount of approximately R5000.00. Whether this solution was agreed to by Mr Mkwalo at the time is not clear. The vehicle was however then repaired by the Respondent but Mr Mkwalo refused to pay the amount proposed by the Respondent. The vehicle remained with the Respondent and is currently still there. The Respondent is now claiming an amount of R75 000.00 in storage costs and refuses to release the vehicle until this amount is paid.

10.      At some stage Mr Mkwalo lodged a complaint with the Motor Industry Ombudsman of South Africa (MIOSA). MIOSA issued a recommendation dated 5 June 2017. The recommendation was that Mr Mkwalo not be held liable for the repair costs but had to pay the storage costs before he could collect his vehicle.

11.       On 7 June 2017 Mr Mkwalo lodged a complaint with the National Consumer Commission (NCC). The NCC issued a Notice of non-referral dated 29 November 2017. The letter accompanying the Notice essentially stated that the complaint was subject to a dispute of fact, which the NCC could not resolve.

12.       On 18 December 2018 Mr Mkwalo lodged the application with the Tribunal for leave to refer the dispute to the Tribunal. He applied for condonation for lodging the application outside the 20 day period after the Notice of non-referral. In a judgment dated 24 February 2019 a member of the Tribunal granted the condonation.   

13.       In his application, Mr Mkwalo states that he wants an order that he is not liable for the storage costs. He further wants the vehicle returned to him at no cost.

HEARING IN DEFAULT

14.       It appears Mr Mkwalo may have initially filed the application with the Tribunal in April 2018. It is not clear from the file what happened to this filing. At some stage thereafter Mr Mkwalo appears to have obtained the services of an attorney to assist him. The complete application was then filed on 18 December 2018. It was served on the Respondent by email on the same date. The service by email was based on the Respondent agreeing to Mr Mkwalo using the e-mail address pjacques@telkom.net. A print-out from Windeed attached to the Application reflects Mr Frederick Jacobus Pieterse as being an active member of the Respondent. The consent to service is dated 13 February 2018.  It appears Mr Mkwalo obtained the consent when he initially tried to file the application but was unsuccessful at the time. The Registrar issued a notice of filing to the parties on 19 December 2018. A notice of set down was issued to all the parties on 15 April 2018.

15.      In terms of Rule 13 of the Rules of the Tribunal^[1], the Respondent had to respond to the application within 15 business days by serving an answering affidavit on the Applicant (by 17 January 2019). The Respondent however failed to do so.

16.       The Applicant did not file an application for a default order in terms of Rule 25(2).

17.      The Registrar however correctly set the matter down for hearing on a default basis due to the pleadings being closed.

18.        Rule 13(5) provides as follows:

“Any fact or allegation in the application or referral not specifically denied or admitted in the answering affidavit, will be deemed to have been admitted”

19.      Therefore, in the absence of any answering affidavit filed by the Respondent, the Applicant’s application and all of the allegations contained therein are deemed to be admitted.

20.      The Tribunal is satisfied that the application was adequately served on the Respondent. The matter therefore proceeded on a default basis.

APPLICATION FOR LEAVE

21.      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.

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

23.      In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd^[2] 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.”

24.      The Tribunal will therefore, when considering whether to grant the Applicant leave to refer the matter or not, use the same test as applied in the High Court for applications for “leave” and will consider:

24.1       The Applicant’s reasonable prospects of success with the referral; and

24.2       Whether the matter is of substantial importance to the Applicant, the Respondent or both.

25.      It is clear that the matter is of substantial importance to the Applicant. The Applicant has gone to great lengths to pursue his complaint. He is still paying for the vehicle that has not been in his possession for a number of years.

26.       Based on the uncontested evidence presented, the vehicle broke down within three months of purchase. If a finding is made that the vehicle was defective then the Applicant would be entitled to a refund, replacement or repair of the vehicle, in accordance with section 56 of the CPA.

27.       The Respondent’s claim regarding the storage costs appears to be a separate issue that does not appear to fall within the CPA. The legal basis on which MIOSA made a recommendation that these storage costs be paid is unclear. This issue can however be addressed by the full panel when the matter is heard.   

 

CONCLUSION

28.      The Tribunal finds that the matter is of substantial importance to the parties and there is a reasonable prospect of the Applicant succeeding in his claim against the Respondent.

ORDER

29.          Accordingly, the Tribunal makes the following order –

29.1       The Applicant’s application for leave to refer is granted; and

29.2       There is no order as to costs.

 

 

 

THUS DONE IN CENTURION ON THIS 15^th MAY 2019

 

 

 

[signed]

Adv. J. Simpson

Presiding Tribunal Member

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