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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/177466/2021/75(1)(b)

In the matter between:

JULIANA VAN VURREN                                                               APPLICANT

And

EASTERN CAPE MOTORS (PTY) LTD TRADING AS           RESPONDENT

EASTERN CAPE MOTORS UITENHAGE

Coram

Ms H Alwar    - Presiding Tribunal Member

Date of consideration (in chambers)        - 26 August 2021

Date of Judgment                                      - 29 August 2021

LEAVE TO REFER JUDGMENT AND REASONS

THE PARTIES

1.         The Applicant in this matter is Juliana Van Vuuren, an adult female residing in Port Elizabeth (“the Applicant” or “Ms Van Vuuren”).

2.         The Respondent is Eastern Cape Motors (Pty) Ltd trading as Eastern Cape Motors Uitenhage (“the Respondent” or “Eastern Cape Motors”). The Respondent’s principal business is at Corner Mitchell and Market Streets, Uitenhage.

APPLICATION TYPE

3.         The matter is concerning an application in terms of Section 75(1)(b) of the Consumer Protection Act, Act 68 of 2008 (“the CPA”).

4.         Section 75(1)(b) 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, a single member of the Tribunal has jurisdiction to hear this application for leave to refer a complaint to the Tribunal as contemplated under section 75(1)(b).

BACKGROUND

1.         The Applicant’s supporting affidavit is attached to her application for leave to refer. In her affidavit, the Applicant averred that on 25 April 2018 her husband bought a 2017 Ford Fiesta 1.4 Ambiente (motor vehicle) with an odometer reading of 22 500km from the Respondent.

2.         On 12 December 2019, she took the motor vehicle to the Respondent for a service and asked the Respondent to check a humming noise coming from the motor vehicle’s rear. The Respondent established that “the left rear steel rim was buckled, causing a humming noise and the right rear tyre had scallop marks present that would cause the tyre noise.” According to Ms Van Vuuren, she and her husband were not responsible for the damage to the rear rim. She averred that the vehicle was purchased with a defective, buckled wheel rim.

3.         On 24 December 2019, the motor vehicle was damaged when it was involved in an accident when another vehicle drove into the driver’s door. Ms Van Vuuren submitted that, when she collected the motor vehicle from the panel beaters, she noticed paint peeling from the rear door. She inquired whether the panel beaters had worked on the rear door. The response was negative. Ms Van Vuuren obtained an assessment report from Ubuntu Assessing which stated that the vehicle has been involved in an accident, that the right rear door had been painted, that the rear right fender was badly worked on, and that the right rear arch was not shaped properly.

4.         Ms Van Vuuren alleged that the motor vehicle was defective and that she has a right, as a consumer, to a product that is free from defects, and which will be useable and durable for a reasonable period of time. She also submitted that she was mispresented and not informed that the vehicle was involved in an accident.  She wants the Respondent to repair the accident damage of the vehicle (from the accident damage prior to the purchase of the vehicle) to an acceptable standard.

7.         On 18 August 2020, Ms Van Vuuren lodged a complaint with the National Consumer Commission (NCC). The NCC issued a Notice of non-referral dated 2 December 2020.

8.         On 31 January 2021, Ms Van Vuuren filed her application with the Tribunal. She also filed an application to condone the late filing of the application. Condonation for the late filing was granted in a written judgment dated 16 April 2021.

9.         The application was sent to Eastern Cape Motors by registered post on 23 January 2021. After condonation for the late filing was completely filed, a notice of filing was sent to Eastern Cape Motors by registered post on 11 March 2021. After the condonation ruling was granted, the ruling was sent to Eastern Cape Motors via e-mail. The Notice stated that Eastern Cape Motors must file its answering affidavit within 15 business days. Eastern Cape Motors did not file an answering affidavit.

APPLICATION FOR LEAVE

10.      In terms of section 75(1) of the CPA, the Applicant may only refer the matter directly to the Tribunal with leave of the Tribunal.

11.      Previously, the Tribunal held formal hearings on leave to refer, and all the parties would be present. In the matter of Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others (Case no 314/2020)  [2021] ZASCA 91 (25 June 2021) SAFLII, the court provided useful guidance to the Tribunal in decisions regarding leave to refer. It held that a formal hearing on leave to refer was unnecessary, there was no test to be applied and the decision to consider leave could not be appealed. The court held –

“[15] As I have explained, the NCA provides for an expeditious, informal and cost-effective complaints procedure. Section 141(1)(b) confers on the Tribunal a wide, largely unfettered discretion to permit a direct referral. The NCA does not require a formal application to be made and it is not necessary for purposes of the present appeal, nor is it desirable, to circumscribe the factors to which the Tribunal should have regard. There is no test to be applied in deciding whether or not to grant a direct referral to it in respect of a complaint. The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings by the Regulator, and to decide whether it deserves its attention. Circumstances which may influence its decision may include the prospects of success, the importance of the issue, the public interest to have a decision on the matter, the allocation of resources, the complainant’s interest in the relief sought and the fact that the Regulator did not consider that it merited a hearing before the Tribunal. The list is not intended to be exhaustive.”

12.      As there is no test to be applied, the Tribunal will consider the matter in the general context of the circumstances as submitted by the parties.

13.      Ms Van Vuuren relies on Section 55 and 56 of the CPA for the basis of her claim.  Sections 55 and 56 of the CPA only apply where goods become defective within six months after purchase. Based on the submissions made, the defects only arose after 8 months. Therefore, sections 55 and 56 cannot be applied.

14.      However, Ms Van Vuuren also submitted that she was misrepresented and not informed that the vehicle had been in an accident. Section 41 of the CPA provides for false, misleading, or deceptive representations made by a supplier. If Ms Van Vuuren can prove that Eastern Cape Motors misrepresented her and failed to disclose the defects in the vehicle and that the vehicle was in an accident, then she has reasonable prospects of succeeding in her claim of prohibited conduct.

15.      However, it must be noted that while Ms Van Vuuren has submitted what appeared to be an assessment report from Ubuntu Assessing, the document is not signed. Furthermore, the vehicle was involved in an accident after the vehicle was purchased. Ms Van Vuuren would further need to prove that the vehicle was in an accident prior to her purchasing it and that it had defects that were not disclosed. She would have to call an expert witness in this regard.

16.      In the interests of justice, the Tribunal will grant an opportunity to Ms Van Vuuren to prove her claim.

CONCLUSION

17.      The Tribunal finds that leave to refer the matter to the Tribunal can be granted.

ORDER

18.      Accordingly, the Tribunal makes the following order –

18.1   The Applicant’s application for leave to refer the matter directly to the Tribunal is granted; and

18.2   There is no order as to costs.

THUS DONE IN PRETORIA ON THIS 29th DAY OF AUGUST 2021

[signed]

Ms H Alwar

Presiding Tribunal Member

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