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Shabangu v RSM Auto CC t/a Autotique Pre-Owned and Another (NCT/203718/2021/75(1)(b)) [2022] ZANCT 10 (31 January 2022)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case Number: NCT/203718/2021/75(1)(b)

 

In the matter between:

 

SKHONA SHABANGU                                                                  APPLICANT

 

and

 

RSM AUTO CC

Trading as AUTOTIQUE PRE-OWNED                                        1ST RESPONDENT

 

MFC, a division of NEDBANK LTD                                               2ND RESPONDENT

 

Coram:

 

Adv J Simpson                                  – Presiding Tribunal member

 

 

Date of Hearing (in chambers)        - 31 January 2022

Date of Judgment                            - 31 January 2022

 

 

JUDGMENT ON APPLICATION FOR LEAVE TO REFER

 

 

APPLICANT

 

1.            The Applicant in this matter is Mr Skhona Shabangu, a major male (“Mr Shabangu” or “the Applicant”).

 

RESPONDENTS

 

2.            The 1st Respondent is RSM Auto CC, trading as Autotique Pre-Owned (“Autotique” or “the 1st Respondent”). The 2nd Respondent is MFC, a division of Nedbank Ltd (“MFC” or “the 2nd Respondent”).

 

APPLICATION TYPE

 

3.            This is an application in terms of Section 75(1)(b) of the Consumer Protection Act, Act 68 of 2008 (“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.            The Applicant’s documents and affidavit do not describe the claim clearly. It appears Mr Shabangu lodged an application with the Tribunal in terms of section 75(1) (b) of the CPA regarding purchasing a pre-owned 2012 model Audi A8 from Autotique on 26 May 2018. In November 2018, the vehicle was involved in an accident. After the vehicle was repaired at the insurance company’s cost, it was taken to an Audi centre for a final inspection in January 2019. The Audi centre noted defects in the steering rack mechanism and quoted an amount of R70 000 to repair. According to Mr Shabangu, he was informed that the defects existed in 2016 before purchasing the vehicle. Mr Shabangu took the vehicle back to Autotigue in February 2019. He insisted on the vehicle being repaired by Autotique and left it there. Autotique refused to repair the vehicle, and it has been there ever since. Mr Shabangu wants Autotique to pay the costs of the application, the arrear licence fees, all the instalments paid on the vehicle finance agreement and any other costs the Tribunal may order.

 

9.            Mr Shabangu lodged a complaint with the Motor Industry Ombudsman of South Africa (“MIOSA”) in April 2019. It appears MIOSA informed Mr Shabangu in September 2019 that it was unable to assist as the defect had been reported outside the required six- month period. Mr Shabangu also lodged a complaint with the National Consumer Commission (“the NCC”). He received a Notice of Non-referral from the NCC dated 15 April 2021. The Notice states that the vehicle was returned to the dealer outside the six months as required by the CPA.

 

10.         Mr Shabangu lodged the application for leave with the Tribunal on 23 September 2021; he also filed an application to condone the late filing of the application. The condonation for the late filing was granted in a written judgment dated 15 November 2021. The main Application was served on the Respondents by registered post. The Respondents did not file any answering affidavits. The matter was then set down for a default decision on leave to refer.

 

APPLICATION FOR LEAVE

 

11.         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.

 

12.         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.”

 

13.         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.

 

14.         Section 116[1] of the CPA states that a complaint may not be referred or made to the Tribunal more than three years after the act or omission took place. The vehicle was purchased in May 2018. According to the Applicant, the vehicle was defective when it was sold to him. Therefore, the act of selling a defective vehicle arose in May 2018. Mr Shabangu had until May 2021 to file an application with the Tribunal. He only filed the Application in September 2021, three months after the complaint had lapsed.

 

15.         The High court issued an unreported judgment stating that the Tribunal had no power to interrupt prescription[2]. Although the High court judgment referred to section 166 of the National Credit Act, 34 of 2005 (“NCA”), section 116 of the CPA and section 166 of the NCA have the same wording. The Tribunal is bound by the High court judgment and must strictly apply the provisions of section 116 of the CPA.

 

16.         The previous condonation judgment referred to the lapsing issue but found that the Tribunal could still adjudicate on the matter. In summary, the judgment states that the complaint has lapsed in terms of the defect, but section 116 of the CPA could be interpreted to read that the three-year period ran from the date when the consumer noticed the defect. I take note of my learned colleague’s reasoning, but I respectfully disagree. Section 116 of the CPA does not reference extending the lapsing period or exceptions that can be applied. It appears to me that my learned colleague is attempting to apply principles and sections of the Prescription Act 68 of 1969 to the CPA. The Prescription Act specifically provides for the various ways in which prescription applies and when it can be interrupted. None of these principles or sections appears in the CPA. Section 116 of the CPA does not reference the Prescription act. In my view, the two acts are entirely separate and distinct. One cannot apply sections or principles from one to the other.

 

17.         The Applicant did not provide any clear reason why MFC is cited as a respondent in this matter. The basis for any possible liability on the part of MFC has not been established or explained.

 

18.         It can further be noted that the Applicant has not provided any expert evidence to prove that the defects existed prior to the vehicle being purchased. Based on the application contents, the Applicant only attached a quote from Audi for the repairs. There is no indication of any evidence relating to the nature of the defects and how and when they arose. The Applicant did not attach any purchase documents reflecting the agreement between the parties or any sale conditions. Besides the lapsing issue, the Tribunal would, in any event, be unable to grant any order based on the available evidence.

 

19.         The Tribunal accepts and understands that Mr Shabangu may not be legally trained and may have difficulty clearly submitting and providing evidence for his claim. However, he is expected to provide a reasonably clear basis for his claim and reasonable prospects of proving it. The evidence submitted does not provide any reasonable prospects of proving his claim.

 

20.         It would not serve any practical or legitimate purpose to allow an application to proceed unless there is a reasonable prospect of the Tribunal making a finding on the matter.

 

CONCLUSION

 

21.         Mr Shabangu’s claim has lapsed in terms of the CPA. Further, he has not provided sufficient evidence to support a claim in terms of the CPA. There is no reasonable prospect of the Tribunal making a finding in his favour.

 

ORDER

 

22.         Accordingly, the Tribunal makes the following order –

 

22.1    The Applicant’s application for leave to refer is refused; and

 

22.2    There is no order as to costs.

 

 

 

THUS DONE IN CENTURION ON THIS 31ST DAY OF JANUARY 2022

 

 

[signed]

Adv. J. Simpson

Presiding Tribunal Member


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