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[2023] ZANCT 34
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Bisschoff v Mcintyre Van Der Post Incorporated (NCT278955/2023/148(1)) [2023] ZANCT 34 (10 October 2023)
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IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION
Case Number: NCT278955/2023/148(1)
In the matter between:
ZELDA BISSCHOFF APPELLANT
and
MCINTYRE VAN DER POST INCORPORATED RESPONDENT
Coram: Ms Z Ntuli – Presiding Tribunal Member
Adv C Sassman – Tribunal Member
Ms N Maseti – Tribunal Member
Date of hearing – 2 October 2023, via MS Teams
Date of ruling – 10 October 2023
APPEAL RULING AND REASONS
APPELLANT
1. The appellant is Ms Zelda Bisschoff, a major female (the appellant). The appellant is a consumer, as defined in section 1 of the Consumer Protection Act 68 of 2008 (the CPA).
2. At the hearing, the appellant represented herself.
RESPONDENT
3. The respondent is McIntyre van der Post Incorporated (the respondent), a law firm based in Bloemfontein. The respondent is a supplier, as defined in section 1 of the CPA.
4. Mr Derk van Vuuren, a director in the law firm, represented the respondent.
TERMINOLOGY
5. A reference to a section in this ruling refers to a section of the CPA.
6. A reference to a rule in this ruling refers to the Rules of the National Consumer Tribunal (the rules).[1]
TYPE OF APPLICATION
7. This is an application in terms of section 148(1) of the National Credit Act No. 34 of 2005 (the NCA) to the National Consumer Tribunal (the Tribunal) to appeal a ruling of a single member of the Tribunal.
8. The Tribunal heard the matter on 17 April 2023. It issued a written ruling dated 9 June 2023, wherein a single member refused the appellant’s application for leave to refer a matter directly to the Tribunal in terms of section 75(1)(b).
9. The Tribunal has jurisdiction to hear the appeal in terms of section 27(a)(i) of the NCA.
THE RULES
10. Rule 26(1) states that an appeal lodged against a ruling of a single member of the Tribunal must be referred by the Chairperson to an appeal panel consisting of three members of the Tribunal.
11. Rule 27(2)(a)-(b) provides that the appeal panel is not restricted to the record of the proceedings before a single member and may call for additional documentation and representations from the parties on any matter relevant to the complaint or procure expert evidence and further research.
BACKGROUND
12. The matter stems from a complaint lodged by the appellant with the NCC alleging the contravention of the CPA. According to the appellant, she agreed with the respondent for advice services on foster care application procedures and any other aspects she required assistance with. No quotation was given, and the respondent said the contract was an incidental transaction based on written instructions.
13. On 29 February 2019, the appellant received an invoice of R8426,28 for services performed from 4 December 2018, which she believes were unsolicited. She paid R2708,48 and disputed the remaining R5717,80. The appellant disputed the nature of the services rendered during the above stated period, which the respondent asserts pertained to reading of documents and other aspects. The appellant strongly contends that she did not instruct these services. The parties could not resolve the dispute, and the appellant struggled to obtain documents relating to the services from the respondent.
14. The appellant referred the dispute to the Legal Practice Council (LPC), which considered the billing and concluded that the services were indeed rendered but noted some miscalculation on the account, which the LPC addressed through a formal taxation process. However, the LPC did not consider whether the services rendered were unsolicited, and the appellant proceeded to lodge a complaint with the NCC. The NCC issued a notice of non-referral on 30 September 2022, stating that a court of law has already considered the complaint.
15. The appellant's complaint had two parts: 1) the unsolicited services and 2) the prohibited conduct of commencing debt collection proceedings before the dispute resolution process was concluded. She said neither the LPC, Magistrates’ Court, nor High Court had considered these allegations.
16. The appellant said she tried to oppose the Magistrates’ Court proceedings and to review its decision at the Free State High Court and approached the Constitutional Court but was unsuccessful. Even her attempt to get the orders rescinded was dismissed. Therefore, she believes that the NCC erred in its findings that the court of law considered the allegations in question.
17. On 10 October 2022, the appellant applied for leave to refer the matter directly to the Tribunal in terms of section 75(1)(b). She requested the Tribunal to make an order on the unsolicited services complaint, issue a certificate of prohibited conduct, issue a certificate of unconscionable conduct, and consider imposing an administrative penalty and award costs in her favour.
18. On 9 June 2023, a single member of the Tribunal refused the application, stating that the LPC considered the allegations regarding the invoicing within its mandate and that the Tribunal is not an appeal forum for the LPC decisions. Further, the issues relating to the procedural notice of motion in the Magistrates’ Court cannot be considered as the Tribunal has no jurisdiction to hear appeals of the decisions of the Magistrates’ Court.
19. On 17 July 2023, the appellant applied to the Tribunal to appeal the ruling of the single member to a full panel in terms of section 148(1) of the NCA. The respondent filed its answering affidavit on 3 August 2023, to which the appellant replied on 16 August 2023. As relief, the appellant requested the Tribunal to set aside the single member's decision and grant the appellant leave to refer the complaint directly to the Tribunal.
20. Therefore, this ruling deals with the appeal against the decision of the single member to refuse to grant leave to refer the complaint directly to the Tribunal. It is based on the submissions made by the parties in the pleadings submitted in terms of rule 26 and the oral submissions made during the hearing held on 2 October 2023, as summarised in this ruling.
THE APPEAL
SUBMISSIONS BY THE APPELLANT
21. In her written and oral submissions, the appellant gave a background of the dispute and the alleged contraventions. She submitted that the single member’s assessment and conclusions demonstrate errors in reasoning in that the single member:
21.1 Misinterpreted the inquiry before the Tribunal: The appellant did not request the Tribunal to consider the procedural aspects of her attempts to stay the proceedings for debt collection. She gave an overview of the court processes to substantiate that the prohibited conduct and unsolicited services claims were not heard by any of the courts. She also settled the invoice for the disputed unsolicited services to address the debt collection issue. As such, she was not challenging the decision of the Magistrates’ Court.
21.2 Erroneously attributed requests not made to the applicant: The appellant
requested the Tribunal to consider and adjudicate the application for leave to refer, not an appeal against the LPC’s decision. The Tribunal was required to consider the complaint afresh, with the benefit of the findings of the NCC, and decide if it deserves its attention.
21.3 Misapplied the pertinent legal principles governing the mandate of the LPC: The LPC did not consider the complaint of unsolicited services. Its mandate is limited to ensuring that the fees charged by legal practitioners are reasonable and investigating misconduct complaints against legal professionals. The authority over unsolicited services and prohibited conduct lies with the Tribunal. The Free State High Court confirmed this in alignment with the Constitutional Court judgment in Chirwa v Transnet Ltd and Others[2],
21.4 Neglected to re-evaluate the evidence relating to unsolicited services thoroughly following the provisions of the CPA and other relevant legislation to ascertain the potential viability of the matter: The Tribunal should have reassessed the matter on the evidence before it. At the minimum, the single member should have considered the prospects of success before refusing the application. The services were unsolicited in contravention of section 21, and the respondent failed to produce evidence of a request or instruction from the appellant for the services performed. Thus, she had reasonable prospects of success had the Tribunal considered the matter afresh as required. The Tribunal acted contrary to the ruling in Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others[3].
22. The appellant requested the full panel to set aside the ruling of the single member and grant her leave to refer her matter directly to the Tribunal. She emphasised that the respondent violated sections 4(5), 68(1)(b) and (d), 21(8), 51(1), and 40, acting in a manner that is unfair and unconscionable.
23. At the request of the Tribunal to provide the sequence of events, the appellant stated that the alleged unsolicited services were rendered from 5 December 2018, and she received the invoice on 29 February 2019. The NCC issued the non-referral notice on 30 September 2022. She applied for leave for direct referral of the complaint on 10 October 2022.
24. Based on the date of services rendered and the disputed invoice, the cause of action arose more than three years before the appellant applied for leave to refer the complaint to the Tribunal. The Tribunal pointed out that it may be barred by section 116(1)(a) from hearing this complaint as it is over three years.
25. The appellant stated that she believes the Prescription Act4 applies to this matter and that the three years were interrupted. The case had been with the LPC and NCC for a considerable time before she could approach the Tribunal. She was bound by section 69 to exhaust the processes provided in the CPA. She could not refer the complaint to the Tribunal without the decision of the NCC. She also stated that the alleged prohibited conduct of the respondent continued.
26. In the main application, the appellant has requested the Tribunal to award costs in her favour. In her response to the cost order requested by the respondent against her, she requested the Tribunal to consider that she is exercising her rights as allowed in the CPA and has already incurred costs in the pursuit of redress. Also, both parties are representing themselves in the case. None of the costs incurred by the respondent can be attributed to her. There is no reason for a cost order against her.
SUBMISSIONS BY THE RESPONDENT
27. The respondent provided grounds for opposing the application in its oral and written submissions. Although the respondent did not make this submission in its papers, Mr Derk van Vuuren started by referring to the question raised by the Tribunal regarding the threeyear limitation in section 116(1)(a). He submitted that the appellant’s complaint was older than three years when it was filed with the Registrar, so the Tribunal is precluded from hearing the matter. He said nothing stopped the appellant from filing her complaint in time.
28. The respondent relied on res judicata as a point in limine, asserting that the dispute raised by the appellant was resolved by the LPC, wherein an amount of R555 was taxed from the bill. LPC did not find any wrongdoing on the part of the respondent. Further, neither the Magistrates’ Court nor the High Court found that the respondent had offered unsolicited services or engaged in prohibited conduct. The respondent denied offering services prohibited in section 21(1)(e) or contravening any of the provisions of the CPA.
29. The respondent said the debt collection proceedings were not in retaliation to or as a way of penalising the appellant for lodging a dispute. The LPC process began in April 2019, whereas the debt collection processes only started in March 2020. Further, it rejected that the appellant exercised a right contemplated in section 68 as alternative dispute resolution is not a fundamental right. The respondent denied that the debt-collecting process violated section 68.
30. The respondent said the appellant had no valid grounds to appeal the ruling of the single member. The ruling correctly states that the LPC has dealt with the matter. The allegations were further ventilated in a court of law. The respondent denied that the appellant had settled the entire bill as legal costs, interest, and capital amounts were still pending. It also rejected the claim that the Tribunal should have considered the complaint afresh. It is precluded by res judicata.
31. The respondent requested the Tribunal to dismiss the application with costs on the scale of attorney-and-own-client as the appellant acted maliciously without correctly interpreting the legal provisions to frustrate the effort by the respondent to recover the amount owed legally. She acted mala fide and used these processes as a delay tactic. The appellant’s application is frivolous and vexatious. The Tribunal should order punitive costs against the applicant.
CONSIDERATION
32. The full panel must decide whether the single member made an error or misdirected herself on the law or the facts of the case. In doing so, it is permitted by rule 27(2)(a)-(b) to consider any additional documentation or representations beyond the record of the proceedings before a single member.
33. The Tribunal derives its powers and authority from its empowering legislation. Like other similar bodies, the Tribunal only has those powers granted by its constitutive statutes and empowering legislation[4]. Accordingly, when considering a consumer complaint, the Tribunal must act within the parameters set by the CPA.
34. Section 150 of the NCA empowers the Tribunal to make an appropriate order under the NCA or the CPA, declaring conduct to be prohibited, interdicting any prohibited conduct, including condoning any non-compliance with its rules and procedures on good cause shown. The question is whether the complaint falls within the parameters of the CPA.
35. Section 4(5) prohibits a supplier from engaging in conduct that goes against the purpose of the CPA, is unconscionable, misleading, or deceptive, or makes any misrepresentation about a supplier or any goods or services in ordinary dealings with a consumer. Section 21(8) prohibits a supplier from demanding or collecting payment from a consumer for unsolicited goods or services.
36. Section 40 protects consumers against the unconscionable conduct of suppliers. Section 68(1)(b) and (d) requires the supplier not to penalise a consumer or take any action to accelerate, enforce, suspend, or terminate an agreement with the consumer if a consumer has exercised or sought to uphold any right set out in the CPA. The Tribunal is satisfied that the claims made by the appellant fall within the parameters of the CPA.
37. Section 34 of the Constitution of the Republic of South Africa, 1996 (the Constitution) guarantees every person a right to have any dispute that can be resolved by application of law decided in a fair public hearing before a court or, where appropriate, another independent tribunal or forum. In Chirwa, the Constitutional Court ruled that where there is a specialised framework for resolving disputes, parties must pursue their claims primarily through such mechanisms.
38. The appellant approached the Tribunal after the LPC and NCC considered the complaint as guided by section 69. Section 75(1)(b) permits the appellant to refer a complaint to the Tribunal, with leave of the Tribunal. The direct referral is triggered only if the NCC issues a notice of non-referral. In line with the Lewis judgment, the Tribunal must consider the complaint afresh if leave is granted. The Tribunal process is separate from that of the NCC. Consequently, the Tribunal is satisfied that the appellant was correct to approach the Tribunal.
39. However, the power of the Tribunal to hear referrals of this nature is limited by section 116. Section 116 (1) states that
“A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after (a) the act or omission that is the cause of complaint (b) in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.”
40. On the facts presented, the cause of action arose on 4 December 2018 when the services were rendered. The invoice was submitted on 29 February 2019. The appellant disputed this invoice because the respondent allegedly acted without instructions from the appellant. The respondent rendered no other services after that. The NCC issued the non-refer notice on 30 September 2022. The appellant applied for leave for the direct referral of the complaint on 10 October 2022.
41. The appellant had three years to apply for leave to refer. It is immaterial whether 4 or 5 December 2018 or 29 February 2019 is used; the application is out of time. At the very least, the application should have been filed by 29 February 2022 with the Tribunal, the date of the invoice that the appellant disputed.
42. The High Court[5] has confirmed that the Tribunal can only hear complaints filed within three years and cannot interrupt or extend this time bar. The court further held that the Tribunal’s reliance on two of its decisions in which it allowed itself the discretion to deal with complaints over three years was wrong. Section 116 does not allow any discretionary element. It places an absolute bar on matters older than three years.[6]
43. The Constitutional Court in Competition Commission of South Africa v Pickfords Removals SA (Pty) Ltd[7] interpreted the 3-year time bar set in section 67(1) of the Competition Act[8] as a procedural bar capable of being condoned by the Competition Tribunal under section 58(1)(c)(ii). It held that interpreting the section as an absolute bar does not only subvert the powers of the Competition Commission but could also limit access to civil courts for claimants who wish to pursue damages arising from a prohibited practice.
44. The appellant sought redress from the NCC in time. However, the decision to non-refer was made after the three years had lapsed. Unlike in the Competition Act, the power of this Tribunal to condone[9] non-compliance is expressly limited to timelines set in its rules and procedures. It has no authority to condone non-compliance with a time bar set in the CPA.
45. The CPA also does not provide for interruption as in the Prescription Act. The provisions of the Prescription Act do not apply where an Act of Parliament sets a specified period for action to be instituted or a claim to be made[10]. The CPA has expressly set a period to bring action arising from its provisions. Therefore, it cannot be said that the processes in the LPC or the NCC interrupted the running of the period.
46. It is regrettable that the NCC issued a notice of non-referral after the complaint had lapsed. The Tribunal has not been favoured with reasons of the NCC in this regard. The Tribunal is concerned about the difficulty this presents for consumers who filed with the NCC in time with legitimate complaints. However, in the absence of an express provision by the legislature granting this Tribunal a specific power to condone a time bar in the principal legislation, its hands are tied.
47. The Tribunal considered the request for a cost order and is not convinced that it is warranted. The appellant followed the provisions of the CPA in pursuit of appropriate redress. The appellant had no legal representation against a well-established law firm. There is no evidence that the appellant has abused the processes under the CPA. There is no reason to believe that her complaint is vexatious or frivolous.
CONCLUSION
48. The Tribunal finds that the appellant’s claims fall within the parameters of the CPA, but the Tribunal is precluded by section 116(1)(a) from adjudicating the complaint.
49. Ludick is instructive in that the Tribunal will act ultra vires if it hears this matter as it was filed with the Registrar more than three years after the act that is the cause of the complaint.
ORDER
50. Accordingly, the Tribunal makes the following order:
50.1 The appeal is dismissed; and
50.2 No cost order is made.
[signed]
Ms Z Ntuli Presiding Tribunal Member
Tribunal members Adv C Sassman and Ms N Maseti concur.
[1] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, 2007 (Government Gazette No. 30225).
[2] Case no 2008 (4) SA 367 (CC)
[3] Case no 314/2020) [2021] ZASCA 91 (25 June 2021) SAFLII 4 Act 68 of 1969
[4] See De Ville J, Judicial Review of Administrative Action in South Africa, 2004, p. 91.
[5] FirstRand Bank Ltd v Ludick A 277/2019 High Court of South Africa, Gauteng Division, Pretoria, 18 June 2020 (unreported) at para [16].
[6] Mapeka v FirstRand Bank Limited (Westbank) NCT 14020/2014/141
[7] 2020 ZACC 14.
[8] Act 89 of 1998
[9] Section 150(e)
[10] Sections 11(d) and 16(2)