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Rodgers v Motortown Western Province CC T/A Motorama (NCT/279189/2023/75(1)(b) CPA) [2023] ZANCT 49 (17 November 2023)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

 Case Number: NCT/279189/2023/75(1)(b) CPA

 

 

In the matter between:

 

KEVIN EDMUND RODGERS                                         APPLICANT

 

and

 

MOTORTOWN WESTERN PROVINCE CC                   RESPONDENT

T/A MOTORAMA

 

Coram:

 

Adv C Sassman                   –                    Presiding Tribunal member

 

Date of consideration (in chambers)             -        17 November 2023

Date of ruling                                                -         17 November 2023

 

 

LEAVE TO REFER - RULING AND REASONS

 

 

APPLICANT

 

1.   The applicant is Kevin Edmund Rodgers (the applicant), an adult male, defined as a consumer in section 1 of the Consumer Protection Act 68 of 2008 (the CPA).

 

RESPONDENTS

 

2.   The respondent is Motortown Western Province CC, trading as Motorama (the respondent). The respondent is defined as a supplier in terms of section 1 of the CPA.

 

TERMINOLOGY

 

3.   A reference to a section in this ruling refers to a section of the CPA unless indicated otherwise.

 

APPLICATION TYPE AND JURISDICTION

 

4.       This is an application in terms of Section 75(1)(b), which states that if the National Consumer Commission (the NCC) 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 the Tribunal, with the leave of the Tribunal.

 

5.       Section 75(5)(b) states that the Chairperson of the Tribunal may assign an application for leave as contemplated in section 75(1)(b) to be heard by a single member of the Tribunal, in accordance with section 31(1)(a) of the National Credit Act[1]. Accordingly, the Tribunal has jurisdiction to hear this application.

 

BACKGROUND

 

6.       On 8 December 2021, the applicant concluded an offer to purchase with the respondent for the purchase of a 2016 model Renault Captur motor vehicle. On 10 December 2021, the applicant paid a purchase price of R120 000.00 (one hundred and twenty thousand rand) into the respondent’s bank account[2]. On 13 December 2021, the respondent delivered the vehicle to the applicant’s home and reported that the vehicle was overheating. The respondent assured the applicant that it would pay for the repairs to the vehicle and recommended a mechanic. The applicant followed the respondent’s advice and had the vehicle repaired, but on 15 January 2022, the vehicle overheated again, and the applicant had it towed back to the mechanic for further repairs. The applicant submits that after months of going back and forth between the mechanic and the respondent, the vehicle is still not repaired, and he has incurred financial costs which the respondent refuses to reimburse. The applicant further submits that he had to seek the assistance of the South African Police Service to obtain the correct registration papers for the vehicle.

 

7.       The applicant complained to the Motor Industry Ombudsman of South Africa (MIOSA). On 21 April 2022, MIOSA indicated that it had made numerous unsuccessful attempts to acquire a response from the respondent and that there was no reasonable probability of it assisting the parties in resolving the dispute. Accordingly, it referred the applicant to the NCC for further redress. On 17 May 2022, the applicant filed a complaint with the NCC. On 20 October 2022, the NCC issued a notice of non-referral indicating that the redress sought by the applicant cannot be provided under the CPA.

 

8.       On 17 July 2023, the applicant filed an application with the Tribunal for leave to refer the matter directly to the Tribunal. Due to the application being filed out of the prescribed 20-day period after receiving the notice of non-referral, the applicant was advised to apply for condonation to condone the late filing of the application. The applicant then filed a condonation application to condone the late filing of his application for leave to refer. On 18 September 2023, the applicant was granted condonation. The respondent has not opposed this application, and it is heard on a default basis.

 

LEAVE TO REFER HEARINGS

 

9.       Previously, the Tribunal held formal hearings for leave to refer applications to the Tribunal, and all the parties would be present. In Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others[3], the court provided helpful guidance to the Tribunal in decisions regarding leave to refer applications. It held that a formal hearing for leave to refer applications was unnecessary and that there was no test to be applied. The court further held that the Tribunal’s decision to grant the applicant leave to refer the matter could not be appealed.

 

10.   The court held that the NCA provides for an expeditious, informal, and cost-effective complaints procedure and that section 141(1)(b) of the NCA confers on the Tribunal a wide, largely unfettered discretion to permit a direct referral. The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings made by the Regulator, and to decide whether the complaint deserves the Tribunal’s attention. Circumstances that may influence the Tribunal’s decision may include the prospects of the applicant’s success, the importance of the issue, the public interest to have a decision on the matter, the allocation of resources, the applicant’s interest in the relief sought, and the fact that the Regulator found that the complaint lacked sufficient merit to necessitate a hearing before the Tribunal. Although the court referred to section 141 of the NCA, the provisions of section 75 of the CPA are almost identical and can be interpreted similarly.

 

11.   As there is no test to be applied, the Tribunal will consider this matter in the general context of the circumstances submitted by the applicant.

 

CONSIDERATION

 

12.   The evidence submitted by the applicant falls within the basic parameters of a claim in terms of sections 55(2) and 56(2).

 

13.   Section 55(2) states that consumers have the right to receive goods that are reasonably suitable for their intended purposes. They have a right to goods that are of good quality and are in good working order. The goods must be free of any defects and be useable and durable for a reasonable time. The goods must also comply with any applicable standards set under the Standards Act[4].

 

14.   Section 56(2) states that within six months after the delivery of goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in section 55. The supplier must, at the direction of the consumer, either repair or replace the failed, unsafe, or defective goods or refund the consumer the price paid for the goods.

 

15.   The matter is important to the applicant, and he holds a reasonable prospect of success should he be able to prove the allegations contained in this application. The rights afforded to consumers in terms of the CPA are there to protect the consumer. An infringement of those rights could have serious financial consequences for a consumer. Therefore, it is in the interest of justice for the parties to be heard on this matter. The Tribunal will grant leave to refer the matter for the parties to be afforded an opportunity to submit legal arguments.

 

ORDER

 

16.   Accordingly, the Tribunal makes the following order:

 

16.1       The application for leave to refer is granted; and

 

16.2       There is no cost order.

 

 

[SIGNED]

Adv C Sassman

Presiding Tribunal member

 


[1] 34 of 2005.

[2] The actual purchase price was R119 995.00 (one hundred and nineteen thousand, nine hundred and ninetynine rand). See page 18 of the case record.

[3] (Case no 314/2020) [2021] ZASCA 91 (25 June 2021) SAFLII.

[4] 29 of 1993.