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IN THE NATIONAL CONSUMER TRIBUNAL

SITUATED IN CENTURION

 

Case Number: NCT/373686/2025/75(1)(b)

 

In the matter between:
AVRIL GERALD WITBOOI	APPLICANT
And
CDR MOTORS (PTY) LTD	FIRST RESPONDENT
TRADING AS CERES TOYOTA
NATIONAL CONSUMER COMMISSION	SECOND RESPONDENT

 

Coram:

Dr LA Potwana - Presiding Tribunal member (In chambers)

 

APPLICATION FOR LEAVE TO REFER RULING

 

THE PARTIES

 

1.                  The applicant, Avril Gerald Booi, is an adult consumer as defined in section 1 of the Consumer Protection Act 68 of 2008 (CPA).

 

2.                  The first respondent, CDR Motors (Pty) Ltd trading as Ceres Toyota, is a supplier, as defined in section 1 of the CPA.

 

3.                  The second respondent, the National Consumer Commission, is a juristic person established by section 85 of the CPA. No order is sought against the second respondent.

 

4.                  Collectively, the first and second respondents are referred to as respondents.

 

TYPE OF APPLICATION AND JURISDICTION

 

5.              The applicant seeks leave to refer his complaint to the Tribunal in terms of section 75(1)(b) of the CPA, which states that “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 the Tribunal, with leave of the Tribunal.”

 

6.              Section 27(a)(i) of the National Credit Act 34 of 2005 empowers the Tribunal to adjudicate this application.

 

ISSUE TO BE DECIDED

 

7.              The Tribunal must determine whether to grant the applicant leave to refer his complaint directly to it.

 

INTRODUCTION

 

8.              On or about 5 February 2025, the applicant filed an application for leave to refer and a condonation application with the Tribunal’s Registrar (the Registrar). The application documents were served on the respondents via email by consent. On 5 March 2025, the Registrar issued a Notice of Complete Filing for the condonation application. In terms of Rule 13(1) and (2) of the Tribunal Rules,[1] the respondents were entitled to oppose the application for condonation by delivering answering affidavits within fifteen (15) business days. However, they did not do so. On 16 April 2025, the Registrar issued the Tribunal’s ruling granting condonation. On 12 May 2025, the first respondent’s attorneys, Joubert Van Vuuren Inc., served and filed the first respondent’s answering affidavit.

 

FACTS

9.              In the prescribed form for applying for leave to refer a complaint to the Tribunal, Form TI.73(3) & 75(1)(b) & (2) CPA, the applicant alleges that the first respondent failed or refused to repair his vehicle even though his vehicle became defective within the three months warranty. He wants the first respondent to refund him the R32,000.00 he paid for the repairs.

 

10.           The applicant alleges that the first respondent repaired his vehicle on 29 October 2020. Oil leaks were fixed on 12 and 19 November 2020. After the repairs, the engine started losing oil excessively. On 10 December 2020, the first respondent confirmed that the oil level was below the low mark but refused to repair the engine.

 

11.           The first respondent raised two points in limine. The first is that the complaint is time-barred by virtue of the provisions of section 116(a) of the CPA. The second one is that the applicant referred the complaint to the Tribunal before he was granted leave to do so. The second point in limine has no merit because the applicant’s application for leave is what the Tribunal is considering in this ruling. Accordingly, this point is dismissed. I will deal with the first point below. For the reasons that will soon become apparent, it is not necessary to narrate the first respondent’s response to the applicant’s allegations.

 

THE LAW

 

12.           Section 116(a) of the CPA 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 the act or omission that is the cause of the complaint.”

 

CONSIDERATION OF THE MERITS

 

13.           Previously, the Tribunal conducted hearings for applications for leave to refer complaints directly to it publicly and with all the parties present. However, in Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others,[2] (Lewis) the Supreme Court of Appeal (SCA) held that section 141(1)(b) of the NCA does not require a formal application for referring complaints to the Tribunal. Writing the unanimous decision of the SCA, Eksteen AJA stated there is no test to be applied in deciding whether or not to grant an application to refer a complaint directly to the Tribunal. He stated that circumstances which may influence the Tribunal’s 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.”[3]

 

14.           The provisions of section 141(1)(b) of the NCA are similar to the provisions of section 75(1)(b) of the CPA. Accordingly, by extrapolation, the High Court's pronouncement in Lewis applies to the applications for leave to refer complaints to the Tribunal in terms of section 75(1)(b) of the CPA.

 

15.           In the present matter, the applicant referred his complaint more than three years after the cause of his complaint arose. In FirstRand Bank Ltd v Annet Ludick,[4] the High Court of South Africa (Gauteng Division, Pretoria) stated that complaints that occurred more than three years after the act or omission complained of could not be referred to the Tribunal. 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 that occurred more than three years after the act or omission complained of by the complainant was wrong. In the result, I find that the applicant does not enjoy prospects.

 

CONCLUSION

 

16.           The applicant’s complaint is time-barred by virtue of the provisions of section 116(a) of the CPA.

 

ORDER

17.           The Tribunal makes the following order:

 

17.1            Leave is refused.

 

17.2            There is no order as to costs.

 

Thus, done and dated 18 June 2025.

 

[signed]

 

Dr LA Potwana

Presiding Tribunal Member

 

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