Kwazulu Natal Consumer Protector and Another v Container Box Solutions (KZNCT04/2023) [2023] ZACONAF 6 (31 May 2023)
- Citation
- [2023] ZACONAF 6
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Consumer Affairs Court
- Panel
- B. Dumisa, N Cawe, P. Dabideen
- Case number
- KZNCT04/2023
More details
- Court
- Consumer Affairs Court
- Panel
- B. Dumisa, N Cawe, P. Dabideen
- Case number
- KZNCT04/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the First Applicant had made reasonable and diligent efforts to serve the summons on the Defendant using conventional methods, but these attempts were unsuccessful. The Tribunal accepted the confirmatory affidavit as evidence of these efforts. In accordance with Regulation 12(2)(d) of the KwaZulu-Natal Consumer Protection Act and guided by Rule 4(2) of the High Court Rules, the Tribunal held that substituted service is justified when normal forms of service cannot be utilized. The Tribunal therefore authorized substituted service by publication in local newspapers, email to the last known address, and, if possible, publication on the Defendant's website. The costs of publication are to be borne by the First Applicant.
Court disposition
Application for substituted service granted.
Orders
- The First Applicant is authorized to publish the summons, excluding the founding affidavit and annexures, in a local newspaper within 14 calendar days of this order.
- The First Applicant must serve a copy of the summons, founding affidavit, and annexures by email to the Defendant's last known email address within seven calendar days of this order, where possible.
- Service of the summons, excluding the founding affidavit and annexures, must be published on the Defendant's website within seven days of this order, insofar as practically possible.
- The costs of publication shall be paid by the First Applicant.
02
Material facts
Parties
Kwazulu Natal Consumer Protector
Applicant Counsel: R MoodleyBerenique Balsdon
ApplicantContainer Box Solutions
Defendant03
Procedural history
Posture
Leave to Appeal / Application for Substituted Service Before the Kwa Zulu Natal Consumer Tribunal
04
Questions and positions
Legal issues
- 01
Whether the Tribunal should grant leave for substituted service of summons on the Defendant.
- 02
Whether the requirements for substituted service under Regulation 12(2)(d) of the KwaZulu-Natal Consumer Protection Act No 4 of 2013 are met.
Party arguments
- Applicant
- The First Applicant argued that all reasonable steps to serve the summons on the Defendant had failed, including attempts by telephone, email, and at the Defendant's last known address. The Applicant submitted a confirmatory affidavit detailing these efforts and requested substituted service by publication in local newspapers, email to the last known address, and, if possible, publication on the Defendant's website. The Applicant relied on Regulation 12(2)(d) of the KwaZulu-Natal Consumer Protection Act and sought guidance from Rule 4(2) of the High Court Rules, arguing that substituted service is appropriate when conventional methods cannot be effected.
- Respondent
- The Defendant did not participate in the proceedings and no argument was submitted on its behalf.
05
Court’s reasoning
Legal principles
- 01
Rule 4(2) of the High Court Rules
Substituted service may be ordered when conventional methods of service cannot be effected and the defendant is believed to be in the Republic.
- 02
KwaZulu-Natal Consumer Protection Act No 4 of 2013, Regulation 12(2)(d)
Regulation 12(2)(d) of the KwaZulu-Natal Consumer Protection Act No 4 of 2013 permits service of summons by substituted service in a local newspaper.
- 03
KwaZulu-Natal Consumer Protection Act No 4 of 2013, Section 21(1)
Proceedings before the Tribunal must be initiated by summons served in any prescribed manner, including substituted service.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the First Applicant had made reasonable and diligent efforts to serve the summons on the Defendant using conventional methods, but these attempts were unsuccessful. The Tribunal accepted the confirmatory affidavit as evidence of these efforts. In accordance with Regulation 12(2)(d) of the KwaZulu-Natal Consumer Protection Act and guided by Rule 4(2) of the High Court Rules, the Tribunal held that substituted service is justified when normal forms of service cannot be utilized. The Tribunal therefore authorized substituted service by publication in local newspapers, email to the last known address, and, if possible, publication on the Defendant's website. The costs of publication are to be borne by the First Applicant.
Obiter and limits
- Substituted service is not defined in the Regulations as to when it should be resorted to, but guidance may be sought from the High Court Rules.
- The Tribunal must weigh the necessity of departing from prescribed methods of service based on the facts and evidence presented.
Court disposition
Application for substituted service granted.
- The First Applicant is authorized to publish the summons, excluding the founding affidavit and annexures, in a local newspaper within 14 calendar days of this order.
- The First Applicant must serve a copy of the summons, founding affidavit, and annexures by email to the Defendant's last known email address within seven calendar days of this order, where possible.
- Service of the summons, excluding the founding affidavit and annexures, must be published on the Defendant's website within seven days of this order, insofar as practically possible.
- The costs of publication shall be paid by the First Applicant.
Source and reliance status
Consumer Affairs Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Consumer Affairs Court
Judgment
IN
THE
KWA
ZULU
NATALCONSUMER
TRIBUNAL
Case Number KZNCT04/2023
In the Ex Parte Application of;
KWAZULU
NATAL CONSUMER PROTECTOR FIRST
APPLICANT
BERENIQUE
BALSDON SECOND
APPLICANT
And
CONTAINER
BOX
SOLUTIONS DEFENDANT
In an Application For Leave to Serve by
Substituted Service
Coram:
Prof B. Dumisa: Chairperson & Presiding Member
Ms N Cawe: Deputy
Chairperson
Ms P. Dabideen: Member
Date of Hearing: 16 May 2023
Date of Judgment: 31 May 2023
APPLICATION
FOR
SUBSTITUTED SERVICE:
JUDGEMENT
AND REASONS
APPLICANTS
FIRST APPLICANT
1. The First Applicant in this matter is the OFFICE OF THE KWAZULU NATAL CONSUMER PROTECTOR, established in terms of Section 5 of the Kwa Zulu Natal Consumer Protector Act 04 of 2013 (the "Act") (hereinafter referred to as "the First Applicant"), with Head Offices at 270 Jabu Ndlovu Street, Pietermaritzburg, in the Province of KwaZulu-Natal.
2. The Office of the KwaZulu-Natal Consumer Protector falls under the Department of Economic Development, Tourism and Environmental Affairs (EDTEA) in the Province of KwaZulu-Natal.
3. At the hearing, the First Applicant was represented by Mr R Moodley , the Deputy Director in the Office of the Consumer Protector KwaZulu-Natal, in the employ of the First Applicant.
4. The First Applicants Investigation Report was deposed to by Thandeka Makhathini, an Investigator within the Office of the KwaZulu-Natal Consumer Protector, at its Head Offices at 270 Jabu Ndlovu Street, Pietermaritzburg, in the Province of KwaZulu-Natal.
SECOND
APPLICANT
5. The Second Applicant in this matter is Berenique Balsdon a major female, who resides in Dundee in the Province of KwaZulu-Natal (hereinafter referred to as "the Second Applicant" or "the Consumer").
6. The Second Applicant lodged her complaint against the Respondent on the 23 February 2023.
APPLICATION
TYPE
AND
ORDER
SOUGHT
7 The First Applicant seeks leave to serve documents (relating to a consumer agreement dispute) on the Respondent ,by way of Substituted Service in terms of Regulation 12 (2) (d) of the KwaZulu-Natal Consumer Protection Act No 4 of 2013 (the Act).
7.1 The First Plaintiff sought an order in the following terms:
7.1.1 Publication of the Summons excluding the Founding Affidavit and Annexures in the Mercury Newspaper and lsolezwe newspaper within 14 calendar days of the granting of this order
7.1.2 Copy of the Summons the Founding Affidavit and Annexures by email where such email service can be effected to the last known email address supplied by the Defendant within seven calendar days from the granting of this order
7.1.3 Insofar as practically possible service of the summons excluding the founding affidavit and an Annexures) to be published on the Defendant's website within 7 (seven) days of the granting of this order to costs of the publication shall be paid by the first plaintiff three further and or alternative relief
7.2 The costs of the publication shall be paid by the First Plaintiff
7.3 Further and /or alternative relief
BACKGROUND
8 The First Applicant brought an application before the Tribunal as the Summons in this matter could not be served on the Defendant, as it was encountering difficulties in locating the whereabouts of the Defendant.
9 The First Applicant introduced into evidence a confirmatory affidavit, deposed to on 18 April 2023, by Mrs Thandeka Makhathini, Assistant Director, complaints handler in the Department of Economic Development, Tourism and Environmental Affairs. In terms of the affidavit the deponent attempted to telephone and email the Defendant to discuss the consumers complaint but was unsuccessful .It was further established by the deponent that summons could not be served at the website address as the Defendant was unknown at that address.
APPLICABLE
LAW
10 In order to establish whether the Tribunal can make an order for Substituted Service as requested by the First Applicant, one has to refer to both Section 21(1) and Regulation 12 of the Act, which both deal with proceedings before the Tribunal.
11 Section 21 reads as follows;
The proceedings before a Tribunal must-
(a) Be initiated by summons in the prescribed form which must be served on the person concerned in any manner as may be prescribed, which may include service outside the Province
Regulation 12 reads as follows;
(1) The proceedings in the Consumer Tribunal must be initiated by summons (a)completed in accordance with the form in Annexure J1;
(b) issued by the secretary of the Consumer Tribunal; and
(c) served in accordance with sub regulation (2).
(2) The service of the summons referred to in sub regulation
(1) may be-
(a)delivered by hand; (b)sent by registered mail; (c) facsimile transmission; or
(d) delivered by substituted service in a local newspaper. (Emphasis added) (3)The following shall suffice as proof of service of summons-
(a) in respect of summons served by hand, the proof of service completed by using the form in Annexure J4;
(b) in respect of service by facsimile, a confirmation of a successful transmission of the facsimile; or
(c) in respect of service by registered mail, a registered mail receipt.
(4) The respondent must, within seven days of receipt of summons-
(a) use the form in Annexure J2 to file a notice of intention to defend; or
(b) use the form in Annexure J3 to file consent to judgement.
(5) The Consumer Protector must file the summons and proof of service thereof with the secretary of the Consumer Tribunal.
APPLICATION
OF
THE
LAW
TO THE FACTS
12 The Tribunal can order Substituted Service in terms of regulation 12 (1) (d) and can determine whether it is reasonably necessary to depart from the various methods of service provided for in the Act and the Regulations.
13 Substituted Service, though provided for in the Regulations is, however, not defined as to when it should be resorted to.
14 The Tribunal has therefore, sought guidance from the High Court Act, Rules and Procedures (Act 10/2013) (emphasis added).ln Rule 4 (2) of the High Court Rules ; "Not possible to effect service in any manner aforesaid'' (Tribunal emphasis). This sub rule prescribes that Substituted Service is ordered when the defendant is believed to be in the Republic but one of the normal forms of service set out in the rules cannot be effected.
15 The First Applicant's case for Substituted Service is set out in the Confirmatory Affidavit of Mrs Thandeka Makhathini, It sets out clearly and in detail the steps taken by the Office of the Enforcement and Compliance unit of the Consumer Protector to locate the Defendant with the intention to serve documents regarding the consumer dispute. Service could not be effected in the "conventional" manner.
Findings
16 The Tribunal has considered the submissions made by the Applicant and the applicable legislation in its quest to weigh up whether Substituted Service is justified instead of the other prescribed methods of service of notices, as set out in Regulation 12 (1) of the Act and the Tribunal Regulations.
17 After considering Rule 4 (2) of the High Court Rules the Tribunal is satisfied that the applicable guideline that 'Substituted service is ordered when the defendant is believed to be in the Republic but one of the normal forms of service set out in the Rules cannot be effected". It is clear that the normal forms of service cannot be utilized and that the Tribunal is to give directions authorising some form of Substituted Service, which Rule 12 (1) (d) prescribes as publication in a local newspaper.
ORDER
18. Accordingly The Tribunal Makes The Following Order ; The First Applicant is hereby authorized and directed to
18.1 Publish the Summons excluding the Founding Affidavit and Annexures in local newspaper within an area in which the Defendant carries on business 14 calendar days of the granting of this order
18.2 Copy of the Summons the Founding Affidavit and Annexures by email where such email service can be effected to the last known email address supplied by the Defendant within seven calendar days from the granting of this order
18.3 Insofar as practically possible service of the summons excluding the founding affidavit and an Annexures) to be published on the Defendant's website within 7 (seven) days of the granting of this order
18.4 The costs of the publication shall be paid by the First Plaintiff
Ms
NOMAGCISA CAWE
Dated 31 MAY 2023
Prof B. Dumisa (Chairperson and Presiding Member) and Ms. P Dabideen (Member) concurred
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