Levitt and Others v National Consumer Commission and Another (7708/12) [2012] ZAWCHC 93 (18 June 2012)

Levitt and Others v National Consumer Commission and Another (7708/12) [2012] ZAWCHC 93 (18 June 2012)

The court held that the National Consumer Commission and its Commissioner acted outside their statutory powers by issuing summonses to the applicants after having issued a compliance notice and made final findings on the complaint. The Commissioner was functus officio in respect of the complaint once the compliance notice was issued, and could not conduct further investigations or issue additional summonses regarding the same matter. The power to issue a summons under section 102 of the Consumer Protection Act is limited to the period during which an investigation is ongoing; once the investigation is completed, the Commissioner loses this power. Any further investigation or questioning...

Citation
[2012] ZAWCHC 93
Parties
Applicant: Rael Levitt; Applicant: Sango Ntsaluba; Applicant: Darren Bruce-Sneddon; Applicant: Auction Alliance (Pty) Ltd; Respondent: National Consumer Commission; Respondent: Commissioner Mamodupi Mohlala
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
18 June 2012
Case Number
7708/12
Procedural Posture
Review Application / Final Judgment on Review and Constitutional Challenge
Outcome
Application granted; the summonses are declared inconsistent with the Constitution and invalid, and the decision to issue them is reviewed and set aside. Costs awarded to the applicants, including costs of two counsel and the interim application.
Judges
Stelzner
Legal Topics
Consumer Protection Act, Administrative Action, Functus Officio, Ultra Vires, Review of Administrative Action, Constitutional Invalidity
Administrative Law Commercial and Corporate Consumer Protection Act Administrative Action Functus Officio Ultra Vires Review of Administrative Action Constitutional Invalidity

Case Brief

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Parties

Rael Levitt

Applicant

Sango Ntsaluba

Applicant

Darren Bruce-Sneddon

Applicant

Auction Alliance (Pty) Ltd

Applicant

National Consumer Commission

Respondent

Commissioner Mamodupi Mohlala

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Constitutional Challenge

Legal Issues

  1. 1 Whether the National Consumer Commission and its Commissioner had the power to issue summonses to the applicants after issuing a compliance notice and media statement.
  2. 2 Whether the decision to issue the summonses was ultra vires the Consumer Protection Act and unconstitutional.
  3. 3 Whether the Commissioner was functus officio after issuing the compliance notice, precluding further investigation or summonses.

Ratio Decidendi

The court held that the National Consumer Commission and its Commissioner acted outside their statutory powers by issuing summonses to the applicants after having issued a compliance notice and made final findings on the complaint. The Commissioner was functus officio in respect of the complaint once the compliance notice was issued, and could not conduct further investigations or issue additional summonses regarding the same matter. The power to issue a summons under section 102 of the Consumer Protection Act is limited to the period during which an investigation is ongoing; once the investigation is completed, the Commissioner loses this power. Any further investigation or questioning...

Court Disposition

Application granted; the summonses are declared inconsistent with the Constitution and invalid, and the decision to issue them is reviewed and set aside. Costs awarded to the applicants, including costs of two counsel and the interim application.

Orders

  • The three summonses issued in terms of section 102 of the Consumer Protection Act, 68 of 2008 directed at the first to third applicants to attend a hearing before the respondents on 4 May 2012 and served on 16 April 2012 in respect of the first applicant and on 13 April 2012 in respect of the second and third...
  • The decision of the first and/or second respondents to issue the three summonses is hereby reviewed and set aside.