Mathongwane v Woodgreen Ice Cream Machines cc t/a Frostee Boys (NCT/8441/2013/75(1)(b)CPA) [2013] ZANCT 53 (14 November 2013)

Mathongwane v Woodgreen Ice Cream Machines cc t/a Frostee Boys (NCT/8441/2013/75(1)(b)CPA) [2013] ZANCT 53 (14 November 2013)

The Tribunal found that the transaction and all relevant repairs occurred before the Consumer Protection Act came into force on 1 April 2011. Schedule 2 of the Act expressly excludes its application to transactions and conduct predating the effective date. The NCC's letter, although not in the prescribed form, was accepted as a notice of non-referral based on the substance-over-form principle. Applying the test for leave to refer, the Tribunal concluded that while the matter was of substantial importance to the applicant, there were no reasonable prospects of success because the Act did not apply to the facts. Accordingly, leave to refer was refused.

Citation
[2013] ZANCT 53
Parties
Applicant: Keinotswe Jonas Mathongwane; Respondent: Woodgreen Ice Cream Machines CC t/a Frostee Boys
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
14 November 2013
Case Number
NCT/8441/2013/75(1)(b)CPA
Procedural Posture
Leave to Appeal / Application for Leave to Refer Complaint Directly to Tribunal
Outcome
Application for leave to refer the matter directly to the Tribunal is dismissed.
Judges
F Sibanda
Legal Topics
Consumer Protection Act, Leave to Refer, Retrospective Application, Jurisdiction of Tribunal
Commercial and Corporate Civil Procedure Consumer Protection Act Leave to Refer Retrospective Application Jurisdiction of Tribunal

Case Brief

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Parties

Keinotswe Jonas Mathongwane

Applicant

Woodgreen Ice Cream Machines CC t/a Frostee Boys

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Refer Complaint Directly to Tribunal

Legal Issues

  1. 1 Whether the Tribunal should grant the applicant leave to refer the complaint directly to the Tribunal.
  2. 2 Whether the Consumer Protection Act applies to transactions concluded before 1 April 2011.
  3. 3 Whether the NCC's 'Lack of Jurisdiction Notification' constitutes a notice of non-referral under section 73 of the Act.

Ratio Decidendi

The Tribunal found that the transaction and all relevant repairs occurred before the Consumer Protection Act came into force on 1 April 2011. Schedule 2 of the Act expressly excludes its application to transactions and conduct predating the effective date. The NCC's letter, although not in the prescribed form, was accepted as a notice of non-referral based on the substance-over-form principle. Applying the test for leave to refer, the Tribunal concluded that while the matter was of substantial importance to the applicant, there were no reasonable prospects of success because the Act did not apply to the facts. Accordingly, leave to refer was refused.

Court Disposition

Application for leave to refer the matter directly to the Tribunal is dismissed.

Orders

  • The application for leave to refer the matter directly to the Tribunal is dismissed.