Mogotsi v Car Finance Company and Another (NCT/85798/2017/75(1)) [2018] ZANCT 18 (4 February 2018)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/85798/2017/75(1)

In the matter between:

PETER SHIMANE MOGOTSI APPLICANT

and

CAR FINANCE COMPANY RESPONDENT

GOLDEN MILE MOTORS RESPONDENT

Dr L. Best - Presiding

Date of hearing: 29 January 2018

RULING AND REASONS

THE PARTIES

1. The Applicant is Peter Shimane Mogotsi, an adult male residing in Birchleigh, Gauteng (the Applicant).

2. The respondent is stated as Car Finance Company/Golden Mile Motors (CFC). Determining who is the correct Respondent is an aspect ventilated below. Car Finance Company, has a business address 200 Val de Vie Estate, Paarl (termed the Respondent in the body of this judgment). Golden Miles Motors, trading from 521 Rachel de Beer St, Pretoria North seems to be a separate respondent (termed Second Respondent for purposes of differentiation in the body of this judgment). The Applicant cited the Respondent as a conjoined entity Car Finance Company/Golden Mile Motors (CFC).

THE HEARING

3. A hearing was held on 29 January 2018 in Centurion. The Applicant represented himself, at times assisted by an official interpreter. The Respondent was represented by Advocate Mollentze.

THE APPLICATION

4. This is an application by the Applicant for leave to refer his complaint directly to the National Consumer Tribunal (the “Tribunal”)

in terms of section 75(1)(b) of the Consumer Protection Act, 2008 (the “CPA”). The Respondent opposed the application. The Application for leave to refer the matter to the Tribunal was filed with the Tribunal on 12 July 2017.

5. Section 75 (1) of the Act states as follows:

Referral to Tribunal

“(1) If the Commission issues a notice of non-referral in response to a complaint, other than on the grounds contemplated in section116, the complainant concerned may refer the matter directly to—

(a) …;or

(b) the Tribunal, with leave of the Tribunal.

(2)…

(3) A referral to the Tribunal, whether by the Commission or by a complainant in terms of subsection (1), must be in the prescribed form.

(4) The Tribunal—

(a) must conduct a hearing into any matter referred to it under this Chapter, in accordance with the requirements of this Act, and the applicable provisions of the National Credit Act pertaining to the proceedings of the Tribunal; and

(b) may make any applicable order contemplated in this Act or in section 150 or 151 of the National Credit Act, read with the changes required by the context.

(5)…”

6. The Commission issued a notice of non-referral, dated 19 June 2017, Ref: 12/1/1/11-16/04430 stating that “the complaint does not allege any facts, which, if true, would constitute grounds for a remedy under the Consumer Protection Act, 2008”. The Commission further elaborates in the accompanying letter that “this Office does not have the jurisdiction to award compensation for damages. We advise that you appoint an attorney to lodge a civil claim with a Court Of Law for appropriate redress. We cannot pursue your matter”.

7. The Tribunal must in accordance with s75 (1) (b) determine whether to grant the Applicant leave to refer the matter to the Tribunal. The set down of the hearing held on 29 January 2018 was to determine this issue.

BACKGROUND

8. Despite the fact that this judgment does not deal with the merits of the complaint that the Applicant has against the Respondent, it is appropriate to set out a brief background to the Applicant’s complaint.

9. On or about 21 December 2012, the Applicant bought a used VW Touareg from the Second Respondent. Upon driving the vehicle away Second

Respondent’s premises, engine service, fuel and oil messages appeared on the dashboard panel. The Applicant called the Second

Respondent who advised that the dealership was closed. Further performance difficulties with the vehicle were experienced by the

Applicant. In January 2013 the Second Respondent agreed to service the vehicle, but the performance problems persisted. During February 2013, and after a long struggle, the Second Respondent agreed that the vehicle be brought for repairs. The vehicle was kept by the Second Respondent for weeks, and was eventually returned to the Applicant yet the performance problems persisted.

10. When the Second Respondent did not provide further assistance, the Applicant lodged a complaint with the National Consumer Commission

(the Commission) in August 2013, who subsequently advised the Applicant on 16 April 2014 that the Commission had referred the complaint to the Motor Industry Ombudsman of South Africa (MIOSA).

11. On 16 May 2014, MIOSA sent correspondence to the Second Respondent requesting their response to the Applicant’s complaint. On 19 June 2014, MIOSA sent correspondence to the Commission indicating that no response had been received from the Second Respondent and hence requesting the Commission to Act in terms of section 72 of the Consumer Protection Act (the Act).

12. The Applicant made numerous attempts to ascertain progress from the Commission, including having to escalate the request to the

Department of Trade and Industry, in which the Commission is located as an entity. This lengthy process of attempting to get a response resulted in Ms Thezi Mabuza of the Commission informing the Applicant on 13 June 2016 that “as the matter was referred to MIO(SA) and there has been some developments from that intervention, the NCC will take the matter as a new complaint”.

13. The Applicant received correspondence from MIOSA on 15 September 2016 stating that the Second Respondent had not made submissions to MIOSA. Despite this, “MIOSA supported the Applicant’s expectation “that the vehicle must be returned to Golden Mile Motors (the Second Respondent) at their risk and expense and the money paid for the goods must be refunded”. The Respondent (Car Finance Company) is not cited by the Applicant or MIOSA in dealing with this complaint.

14. As advised by the Commission, the Applicant duly filed a new complaint with the Commission on 9 November 2016. On the complaint form, the Applicant cites both the Respondent and Second Respondent providing their respective and different addresses.

15. The Commission issued a notice of non-referral, dated 19 June 2017, Ref: 12/1/1/11-16/04430.

16. The Applicant subsequently referred the matter to the Tribunal.

17. The Applicant is an ordinary consumer unable to afford legal representation or the services of an attorney to claim redress.

CITATION OF THE CORRECT PARTY

18. Ordinarily, in applications of this nature the Tribunal first considers whether to grant leave and then deliberates on the merits of the main application, after having heard the parties – and only if such leave is granted.

19. However, in this particular matter, before the Tribunal can properly apply its mind to the issue of leave to refer, it must ensure that the correct party is before the Tribunal. In this particular matter Car Finance Company/Golden Mile Motors (CFC) was cited as the respondent. The contact details of Car Finance Company were cited in the application and the application was only served on Car Finance Company. All further correspondence from the Tribunal regarding filing and set down notices were only sent to Car Finance Company by the Tribunal.

20. When the Applicant earlier laid complaints with the Commission and MIOSA, these were against Golden Mile Motors, the dealership from whom the Applicant purchased the vehicle. It is at the point of the second complaint to the Commission that Car Finance Company is also cited by the Applicant and contact details for both Car Finance Company and Golden Mile Motors are provided by the Applicant. In filing this leave to refer application with the Tribunal, the Applicant conjoins Car Finance Company/Golden Mile Motors (CFC) as the respondent.

21. At the hearing, the Respondent ventilated the Answering Affidavit. Specific reference was made to a signed tri-partite agreement entered into between Golden Mile Motors (“the Dealer”); PS Mogotsi (“the Purchaser”); and The Car Finance Company (“the Finance Facilitator”). The Applicant had also included a copy of this agreement in his papers.

22. The Purchaser in the tri-partite agreement is the Applicant in this leave to refer application.

23. At the hearing, the Applicant acknowledged the existence of this agreement.

24. The material terms of this agreement were, amongst others, that

24.1. The Dealer and Purchaser agreed to make use of the services of the Finance Facilitator to facilitate the financing of the vehicle for the Purchaser through a registered credit provider;

24.2. Neither the Dealer nor the Purchaser would have any claim against the Finance Facilitator arising out of any defects, whether latent, patent, title or ownership of otherwise in the vehicle, should such defects arise whether misrepresentation has been made by the Dealer to the Purchaser whether negligent, innocent, fraudulent, or otherwise. Any actions pertaining to the aforesaid will remain solely between the Dealer and the Purchaser; and

24.3. The Dealer and Purchaser jointly and severally waive any rights or any claims against the Finance Facilitator and indemnify it accordingly.

25. The tri-partite agreement is valid in law, and is clear that the Applicant has no claim against the Respondent in this matter (Car

Finance Company).

26. In the Applicant’s founding affidavit, he states that he “learnt from Wesbank (the credit provider who financed the purchase of the vehicle) that the dealer was Car Finance Company and they did not have Golden Mile Motors”. In ventilating this, the Applicant explained that Wesbank had clarified that from 2007 Wesbank have no relationship with Golden Mile Motors because they had been struck off Wesbank’s list of approved dealerships. The Applicant inferred from this that he could pursue redress from Car Finance Company.

27. The Applicant was unable, other than his say so, to provide further evidence documentary or otherwise of the comment of the Wesbank

employee as the formal and factual position of Wesbank.

28. In Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd [1995] ZASCA 53; 1995 (4) SA 790 (A) at 31, it was pointed out that “our courts should not lightly disregard a company’s separate personality but should strive to give effect to and uphold it.” Therefore there must be cogent reasons advanced as to why this fundamental principle of law should not apply. The Applicant was unable to advance any legal basis why Car Finance Company and not Golden Mile Motors should be held accountable for repairs to his vehicle. The Applicant rather relied on his own interpretation that Car Finance Company and Golden Mile Motors are a fused business entity and on this basis he believed he is correct in serving the application on Car Finance Company.

29. The Tribunal is unable to establish the veracity of Car Finance Company and Golden Mile Motors as a single or even conjoined or fused business entity as submitted by the Applicant.

30. It is of significant importance in matters such as these that the correct party is cited. More importantly, in the case where an order may be made against a party such order must be capable of being enforced against such a party.

31. For the purposes of this matter, the Tribunal is not satisfied that the correct party is before the Tribunal. It is evident that Golden Mile Motors should have been cited as the respondent in this matter, as this is the party against whom any order, should such be made, can be enforced. It is a pity that Golden Mile Motors was not served in the Application before the Tribunal and that this aspect was not picked up at assessment level by the Tribunal.

32. Accordingly, it is the finding of the Tribunal that the correct party has not been cited as a Respondent in this matter. The correct respondent is clearly not before the Tribunal against whom the Tribunal is capable of making a finding and an order capable of being enforced.

33. It was therefore not necessary, based on the reasons stated above, for the Tribunal to look at the prospects of success and the other factors which would have been pertinent to an application such as this.

ORDER

34. Accordingly, the Tribunal makes the following order:

34.1. The Applicant’s application for leave to refer the matter directly to the Tribunal is refused;

34.2. Once the correct Respondent is established, the Applicant may re-launch this application before the Tribunal.

34.3. No order is made as to costs.

DATED at PORT ELIZABETH this 4th day of February 2018.

_____________________.

Dr L. Best

Presiding Member