Mokhutswane v Uber South Africa (Pty) Ltd (NCT/133158/2019/148(1)) [2019] ZANCT 137 (12 August 2019)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/133158/2019/148(1)

In the matter between:

MONNAPULE SAMUEL MOKHUTSWANE APPELLANT

AND

UBER SOUTH AFRICA (PTY) LTD RESPONDENT

Coram

Ms P A Beck - Presiding Tribunal Member

Prof T Woker - Tribunal Member

Mr A Potwana - Tribunal Member

Date of Hearing - 1 August 2019

JUDGMENT AND REASONS

THE PARTIES

1. The Appellant is Monnapule Samuel Mokhutswane, an adult male (hereinafter referred to as ("the Appellant.”) The Appellant represented himself at the hearing.

2. The Appellant cites the Respondent as Uber South Africa (Pty) Ltd a private company duly registered and incorporated in terms of the company laws of the Republic of South Africa, with its principal place of business at 12 Charles Crescent, Sandton (hereinafter referred to as "the Respondent or Uber.”) The Respondent did not attend the hearing.

APPLICATION TYPE

3. This is an appeal against a decision of a single member (hereinafter referred to as "the Member") of the National Consumer Tribunal (hereinafter referred to as "the Tribunal") to a three-member panel of the Tribunal.

4. The Appellant is challenging the Member’s refusal to grant him leave to refer a matter non-referred by the National Consumer Commission (hereinafter referred to as "the Commission"), directly to the Tribunal.

5. The Appellant lodged the appeal in terms of section 148(1) of the National Credit Act, Act 34 of 2005 (hereinafter referred to as "the NCA").

6. Section 148(1) provides as follows:

"Appeals and reviews:- (1) A participant in a hearing before a single member of the Tribunal may appeal a decision by that member to a full panel of the Tribunal".

BACKGROUND TO THE MAIN APPLICATION

7. The Appellant brought an application to the Tribunal in terms of Section 75(1)(b) (hereinafter referred to as "the main application") of the Consumer Protection Act, Act 68 of 2008, (hereinafter referred to as "the CPA"). The Respondent did not oppose the main application.

8. Section 75(1) of the CPA states the following -

"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-

(a) ….

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

9. The Member had to decide whether the Tribunal should grant the Appellant leave to bring the complaint directly to the Tribunal after the Commission issued a notice of non-referral in response to the Appellant's complaint.

10. From the record it appears that on or about December 2015, the Appellant entered into an agreement with the Respondent to be a provider of transportation services. The process of entering into the agreement was via an electronic application programme. The Appellant does not have a printed or soft copy of the agreement; and there appears to be no signature process involved when the agreement was entered into between the parties.

11. The main objection of the Appellant to the agreement is the commission charged by Uber. Initially the Appellant was charged 20% commission for transportation services provided by the Appellant, to the Respondent. In 2015, the Appellant upgraded his motor vehicle listed on the Uber platform. When the new vehicle was registered on the Uber platform, Uber changed the commission structure by increasing it from 20% to 25% without any consultation with the Appellant.

12. The Appellant objected to the 5% increase in the commission structure because it was no longer commercially viable for him to be an Uber driver; it impacted on him being able to afford the instalments on his vehicle; and because he had no other means of earning an income, he could not simply cancel the contract.

13. The Appellant challenges the decision of the single Member on the following bases:

13.1 that section 4 of the CPA applies to the matter and the findings of the Member “lack in promoting the spirit of the Act and lack facts.”[1]

13.2 The Appellant admitted that he had challenges in accessing the correct citation details of the Respondent; and relied on the “powers invested in the commission of which they elect not to utilize the powers vested on them by this Act;”[2] and because

13.3 section 41 of the Act entitles the Appellant to “the right to fair, just and reasonable terms of a contract.”[3]

14. The relief the Appellant sought from the Tribunal in the leave to refer application is:

14.1 a reduction of the commission charged from 25% to 20%;

14.2 a refund of the additional 5% commission paid;

14.3 that the Tribunal determines the legal relationship between the parties; and

14.4 for the Tribunal to apply the CPA to the matter.

15. The Member found at paragraph 20 and 21 of his judgment[4] that-

Paragraph 20 :”The legal relationship does not clearly fall within any section of the CPA or even the purpose of the CPA as set out in section 3. Based on this cursory view, the legal relationship appears to be purely contractual in nature…;” and at Paragraph 21 “...the Applicant is unable to prove that the Respondent factually exists and has been correctly cited. This has

the effect of ending the application before the Tribunal.”

16. Based on the above, the Member came to the conclusion that there is no reasonable prospect of success in the main application; and refused the application for leave to refer.

ISSUE TO BE DECIDED

17. The three-member appeal panel of the Tribunal (hereinafter referred to as "the Panel") has to consider whether the decision and reasons of the Member refusing the Appellant leave to refer his complaint directly to the Tribunal can be sustained.

18. This appeal is a wide appeal. The Panel is not restricted to the record of the proceedings that served before the Member. Rule 27 of the Rules[5] provides that-

"(1) The appeal panel may refer any matter to a panel appointed by the Chairperson for reconsideration or for such action as the appeal panel may decide.

(2) The appeal panel is not restricted to the record of the proceedings before a single member ... "

19. We will now consider the issues in paragraph 15 above, together with the evidence as a whole, to determine whether this appeal should succeed or not.

THE APPLICABLE LAW AND ANALYSIS

Jurisdiction of the Tribunal

20. The starting point in a matter such as this is whether the Tribunal has jurisdiction to determine this matter.

21. It is trite law that the Tribunal is a creature of statute. As such it is empowered to only hear matters that it is specifically empowered by statute to hear. The Tribunal was established in terms of the section 26 of the NCA (as amended) and had its functions and powers extended with the enactment of the Consumer Protection Act, Act 68 of 2008 (CPA.) It derives its jurisdiction from these laws.

22. The purpose of the CPA is set out in section 3 which provides that -

“3. (1) The purposes of this Act are to promote and advance the social and economic welfare of consumers (our emphasis) in South Africa by— …”

23. Section 1 of the CPA provides the definition of a consumer and states as follows:

“consumer’’, in respect of any particular goods or services, means—

(a) a person to whom those particular goods or services are marketed in the ordinary course of the supplier’s business;

(b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the transaction is exempt from the application of this Act by section 5(2) or in terms of section 5(3);

(c) if the context so requires or permits, a user of those particular goods or a recipient or of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and

(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5 (6)(b) to (e).”

24. Having considered and interpreted the above sections, in the context of the facts, before the Tribunal, the Tribunal concludes that it does have jurisdiction to deal with the Applicant’s complaint. The Tribunal however makes no finding on whether the Appellant is a franchisee, as alluded to by the Appellant, due to the paucity of evidence before the Tribunal.

25. I now turn to the basis of the appeal and the main reasons why leave to refer was not granted to the Appellant.

The Citation of the Respondent

26. The Tribunal must determine whether the Member was correct in deciding that the Appellant did not prove that the correct Respondent is before the Tribunal.

27. The submission of the Appellant is that the agreement between the parties was concluded via a mobile electronic process; the Appellant conceded that the Appellant did not sign an agreement with Uber; and that the Appellant does not possess a copy of the agreement entered into with Uber.

28. The Appellant submitted that he unsuccessfully attempted to establish the correct citation of Uber and that in the Appellants investigations it found three possible citations for Uber i.e. Uber South Africa (Pty) Ltd; Uber Technologies South Africa (Pty) Ltd); and Uber Netherlands B.V. The Appellant relied on the investigative powers of the NCC who in the Appellants view “elect(ed) not to utilize that powers vested on them by this Act.” [6]

29. Regulation 6[7] of the Tribunal Rules provides as follows:

Notification of parties and service of application documents

(a) The Applicant must notify the persons mentioned in column g of Table 2 by serving on them the documents required under column h of that Table.

(b) The application documents filed with the Tribunal must include a proof of service for every person requiring notification.

Rule 6(b) amended by Regulation 8 of General Notice 428 in Government Gazette 34405 dated 29 June 2011)

(c) Notification and service must comply with rule 30.

30. The correct citation of the Respondent presents a substantial difficulty to the Tribunal; and from the submissions made by the Appellant, also for the Appellant. On the evidence before the Tribunal, the Tribunal is unable to confirm that Uber South Africa (Pty) Ltd exists; that the correct party is before the Tribunal; and that the correct party was served with notice of the application in accordance with Regulation 6 of the Rules for the conduct of matters before the Tribunal.

31. Accordingly, the Member was correct in finding that the Appellant did not prove that the Respondent was correctly cited by the Appellant; and that the Respondent, as cited by the Appellant, factually exists.

The nature of the dispute and the relief sought

32. The Tribunal must determine whether the Member was correct in finding that the dispute before the Tribunal is of a contractual nature; and that the Tribunal has no jurisdiction to determine the dispute.

33. The basis of the Appellants complaint is that he objects to the Respondent unilaterally changing the commission structure between the parties. The Appellant’s submission is that the Respondent increased the commission paid to the Respondent for transportation services provided by the Appellant, to consumers, by 5% from 20% to 25%.

34. The Appellant submitted that since the commission structure increase of 5% it is no longer commercially viable for the Appellant to continue as an Uber driver; and because of the increase the Appellant struggles to service the monthly instalment on the Appellant’s motor vehicle. The Appellant seeks an order from the Tribunal for a refund of the additional 5% commission charged by Uber.

35. Section 52 of the Act provides as follows:

“ Powers of court to ensure fair and just conduct, terms and conditions.

(1) If, in any proceedings before a court concerning a transaction or agreement between a supplier and consumer, a person alleges that—

(a) the supplier contravened section 40, 41 or 48; and

(b) this Act does not otherwise provide a remedy sufficient to correct the relevant prohibited conduct, unfairness, injustice or unconscionability, the court, after considering the principles, purposes and provisions of this Act, and the matters set out in subsection (2), may make an order contemplated in subsection (3).”

36. This is clearly a contractual dispute between the parties. Contractual disputes fall within the jurisdiction of the civil courts. It follows that orders the Tribunal may issue must fall within the ambit of the National Credit Act, Act 34 of 2005 and the CPA. Accordingly, the Tribunal is not empowered to deal with contractual disputes and the relief sought by the Appellant is not relief the Tribunal is capable of granting.

37. Accordingly, the Member was correct in finding that the dispute between the parties is of a contractual nature.

CONCLUSION

38. The Tribunal acknowledges the difficulties faced by the Appellant in seeking and obtaining relief based on an agreement concluded with the Respondent whilst using an electronic application process.

39. A proper investigation of an agreement concluded via an electronic application or an electronic platform is necessary and falls squarely within the investigative powers of the NCC. A report of such an investigation in this matter would have presented an opportunity for the Tribunal to set precedent and provide guidance on the interpretation and application of the CPA to this type of factual matrix.

ORDER

40. Accordingly, the Tribunal makes the following order:

40.1 The appeal is dismissed; and

40.2 There is no order as to costs.

DATED AT JOHANNESBURG ON THIS 12TH DAY OF AUGUST 2019

_______________

P A BECK

PRESIDING TRIBUNAL MEMBER

Prof T Woker and Mr A Potwana concurring

[1] Page 5 of the bundle

[2] Page 15 of the bundle

[3] Page 15 of the bundle

[4] NCT/127401/2019/75(1)(b)

[5] Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer

Tribunal, 2007 published under GN 789 in Government Gazette 302252 on 28 August 2007.

[6] Page 15 of the bundle – Applicant’s affidavit

[7] Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer

Tribunal, 2007 published under GN 789 in Government Gazette 302252 on 28 August 2007.