National Consumer Commission v National Auto Brokers CC trading as Omars Auto City (NCT/172929/2020/73(3)) [2021] ZANCT 10 (25 June 2021)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/172929/2020/73(3)

In the matter between:

NATIONAL

CONSUMER

COMMISSION

APPLICANT

and

NATIONAL AUTO

BROKERS CC

trading as

OMARS

AUTO

CITY

RESPONDENT

Coram:

Mr T Bailey – Presiding Tribunal member

Adv J Simpson – Tribunal member

Mr F Sibanda – Tribunal member

Date of hearing - 22 June 2021 via the Teams digital platform

Date of judgment – 25 June 2021

JUDGMENT

AND REASONS

APPLICANT

1. The Applicant is the National Consumer Commission (the applicant), a juristic person established under section 85 of the Consumer Protection Act, 2008 (the CPA).

2. Mr L Biyana, a senior legal adviser in the applicant’s legal services department, represented the applicant at the hearing of this application.

RESPONDENT

3. The Respondent is National Auto Brokers CC (the respondent), a close corporation with registration number 2000/012478/23, trading in used cars as Omars Auto City at 30 Ash Street, Noldick, Meyerton, Gauteng.

4. The respondent neither opposed nor attended the hearing of this application.

APPLICATION TYPE

5. The applicant referred this matter to the National Consumer Tribunal (the Tribunal) under section 73 (2) (b) of the CPA. That section provides that after concluding an investigation into a complaint, the applicant may refer the matter to the Tribunal.

6. The case number in this matter refers to section 73 (3) of the CPA. Nevertheless, the Tribunal is satisfied that the applicant correctly made this application under section 73 (2) (b) of the CPA.

JURISDICTION

7. Section 27 (a) (ii) of the National Credit Act, 2005 (the NCA) empowers the Tribunal or a Tribunal member acting alone to adjudicate allegations of prohibited conduct by determining whether prohibited conduct has occurred and, if so, by imposing a remedy provided for in the NCA. Section 150 of the NCA empowers the Tribunal to make an appropriate order concerning prohibited or required conduct under the NCA or the CPA. The Tribunal, therefore, has jurisdiction to hear this application.

BACKGROUND

8. On 19 December 2016, Anele Tiba (the consumer) purchased and took delivery of an Audi A3 motor vehicle (the vehicle) from the respondent. Upon arriving home that day, the consumer discovered the vehicle’s engine leaked oil. The engine also made a crackling sound.

9. The consumer took the vehicle back to the respondent, who told him that it was normal for an Audi A3 with traction to have that kind of noise. The respondent appeared to repair the oil leakage, reassured the consumer it had motor-vehicle expertise and the crackling sound should not trouble him.

10. The consumer took the vehicle to another mechanic, who told him that a worn-out clutch and a broken flywheel caused the crackling noise. In addition, the consumer found the noise irritating. The noise worsened, and the respondent refused to repair the vehicle.

11. The consumer referred the matter to his “attorneys”, Legal Wise, who failed to persuade the respondent to repair the vehicle. The respondent consistently told the consumer to use his warranty to repair the vehicle because he had purchased the warranty for that eventuality.

12. On 13 June 2017, the consumer complained to the Motor Industry Ombudsman of South Africa (the Ombud). However, the Ombud did not receive a response from the respondent and closed its file on 6 June 2018.

13. The consumer, therefore, took the vehicle to Bosch Service Centre in Lenasia, who repaired the vehicle. The warranty covered part of the repair costs, and the respondent paid the balance.

14. On 19 July 2018, the consumer complained to the applicant, which investigated the complaint. However, the respondent did not cooperate with the investigation. Consequently, on 19 November 2020, the applicant referred the matter to the Tribunal for a wide-ranging order against the respondent concerning prohibited conduct, payment of an administrative fine, and to refund the consumer the costs he incurred to repair the vehicle.

15. The Tribunal heard this application by default because the respondent did not oppose it.

PRESCRIPTION

Applicant’s submissions

16. At the beginning of the hearing, the Tribunal requested the applicant to address the preliminary question of whether the complaint had prescribed because the cause of the applicant’s complaint occurred more than three years before the applicant made this referral to the Tribunal.

17. The applicant submitted that the Tribunal had previously held that a complaint to the applicant interrupted prescription. The High Court judgment[1] that the Tribunal had no power to interrupt prescription referred to section 166 of the NCA and not section 116 of the CPA. The latter section gives the Tribunal discretion because it provides that a complaint “may” not be referred to the Tribunal within three years after the cause of the complaint. In exercising its discretion, the Tribunal must consider the purposes of the CPA and the time the complaint sat with the Ombud.

Analysis

18. The circumstances surrounding this complaint appear to fall within the CPA’s general ambit. Section 55 (2) (b) of the CPA requires a supplier to provide goods of good quality, in good working order and free of defects. The vehicle exhibited defects when the consumer took delivery of the vehicle on 19 December 2016. He returned the vehicle immediately to the respondent for repair within six months of purchasing it, as required by section 56 (2) for redress under the CPA.

19. However, section 116 of the CPA[2] restricts bringing an action before the Tribunal three years after the act or omission that is the cause of the consumer’s complaint. The cause of the complaint arose on 19 December 2016. The applicant was, therefore, bound to refer the complaint to the Tribunal by 19 December 2019. The applicant filed this application with the Tribunal on 19 November 2020, 11 months after the three-year period lapsed.

20. In matters of this nature, the Tribunal has previously considered the excessive period the complaint lay with the applicant to interrupt prescription. However, the High Court judgment binds the Tribunal.[3] It does not help the applicant to suggest that the High Court judgment only referred to section 166 of the NCA. Section 116 of the CPA and section 166 of the NCA have the exact wording. The applicant also conceded that the CPA does not give the Tribunal additional powers to override section 116.

21. Moreover, the applicant did not vigorously pursue its submission that the Tribunal should exercise its discretion by considering the purposes of the CPA and the time the complaint lay with the Ombud. Those submissions were no more than bald statements in the face of section 116’s peremptory provisions and have no merit.

CONCLUSION

22. The applicant was, therefore, bound to refer the complaint to the Tribunal by 19 December 2019. However, it did not do so, and the complaint has prescribed under section 116 of the CPA.

ORDER

23. Accordingly, the Tribunal makes the following order:

23.1. The application is dismissed; and

23.2. There is no costs order.

TREVOR BAILEY

PRESIDING

TRIBUNAL MEMBER

Tribunal members Adv J Simpson and Mr F Sibanda concur with this judgment.

[1] First Rand Bank Ltd v Ludick A 277/2019 High Court of South Africa, Gauteng Division, Pretoria, 18 June 2020 (unreported) at para [16].

[2] Section 116 of the Act concerns the limitations of bringing an action. It provides that a complaint in terms of the Act may not be referred or made to the Tribunal more than three years after the act or omission that is the cause of the complaint; or in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.

[3] Van Heerden v Billy Botha Ondernemings t/a Status Toyota Cradock NCT/155229/2020/75(1)(b).