Oosthuizen t/a Wilger Motors v Puma Energy South Africa (Pty) Ltd and Others (5280/2019) [2020] ZAFSHC 86; [2020] 3 All SA 268 (FB) (5 May 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 5280/2019

In the matter between:

GERTRUIDA MAGDALENA OOSTHUIZEN t/a

Applicant

WILGER MOTORS

and

PUMA ENERGY SOUTH AFRICA (PTY) LTD 1st Respondent

THE ARBITRATION FOOUNDATION OF 2nd Respondent

SOUTHERN AFRICA

ADV AMM MOTIMELE SC 3rd Respondent

JUDGMENT BY: MHLAMBI J,

HEARD ON: 06

FEBRUARY 2020

DELIEVERED ON: 05 MAY 2020

MHLAMBI, J

[1] The cardinal question in this application is whether the applicant, a trader in the name and style of Wilger Motors, a retail outlet which on-sells fuel delivered to it by the first respondent, a manufacturer of petroleum products, is a consumer in terms of the Consumer Protection Act and entitled to the protection contained in that Act.

[2] During November 2019, the applicant filed an urgent application in two parts: Parts A and B, seeking an order in Part A, interdicting

the first, second and third respondents from commencing and/or continuing with the arbitration and/or arbitration proceedings under

case number: AFSA PTA 01092019 between the applicant and the first respondent, pending the finalisation of the application and the relief prayed for under Part B of the Notice of Motion. Part A of the application was granted on 27 November 2019.

[3] This matter is before me for adjudication of Part B of the application in which orders are sought in the following terms:

3.1 The arbitration clause (clause 26) in the Dealer Agreement entered into between the applicant and the first respondent dated 10 November 2017, is in whole (alternatively in part) unconscionable, unjust, unreasonable and/or unfair, as envisaged in section 52 (3) of the Consumer Protection Act, 68 of 2008;

3.2 That the first respondent is, in terms of section 52(3) (b) of the Consumer Protection Act, 2008, required to (alternatively is hereby ordered to) cease any practice of directing and/or compelling the applicant to submit to arbitration in terms of the aforesaid clause 26;

3.3 That the arbitration clause (clause 26) in the aforesaid Dealer Agreement is hereby, in terms of section 3 of the Arbitration Act, 1965 (Act 42 of 165), set aside (alternatively) that the aforesaid arbitration clause shall cease to have effect with reference to any dispute between the first respondent and the applicant);

3.4 That the first respondent is ordered to pay the costs of this application, alternatively, that such respondents as opposed this application, be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved;

3.5 That such further and/or alternative relief as the Court might deem apposite, be granted to the applicant.

[4] The application is opposed.

Brief background

[5] The applicant, as purchaser, and the first respondent, as manufacturer and supplier of petroleum products, entered into a Dealer Agreement on 10 November 2019 and it was stipulated that “It is a fundamental basis of this Agreement that the Purchaser wishes to conduct the Business as a retailer of Puma Energy Petroleum Products and that the Business be identified as a Puma Energy Filling Station”.[1]Delivery of the fuel and other products would be effected at Wilger Motors, 7 Voortrekker Street, Brandfort, Free State to be on-sold by Wilger Motors to its retail clients[2]. The terms of payment were “cash before delivery or cash on delivery”[3].

[6] The dealer agreement contains two arbitration clauses. Clause 25 gives the first respondent the right to elect to handle disputes by way of litigation or by way of referral to arbitration. Clause 26, the general arbitration clause, determines that a dispute shall, on written demand by any party to the dispute, be submitted to arbitration in Pretoria in accordance with the Rules of the Arbitration Foundation (“AFSA”) of South Africa by arbitrator/s appointed by AFSA and agreed to by the parties.

[7] The applicant averred that, from the beginning of the business relationship between the parties, less income was received by the applicant as compared to the payment made to the first respondent due to the faulty calibration of the electronics of the fuel pumps. After several investigations by the first respondent in which it found “nothing wrong”, an independent investigation finally established that the fuel pumps indicated a wrong total of the fuel dispensed; for instance 40 litres of fuel whereas 50 litres had actually been dispensed, and the customer accordingly paid for only 40 litres of fuel. Despite several letters addressed to the first respondent, the problem persisted. In May 2019 the applicant put the first respondent on terms to repair the equipment.

[8] Dissatisfied with the first respondent’s apparent failure or inability to resolve the problem, the applicant cancelled the dealer agreement by formal notice on 26 June 2019, relying on section 14(2) (b) of the Consumer Protection Act of 2008 (“the CPA”) which empowers a consumer, bound by a fixed term consumer agreement, to cancel such agreement at any time by giving the supplier 20 business days’ notice in writing.

[9] The first respondent notified the applicant that it regarded the cancellation as a repudiation of the agreement, which repudiation it accepted. It elected to terminate the agreement and to proceed with arbitration.

[10] On 30 August 2019, the first respondent submitted a request for arbitration with a statement of claim for R20.6 million which it would allegedly have earned if the contract had run for 10 years as per the agreement. The applicant was provided with the said statement, and informed that AFSA accepted the duty to administer the arbitration and that a non-refundable arbitration fee of R49 822.00 plus VAT of R10 000.00 per party, was to be paid by 23 September 2019. Correspondence was exchanged between the applicant and the first respondent regarding the arbitration, the possible election or preference of an ad hoc arbitration as against a nominated arbitrator by AFSA at a prohibitively expensive rate[4], but the parties failed to reach consensus. The second respondent gave notice on 4 November 2019 of the appointment of the third respondent as an arbitrator; the first respondent having paid both the applicant’s and the first respondent’s required

administration fees. The applicant had failed to effect payment of the administration fees despite communication from the second

respondent requesting compliance therewith. A telephone pre-arbitration meeting was set for 11 November 2019.

The Parties’ contentions

[11] The applicant disputed the validity of the arbitration agreement contained in clause 26 of the dealer agreement on the basis that it was an unfair, unreasonable and /or unjust term as envisaged in section 48 of the Consumer Protection Act, 68 of 2008 read with section 52 together with Regulation 44, made in terms of that Act[5]. She averred that the import of clause 26 of the dealer agreement was that she agreed in advance to submit to any future dispute to private arbitration in Pretoria in accordance with the rules of the second respondent. Those rules were not attached to the dealer agreement when it was signed. They were, in effect, incorporated by reference without her having seen them before. The costs implications were also not brought to her attention[6]. She was therefore subjected to terms presumed to be unfair under the CPA and its regulations[7].

[12] Mr Benade, on behalf of the applicant, submitted that the main issues for decision were:

12.1 Whether the Consumer Protection Act, 68 of 2008, (the CPA), was applicable to the applicant and the dealer agreement; and thus protected the applicant;

12.2 Whether the applicant resorted within the protection afforded by Regulation 44 of the Consumer Protection Act Regulations;

12.3 Whether clause 29 of the dealer agreement excluded the operation of the Consumer Protection Act between the parties.

[13] In essence, his argument was whether “the applicant, as a small sole proprietor in Brandfort, would be afforded the protection of the Consumer Protection Act so that it would not be subjected to expensive arbitration proceedings in Pretoria (but would be able to litigate the dispute in this court in Bloemfontein)[8]”.

[14] It was contended on behalf of the first respondent that:

14.1 The contractual relationship which existed between the applicant and the first respondent was a commercial business relationship and not a supplier/individual consumer relationship[9]. The applicant could only purchase petroleum products from the first respondent as a retailer to be able to on-sell such products to consumers[10];

14.2 The terminated dealer agreement between the applicant and the first respondent was not a consumer agreement as contemplated by the CPA;

14.3 Regulation 44 of CPA was not applicable to the applicant and first respondent as that regulation contemplates consumers who acquire goods or services for personal/private use unrelated to their profession or business in order to protect the vulnerable individual consumers in their day-to-day transactions with suppliers for household goods which are usually acquired by consumers for domestic use[11];

14.4 The commercial arbitration (Clause 26) in the dealer agreement is not an unfair, unreasonable or unjust contractual term as it is not a forced consumer arbitration clause contemplated by regulation 44 to the CPA but a commercial arbitration clause. Regulation 44 covered transactions to individual consumers such as cell phone contracts or contracts for the purchase of household goods. Any forced arbitration clause under those circumstances would be unconscionable and unfair, having regard to, amongst others, the low values in dispute relating to the cost of an arbitration[12].

[15] In replication[13], it was argued on behalf of the applicant that, in the judgment granted on 28 November 2019 relating to Part A of the notice of motion, the court determined, for purposes of these proceedings, that the applicant is a consumer as envisaged by the CPA[14]. That aspect was therefore res judicata and dispositive of the dispute between the parties on this point. The mere fact that both parties’ operations were within the ambit of the petroleum industry, did not render the provisions of the CPA inapplicable to either the applicant or the business relationship between the applicant and the first respondent. The first respondent wished to interpret the applicant out of the CPA by its insistence that the applicant was a retailer of petroleum products. Such an interpretation would require a “reading-in” to the CPA[15].

Res Judicata

[16] Before dealing with the main issues, I shall deal with the aspect of res judicata as raised by the applicant in his papers and oral argument. The passages relied on by the applicant and reflected in the judgment on the interim relief (Part A), read as follows:

“[27] An interlocutory interdict depends on whether the Court is satisfied that the Applicant has a prima facie right, established on a balance of probabilities, which is being infringed or is under threat of infringement.

[28] There is nothing in the CPA that excludes the Applicant from the protection of the CPA against agreements that are unfair, unjust, and unreasonable. A consumer is defined as a person to whom any goods or services are marketed, and the petroleum industry and therefore petroleum products have not been exempted by s 5(3) of the CPA.

[29] The submission that the Applicant is not a consumer because she is a retailer does not carry any water either. A franchisee, which is always a retailer, for instance, is specifically included in the definition of a consumer.

[30] I am therefore satisfied that the Applicant is a consumer and as such has a right to the protection of the CPA which limits the length of fixed term contracts to 24 months, gives a right to cancel, and which in s 48 determines that a supplier must not supply or enter into an agreement to supply any goods or services on terms that are unfair, unreasonable or unjust. It also in s 48(1) (c) determines that a supplier, such as First Respondent, must not require a customer to waive any rights or to waive any liability of the supplier on terms which are unfair, unreasonable or unjust.”

[17] In response, the first applicant contended that the Judge’s remarks on whether or not the applicant was a consumer, were confined to the determination as to whether or not to grant the interim interdict. Relying on National Gambling Board vs. Premier Kwazulu-Natal and Others[16]; See also Cipla Agrimed (Pty) ltd v Merck Sharp Dohme Corporation and others [17], it was submitted that an interim interdict did not involve a final determination of these rights and did not affect their final determination. The judgment merely established that the applicant had a prima facie right. The issue of the applicant being a consumer for purposes of the CPA was therefore live and not res judicata as alleged by the applicant. I agree. The learned Judge[18] pointed out and referred to authorities[19] that, in essence, an application for an interim interdict is to be decided on the applicant’s version.

Whether the Consumer Protection Act, 2008 was applicable to the applicant and the dealer agreement; and thus protected the applicant.

[18] A consumer is defined in section 1 of the Act as a person to whom goods and services are marketed in the ordinary cause of a supplier’s business or who has entered into a transaction with a supplier in the ordinary cause of a supplier’s business. A person who is a user of goods or a recipient or beneficiary of the particular service irrespective of whether that person was a party to a transaction concerning the supply of the goods or services. The recipient of a gift from a consumer would also be considered a consumer in terms of the Act. The important features to note are that there must be a transaction to which a consumer is a party, or the goods are used by another person consequent on that transaction[20]. (my emphasis).

[19] The CPA defines a retailer as a person who, with respect to any particular goods and in the ordinary cause of business, supplies

those goods to a consumer. A supply chain is defined as the collectivity of suppliers who directly or indirectly contribute in

turn to the ultimate supply of those goods or services to a consumer, whether as a producer, importer, distributor or retailer of goods or as a service provider. It is evident from the definition of a supplier in the Act that a supplier means a person who markets any goods or services; goods being anything marketed for human consumption. To market means in terms of the Act, to promote or supply any goods or services. A consumer agreement means an agreement between a supplier and a consumer other than a franchise agreement.

[20] The first respondent’s argument is that the applicant’s business is a retail outlet and, as a retailer of goods, she is not a consumer but forms part of the supply chain. The applicant is a licenced retailer of petroleum products in terms of the Petroleum Products Act, 120 of 1977 and the dealer agreement defines the contractual relationship between the applicant and the first respondent, indicating that she wished to conduct the business of a retailer of Puma Energy Petroleum products. As a retailer of petroleum products, she could not be deemed to be a consumer of such products, but formed part of the supply chain of the fuel products. The Consumer Protection Act is meant to protect vulnerable and unsophisticated customers in respect of their purchase of goods from, amongst others, retailers such as the applicant.

[21] Applicant’s counsel argued that nothing in the CPA supported the first respondent’s construction that the dealer agreement was not a consumer agreement and that the applicant was not a consumer. The fact that the applicant was a retailer under the Petroleum Products Act, 1977 and the dealer agreement was of a long term duration (though the period was assailable in terms of the CPA), did not affect the applicant’s position as a consumer under the CPA. He argued that, in terms of the wording of the CPA, especially the definition of consumer as referred to in paragraphs (a) and (b) of the definition of consumer in the Act, the applicant “resorted solidly” within the four corners of the statute[21]. Furthermore, the fact that a franchisee, who in practice and in reality is a retailer, is specifically incorporated in the definition

of a consumer, clearly points thereto that a retailer and even a large business that on sells products to the public and or other

consumers, is a consumer for purposes of the CPA[22].

[22] He argued further that there was no provision in the CPA or Petroleum Products Act that determined that the applicant was excluded from the provisions and/or protection of the CPA. To the contrary, the definition of supply (for purposes of sections 48 and 52) refers to “a person who markets any goods”, the term supplier being applicable to and included the first respondent. In this regard, he referred (without expatiation) to the case of Natal Joint Municipal Pension fund vs. Endumeni Municipality[23].

[23] In my view, the arguments of the applicant’s counsel in relation to the concept and definition of a consumer, are but an incomplete journey in traversing the definition and meaning of a consumer in terms of the Act. His interpretation begins with, and ends with, a selective reading of certain parts of the definition of the word in section one of the Act[24], without a consideration of the preamble to that Act, other tools of the interpretation of the Act as well as the contractual relationship

that existed between the parties. If he were to be correct in adopting such an approach, it would, in my view, be reasoning along

the lines of the judgment in the court a quo[25]; an approach which was rejected on appeal in the SCA[26].

[24] The evidence shows that, vis-à-vis the first respondent, the applicant was not a consumer but a retailer as set out in the agreement. The definition of “retail” in the PPA[27] means the sale of petroleum products to an end user at a site and “retailer” shall be interpreted accordingly. The similarity between the definitions of retailer in both the PPA and the CPA is obvious. It is therefore, contrary to the applicant’s counsel’s argument, unnecessary to read into the CPA an interpretation of the meaning of retailer as such a definition already exists in that Act. The difference in meaning between the two words: consumer and retailer in the CPA is crystal clear. It is also clear that the applicant was not utilising the fuel products as a consumer but a retailer; neither was she a recipient nor a beneficiary thereof in terms of the provisions of the CPA. It is therefore incorrect, as suggested by the applicant’s counsel that the first respondent wished to interpret the applicant out of the CPA. Such an approach suggests that the definition of a retailer in the CPA should be ignored.

[25] The definition of a retailer in the CPA is very clear and puts the applicant in a particular category, clearly distinguishable from that of a consumer. It goes without saying that no two persons can both be a retailer and a consumer at the same time in terms of the CPA. The first respondent correctly pointed out that the relationship, as reflected in the dealer agreement, was a business to business agreement and not a business to consumer relationship. The consumer must be a natural person. My reading of the definition of a consumer in the Act, does not suggest otherwise save for the definition of a franchisee.

[26] In Natal Joint PF v Endumeni[28], it was stated that interpretation is the process of attributing meaning to the words used in a document or contract, having regard to the context provided by reading the particular provision in the light of the document as a whole and the circumstances attendant upon its coming into existence. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document[29]. In my view, to regard and consequently make an order that the dealer agreement is something other than a commercial agreement between the two businesses: one supplying and the other reselling the supplied merx, would be creating a contract for the parties other than the one they made. Furthermore, it cannot be correct that the applicant is a consumer in accordance with the CPA as she herself admitted in her papers that she was trading as Wilger Motors, a retail outlet which on-sold the goods at a profit to its retail clients.[30]

Whether the applicant resorted within the protection afforded by Regulation 44 of the Consumer Protection Act Regulations

[27] Regulation 44 provides that a term of a consumer agreement between a supplier operating on a for-profit basis and acting wholly or mainly for purposes related to his or her business or profession and an individual consumer or individual consumers who entered into it for

purposes wholly or mainly unrelated to his or her business or profession is presumed to be unfair if it has the purpose or effect

of a term listed in sub-regulation 3 and does not fall within the ambit of sub-regulation 4. The applicant relied on Regulation 44(3) (x) which refers to the prohibition of a term in an agreement requiring a consumer to take disputes exclusively to arbitration not covered by the Act or other legislation. The dealer agreement, it was contended on behalf of the applicant, qualified as a consumer agreement as it was not a franchise agreement entered into by the applicant for purposes wholly unrelated to her business or profession; as she was a banker for 30 years in the fulltime employment of the First Rand Bank Limited. As such, clause 26 of the dealer agreement was unjust, unreasonable or unfair in terms of section 52(3) of the CPA.

[28] It is common cause that the dealer agreement was entered into in terms of the Petroleum Products Act. Regulation 44(3)(x) of the CPA refers to “ other legislation” and in this regard section 12B of the PPA regulates the position between the applicant and the first respondent, as licenced retailer and a licensed wholesaler respectively. The section empowers the Controller of Petroleum Products to appoint an arbitrator if the parties fail to reach an agreement regarding the arbitrator.

[29] Section 48 (1) of the CPA provides that:

A supplier must not—

“(a) offer to supply, supply, or enter into an agreement to supply, any goods or services—

(i) at a price that is unfair, unreasonable or unjust; or

(ii) on terms that are unfair, unreasonable or unjust;

(b) market any goods or services, or negotiate, enter into or administer a transaction or an agreement for the supply of any goods or services, in a manner that is unfair, unreasonable or unjust; or

(c) require a consumer, or other person to whom any goods or services are supplied at the direction of the consumer—

(i) to waive any rights;

(ii) assume any obligation; or

(iii) waive any liability of the supplier, on terms that are unfair, unreasonable or unjust, or impose any such terms as a condition of entering into a transaction.”

[30] Section 52(1) of the CPA provides that:

“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).

(2) …

(3) If the court determines that a transaction or agreement was, in whole or in part, unconscionable, unjust, unreasonable or unfair, the court may—

(a) make a declaration to that effect; and

(b) make any further order the court considers just and reasonable in the circumstances, including, but not limited to, an order—

(i) to restore money or property to the consumer;

(ii) to compensate the consumer for losses or expenses relating to— (aa) the transaction or agreement; or

(bb) the proceedings of the court; and

(iii) requiring the supplier to cease any practice, or alter any practice, form or document, as required to avoid a repetition of the supplier’s conduct.

(4) …”

[31] It is clear from a perusal of these sections of the CPA that, what is envisaged therein is the existence of a supplier and consumer relationship. Sections 48-52 are contained in chapter 2, Part G of the Act, which refers to the fundamental consumer rights and prohibited conduct dealing with unfair, unjust or unreasonable contract terms. The purpose, policy and spirit of the CPA is

concerned primarily with the social and economic welfare of consumers in a market-based society, the realisation and enjoyment of consumer rights generally[31]. These sections cannot be applicable to the applicant as she is not a consumer in terms of the Act. The suggestion that she was not dealing in fuel as at the time of entering into the agreement is disingenuous as this reveals a subtle suggestion that she should be accommodated under section 3(1)(b) of the Act.[32]As a banker with vast experience who took over the business from her late husband, she cannot claim to be in the same boat as vulnerable

consumers seeking protection from unconscionable, false, misleading or deceptive conduct.[33]I am therefore satisfied that the applicant is not protected by the provisions of Regulation 44 as she is not a consumer as required by the CPA.

[32] In conclusion, I find that, in the particular circumstances which existed between the applicant and the first respondent, the

arbitration clause contained in the dealer agreement was neither unconscionable, unjust, unreasonable nor unfair. There was no

justification whatsoever for the applicant to seek refuge in the CPA as the applicant is not a consumer in terms of that Act. Neither

could she advance acceptable grounds to show that she was indeed a vulnerable consumer in terms of the CPA, nor show that there was an inconsistency between the CPA and the PPA[34]. In my view, she is not entitled to the protection provided by the CPA. She has therefore failed to prove that, in the circumstances,

she is entitled to the relief sought. The application must therefore fail. It is trite that the successful party is entitled to the costs.

[33] I therefore make the following order:

ORDER:

The application is dismissed with costs, which costs shall include costs of the employment of senior counsel.

_______________

JJ MHLAMBI, J

Counsel for Plaintiff: Adv. H Benade

Instructed by: Symington De Kok

169B Nelson Mandela Drive

Bloemfontein

Counsel for 1st Respondent: Adv. A Bava

Instructed by: C/O Noordmans

1 Eight Street

[1] Para B of the Dealer Agreement

[2] Para 5.5.1 of the Founding Affidavit

[3] Annexure “A” of the Dealer Agreement

[4] Para 6.12 of the Founding Affidavit

[5] Para 7.3 of the Founding Affidavit

[6] Para 7.9 of the Founding Affidavit

[7] Para 7.15 of the founding affidavit

[8]Paragraph 1.3 of the Applicant’s Heads of Argument.

[9] Para 9.1 of the first respondent’s answering affidavit to Part B of the application

[10] Para 12 of the first respondent’s answering affidavit to Part B of the application

[11] Para 30.4 of the first respondent’s answering affidavit to Part B

[12] Paras 28 and 30.5 of the first respondent’s answering affidavit to Part B

[13] Para 3.2: Replying Affidavit: Part B

[14] Paras 27-30 of the said judgment [15] Para 10.4 of the Replying Affidavit-Part B; Applicant’s heads of argument para 5.5

[14] Paras 27-30 of the said judgment

[15] Para 10.4 of the Replying Affidavit-Part B; Applicant’s heads of argument para 5.5

[16] [2001] ZACC 8; 2002 (2) SA 715 CC paragraph 49

[17] 2018 (6) SA 440 (SCA)

[18] In the judgment on Part A of the application

[19] Savage v Sisters of the Holy Cross 2015 (6) SA 1 (SAWCC) at9 D-H; Arendse v Van der Merwe 2016(6) SA 490 (GJ) at 494 D-E

[20] Eskom Holding Ltd vs. Halsted-Cleak 2017 (1) SA 333 (SCA) para 15

[21] Paras 5.1 and 5.2: Applicant’s heads of argument; The definition of consumer is: ‘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 beneficiary 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 the franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e);

[21] Paras 5.1 and 5.2: Applicant’s heads of argument; The definition of consumer is:

‘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 beneficiary 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 the franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e);

[22] Paragraph 5.4 of the Applicants Heads of Argument

[23] 2012 (4) SA 593 (SCA) at 603 A-610 C.

[24] The provisions of (a) and (b) in the definition of the word “consumer” in the Act

[25] Halstead-Cleak Anthony v Eskom Holdings Limited (26360/2014) [2015] ZAGPPHC; 2016 (2) 141 SA GP

[26] Eskom Holdings Ltd v Halstead-Cleak 2017 (1) SA 333 (SCA) para 22

[27] Petroleum Products Act NO. 120 of 1977

[28] supra

[29] Para 18

[30] Para 5.5.1 of the founding affidavit

[31] Section 3 of the CPA; Lawsa: Consumer Protection Act ( Volume 9- Third Edition) paras 128,129 and 146

[32] Section 3. Purpose and policy of Act (1) The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by- (a) establishing a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient,

sustainable and responsible for the benefit of consumers generally; (b) reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers-

[32] Section 3. Purpose and policy of Act

(1) The purposes of this Act are to promote and advance the social and economic welfare of consumers in South Africa by-

(a) establishing a legal framework for the achievement and maintenance of a consumer market that is fair, accessible, efficient,

sustainable and responsible for the benefit of consumers generally;

(b) reducing and ameliorating any disadvantages experienced in accessing any supply of goods or services by consumers-

[33] As defined in sections 3(1)(d) and 40 of the Act.

[34] Transcend Residential Property Fund Ltd v Mail and Others 2018 (4) SA 515 (WCC); Eskom Holdings Ltd v Halstead-Cleak , Supra