Phoffa v Peugeot Citroen South Africa Proprietary Limited and Others (NCT/7147/2012/75(1)(b)(P) CPA) [2013] ZANCT 46 (24 October 2013)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/7147/2012/75(1)(b)(P) CPA

DATE: 24 OCTOBER 2013

In the matter between:

PHUTI REBECCA PHOFFA.................................................................................................APPLICANT

And

PEUGEOT CITROEN SOUTH AFRICA PROPRIETARY LIMITED...............................1ST RESPONDENT

MOTOR INDUSTRY OMBUDSMAN.........................................................................2ND RESPONDENT

NATIONAL CONSUMER COMMISSION..................................................................3RD RESPONDENT

Coram:

Prof J. Maseko – Presiding Member

Adv F Manamela – Member

Mr F Sibanda – Member

Date of Hearing: 19 September 2013

JUDGMENT AND REASONS

THE APPLICANT

1. The Applicant in this matter is Phuti Rebecca Phoffa, a major female person residing at Seshego (hereinafter referred to as “the

Applicant”).

2. The Applicant represented herself at the hearing.

3. At the hearing of the 19th September 2013, the Applicant appeared in person without any representation.

THE RESPONDENTS

4. The Applicant cited three Respondents in her application.

5. The First Respondent is Peugeot Citroën South Africa (Pty) Ltd (cited by the Applicant as “Peugeot South Africa”), a company duly registered in terms of the Company Laws of the Republic of South Africa (“the First Respondent”).

6. The First Respondent opposed the application.

7. Jeannine Delport, the General Manager: Quality, to the First Respondent, deposed to the answering affidavit. She was duly authorised to do so by the First Respondent by way of a resolution annexed to the answering affidavit and marked Annexure “PCSA1.”

8. At the hearing of 19 September 2013, the First Respondent was represented by Adv. Adrian Friedman instructed by Webber Wentzel

Attorneys.

9. The Second Respondent is the Motor Industry Ombudsman of South Africa (hereinafter referred to as “the Second Respondent”).

10. The Second Respondent did not oppose the application as the application was only served upon it two weeks before the allocated

hearing date. The Second Respondent did however attend the hearing, but elected not to apply for condonation and file an answering

affidavit as no relief was sought against it. The Second Respondent also submitted at the hearing that it’s correspondence with the parties were already annexed to the Applicant’s papers and that it did not have any further submissions to make to add to the record.

11. At the hearing of 19 September 2013, the Second Respondent was represented by Messrs Kobie Krause (Deputy Ombudsman) and Johan Van Vreden (Ombudsman).

12. The Third Respondent is the National Consumer Commission, an organ of state within the public administration, but as an institution outside the public service, established in terms of Section 85 of the Consumer Protection Act, 68 of 2005 (hereinafter referred to as “the CPA” or “the Act”) (hereinafter referred to as “the Third Respondent”).

13. The Third Respondent did not oppose the application and did not appear at the hearing despite being notified of the proceedings in accordance with the provisions of Rule 18 read with Rule 31 of the Rules of the Tribunal 1 (hereinafter referred to as “the Tribunal Rules”).

APPLICATION TYPE

14. This is an application for leave to refer in terms of Section 75(1)(b) of the CPA as a result of a notice of non-referral having

been issued by the Third Respondent, in response to a complaint.

15. Section 75(1)(b) provides that such a matter may be referred to the Tribunal, with the leave of the Tribunal.

16. The present proceedings related only to the aspect of leave to refer a matter to the Tribunal as is required by Section 75(1)(b). Only after granting such leave would the Tribunal conduct a hearing into a matter referred to it in terms of such section.

THE HEARING

17. This matter was heard on 19 September 2013 at the seat of the National Consumer Tribunal in Centurion.

RELIEF SOUGHT

18. The Applicant sought relief from the Tribunal consisting of:–

18.1 Leave to refer the matter to the Tribunal in terms of Section 75(1)(b);

18.2 Directing the First Respondent to settle the balance of the finance agreement held in respect of a vehicle which was the subject of the main case;

18.3 Directing the First Respondent to retain possession of the vehicle;

18.4 Directing the First Respondent to refund the Applicant the amounts paid in respect of the finance agreement for the period from 17 October 2010 to May 2013.

BACKGROUND

19. The Applicant purchased a Peugeot 307 with engine capacity of 2.0 litre manual station wagon on 16 October 2008 (hereinafter referred to as “the vehicle”).

20. Between 17 March 2010 and 26 October 2011, the Applicant experienced certain difficulties with the vehicle. Certain repairs were conducted to the vehicle. The details of the problems with the vehicle, as experienced by the Applicant, and of the repairs that were done to the vehicle are not relevant to the current application for leave to refer.

21. The Applicant lodged certain complaints against the First Respondent. The first complaint was lodged with the Second Respondent. A second complaint was lodged with the Third Respondent during November 2011 and as a result of such complaint, the Second Respondent embarked on a process of telephonic conciliations and what appears to be an investigation into the matter.

22. On 18 January 2013 the Third Respondent issued a notice to the Applicant entitled “Lack of Jurisdiction Notification”.

The Applicant subsequently applied to the Tribunal for leave to refer the matter to it in terms of the aforesaid Section 75(1)(b) of the Act.

ISSUES TO BE DECIDED

23. The Tribunal has to decide:

23.1 Whether the Applicant has made out a case for the Tribunal to grant the Applicant leave to refer the matter directly to the Tribunal; and

23.2 Whether a basis exists on which the Tribunal may grant the remedy sought by the Applicant.

24. For purposes of this order it is only the aspect of leave to refer that has been considered. Only if, or when such relief is granted, would the Tribunal proceed to hear submissions by the parties on the merits of the matter.

25. In the papers and oral submissions that were made by the parties, the following preliminary issues were identified and the Tribunal

proceeded to deal with these issues on a preliminary basis:

25.1 The jurisdiction of the Tribunal to hear the present application for leave to refer; and

25.2 Whether or not the Act has application on this case given that the events in the matter arose before the Act came into effect.

26. At the hearing, and whilst moving that the matter be dismissed, the First Respondent alluded to a request for a cost order to follow the results of these deliberations. The Tribunal has considered this request and contrasted it against the background that the Applicant was unrepresented. This obviated the fact that she appeared unable to distinguish between frivolous claims and legitimate ones. In addition, because the matter only served once before the Tribunal at the hearing of 19 September 2013, each party will bear its costs.

LEAVE TO REFER TO THE TRIBUNAL

27. The Tribunal firstly considered the requirements for the filing of an application for leave to refer in terms of Section 75(1)(b). The Tribunal found that the application brought by the Applicant met the procedural requirements for such application in that the application was filed within the prescribed 20 business days from the date of receipt of the notice of non-referral and that it was brought in the correct form 2.

28. The Tribunal then considered the basis upon which it may grant leave to refer. The Tribunal found guidance in a previous decision of this Tribunal3 , in which the panel quoted from the decision of Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd4 , and applied the rationale underpinning the approach taken in that matter.

29. In the Chauke – matter the Tribunal held as follows:

“When determining whether the Applicant should be granted leave to refer the matter to the Tribunal, the Tribunal considered the requirements for the granting of “leave”. A similar application can be found in the High Court practice, where an applicant applies for leave to appeal a judgment. It was held in Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd5 that “in applications for leave to appeal properly brought before the appropriate court in terms of the old sec 20, read with sec 21 as it then was, the only relevant criteria were whether the applicant had reasonable prospects of success on appeal and whether or not the case was of substantial importance to the applicant or to both him and the respondent”6 This was so irrespective of whether the appeal lay to the full court or to the Appellate Division.

11.5 The Tribunal will therefore, when considering whether to grant the Applicant leave to refer or not, use the same test as applied in the High Court for applications for “leave” and will therefore consider:

11.6 The Applicant’s reasonable prospects of success with the referral; and

11.7 Whether the matter is of substantial importance to the Applicant or Respondents.”

30 In the light of the above, the Tribunal is of the view that the basis upon which leave should be granted has to be measured against the -

30.1 Reasonable prospects of success; and

30.2 Substantial importance of the matter .7

31 With regard to the reasonable prospects of success, the Tribunal is of the view that the affidavit filed by the Applicant which is required to set out the grounds for leave to refer, together with the submissions made by the Applicant at the hearing, does not constitute sufficient grounds to establish a reasonable prospect of success on the part of the Applicant. The Tribunal cannot establish such reasonable prospect when the emptiness of the document, specifically relating to the aspect of leave to refer, is considered.

32 While the Applicant had the burden to state the grounds on which it relied in seeking such leave to refer, Applicant did not produce grounds. Even at the hearing, the Tribunal tried on the record to obtain such grounds in vain.

33 In as far as the second consideration, namely the importance of the matter to the parties are concerned, the Tribunal found that, even though the matter may be of extreme importance to the Applicant, the relief sought by her is impossible and unreasonable. The Tribunal found that there was no basis in law upon which the Applicant could insist on having the balance of the finance agreement settled and to have all moneys paid in respect of the vehicle finance agreement to date refunded to her by the First Respondent.

34 Insofar as the jurisdiction of the Tribunal to the case at hand is concerned, the First Respondent argues in its Answering Affidavit and in its Heads of Argument that the transaction complained of was concluded before the general effective date of the Act, that is, 1 April 2011 and therefore the Act does not apply to it.

35 The Tribunal has on numerous occasions dealt with the question of the retrospective application of the Act. For instance, in CMH Alfa West Rand v the National Consumer Commission8 , it was argued that the Act has limited application to transactions that were concluded before 1 April 2011.

36 Schedule 2 of the Act provides that:

“(1) Except to the extent expressly set out in this item, this Act does not apply to-

(a) the marketing of any goods or services before the general effective date;

(b) any transaction concluded, or agreement entered into, before the general effective date; or

(c) any goods supplied, or services provided, to a consumer before the general effective date.”

37 Item 3 of Schedule 2 of the Act, however, contemplates a situation where the Act would apply retrospectively and states that:

“(2) The sections of this Act listed in the first column of the following table apply, to the extent indicated in the second column,

to a pre-existing agreement between a supplier and a consumer, if the pre-existing agreement –

(a) would have been subject to this Act if this Act had been in effect at the time the agreement was made; and

(b) contemplates that the parties to it will be bound for a fixed term until a date that is on or after the second anniversary of the general effective date.”

38 It is common cause that the Applicant purchased a car on 16 October 2008. The Act came into effect on 1 April 2011. The warranty on the car expired before the 2nd anniversary of the Act.

39 From the papers filed of record and from the Applicant’s oral evidence given at the hearing, it is doubtful whether and how the Applicant will be able to jump the hurdle of providing a basis for the applicability of the Act to the transaction that is the subject of the referral.

40 The Tribunal is therefore of the view that the Applicants’ application for leave to refer the matter, must be dismissed in the circumstances.

41 There is no order as to costs.

DATED THIS 24th DAY OF OCTOBER 2013

Prof J. M. Maseko

Presiding Member

Adv F Manamela (Member) and Mr F K Sibanda (Member) concurring

1For the Conduct of Matters before the National Consumer Tribunal published under GN789 in GG30225 of 28 August 2007 as amended by GenN428 in GG34405 OF 29 June 2011 (hereinafter referred to as the “Rules of the Tribunal”).

2Table 2 as amended by GenN 428 of 29 June 2011 in the Regulations of the National Consumer Tribunal

3MV Chauke v Standard Bank et al NCT/4658/2012/141(1)(P) as applied in Coertze and Another v Young NCT/7142/2012/73(3)&75(1)(b)&(2)(P)

3MV Chauke v Standard Bank et al NCT/4658/2012/141(1)(P)

as applied in Coertze and Another v Young NCT/7142/2012/73(3)&75(1)(b)&(2)(P)

4 1986 (2) SA 555 (A) at par 15.

5 1986 (2) SA 555 (A)

6Odendaal v Loggerenberg en Andere NNO (2) 1961 (1) SA 724 (0) at p 727 C; Attorney-General, Transvaal v Nokwe and Others 1962 (3) SA 803 (T), at p 807 A

7Test derived from Chauke v Standard Bank; also applied in Coertze and Another v Young NCT/7142/2012/73(3)&75(1)(b)&(2)(P)

8NCT/3710/2012/101(1) (P) CPA) [2012] ZANCT 24 (14 December 2012).