Ritter v Motorcade Motorsport CC and Another (NCT/275195/2023/75(1)(b)) [2024] ZANCT 52 (21 November 2024)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/275195/2023/75(1)(b)

In the matter between: MARTHINUS LA GRANGE RITTER APPLICANT and MOTORCADE MOTORSPORT CC 1ST RESPONDENT MOTORCADE MOTORSPORT (PTY) LTD 2ND RESPONDENT

Coram:

Dr MC Peenze - Presiding Tribunal member

Mr S Hockey - Tribunal member

Mr CJ Ntsoane - Tribunal member

Date of hearing - 20 November 2024

Date of judgment - 21 November 2024

JUDGMENT AND REASONS

THE PARTIES

1. The applicant is Marthinus La Grange Ritter, a consumer as defined in section 1 of the Consumer Protection Act 68 of 2008 (the CPA). Mr Charl May, an attorney from Brink de Beer Potgieter Incorporated, represented the applicant at the hearing.

2. The first respondent is Motorcade Motorsport CC, a former close corporation registered under the company laws of South Africa, with CIPC registration number 2006/151202/23. The first respondent was deregistered on 14 July 2022.

3. The second respondent is Motorcade Motorsport (Pty) Ltd, a private company registered in terms of the Companies Act 71 of 2008, with CIPC registration number 2021/831728/07. The second respondent is a supplier, as defined in section 1 of the CPA.

4. Collectively, the first and second respondents will be referred to as the respondents.

5. At the hearing, the respondents were represented by Mr Wessel Matthee (Mr Matthee), a former member of the first respondent and the sole director of the second respondent.

TERMINOLOGY

6. A reference to a section in this judgment refers to a section of the CPA.

APPLICATION TYPE

7. This is an application in terms of section 75(1)(b), which states that if the National Consumer Commission (the NCC) 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 the Tribunal, with leave of the Tribunal.

8. The applicant alleges that the respondents have failed to perform services to the standards contemplated in section 54(1) and that he is entitled to redress against the respondents in terms of section 54(2)(b).

BACKGROUND

9. The applicant owns a 2007 Jeep Wrangler JK model (the vehicle), which used to be a 2.8 CRD. An engine conversion was done, and a Lexus 4.3 VS engine was installed. The first respondent was contracted to deliver repair services to the vehicle between 2019 and 2021. According to the applicant, the service that is the cause of the complaint occurred between 2020 and 2021.

10. The applicant referred his complaint to the Tribunal on 15 June 2023, and leave to refer was granted on 5 September 2023. Various interlocutory applications followed, and a notice of set down was issued on 20 September 2024 for a hearing on 20 November 2024.

IN LIMINE MATTER: CITATION

11. During the hearing, the Tribunal emphasised the importance of resolving in limine issues before delving into the case's merits. The Tribunal enquired about the enforceability of any order against the respondents, as it is common cause that the service agreement (the agreement) was concluded between the applicant and the first respondent, who had since been deregistered.

12. The applicant argued that he was under the impression that the first respondent was converted from a close corporation to a private company and that the first respondent’s liabilities were transferred to the second respondent. Mr Matthee clarified that the first respondent was deregistered, and the second respondent was established as a new company. Subsequently, the applicant conceded that relief could not be granted against the first respondent, as it had been deregistered before the complaint was referred to the Tribunal. The applicant also acknowledged that the second respondent was not contracted to conduct any services for the applicant.

13. The applicant argued that the applicant’s intention was always to hold Mr Matthee personally responsible for the alleged poor services. Therefore, the failure to cite Mr Matthee as a respondent was an oversight. The applicant outlined that the complaint was lodged with the NCC against the respondents and Mr Matthee. The applicant also referred to the founding affidavit, which outlined that Mr Matthee was advancing the affairs of the respondents.[1] The applicant further highlighted ongoing parallel proceedings in the Magistrates Court for the District of Belleville, where Mr Matthee is cited in his personal capacity.

14. The applicant requested an opportunity to apply for the amendment of the citation by adding Mr Matthee as a third respondent.

15. The respondents argued that Mr Matthee was never contracted in his personal capacity, and the first respondent rendered all invoices. According to the respondents, finalisation of the matter had been delayed for years and a further postponement would not be in the interest of justice.

CONSIDERATION

16. During the hearing on 20 November 2024, it was established that the relief requested cannot be granted against the respondents. Once a legal entity is deregistered, it loses its legal capacity and, with immediate effect, becomes dormant or inactive. It can no longer be litigated or be litigated against, and all the assets within the legal entity are declared bona vacantia. In this matter, it is not in dispute that the agreement was concluded between the applicant and the first respondent. It is also not disputed that the first respondent was deregistered in July 2022. The applicant complains about the failures of the first respondent in its

former capacity as a supplier. As the CPA does not make provision for instituting any action against a legal person who no longer exists, the Tribunal does not have the authority to consider such a complaint. Given further that the first respondent was deregistered

before the complaint was referred to the Tribunal, the relief as requested cannot be granted. Consequently, the application against

the first respondent must fail.

17. The applicant further conceded that the second respondent was not a contracting party to any service agreement with the applicant and that this entity never serviced his vehicle. The Tribunal cannot consider an allegation of poor services without evidence of an agreement to conduct services. Consequently, the application against the second respondent must fail.

18. The applicant consequently considered the applicant’s request to be allowed to join Mr Matthee as a third respondent in the matter.

19. The point of departure is that in terms of section 34 of the Constitution, everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing. Further, as the Tribunal is a creature of statute, the consideration of any postponement to provide the applicant with the opportunity to cite a new respondent must be approached within the constraints of the CPA and on the basis that fairness and justice must be promoted.

20. The applicant lodged an application for leave with the Tribunal on 15 June 2023. Based on the applicant’s evidence, the cause for the complaint arose between 2020 and 2021 when the vehicle was returned to the first respondent due to the vehicle not being repaired properly, with the last invoice dated 8 December 2021.

21. Regarding section 75, if the NCC 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 the Tribunal with the leave of the Tribunal.

In this matter, leave was granted only in respect of the respondents. No application was made to request leave to bring a complaint against Mr Matthee in his personal capacity, and the leave to refer ruling does not grant the applicant leave to bring a complaint against Mr Matthee.

22. The Tribunal also considered the applicant’s submission that the application before the Tribunal sufficiently presents a case of prohibited conduct against Mr Matthee. On the evidence, the Tribunal is persuaded that the applicant is confusing the Tribunal’s statutory authority to consider prohibited conduct with the civil courts’ inherent authority to consider the negligence and personal liability of a member of a close corporation. In considering the legal negligence of the controlling mind of a legal entity, the civil courts have jurisdiction to consider lifting the veil and hold the applicable natural person accountable. The Tribunal considers whether prohibited conduct occurred. To the extent that the applicant would allege prohibited conduct by Mr Matthee, an individual agreement to provide services needs to be placed in evidence. Evidence that Mr Matthee was the supplier, as defined in the CPA, is lacking in this matter.

23. It follows that citing Mr Matthee as the respondent in this matter would necessitate reserving all the application papers afresh. As the matter stands to be dismissed, it would be in the interests of justice to file a new application for leave to refer if the applicant wishes to bring a case against Mr Matthee.

CONCLUSION

24. The applicant could not prove that the first respondent is a supplier against whom the Tribunal can grant the requested relief. The applicant could also not provide evidence that the second respondent provided any services as defined in the CPA. The relief requested can, therefore, not be granted.

25. The Tribunal does not express an opinion on the sustainability of the allegations set out in the founding affidavit or whether the application discloses a cause of action in all respects.

26. The applicant may file a new application for leave to refer a complaint against Mr Matthee. This application will consider afresh the cause of the complaint against Mr Matthee and whether such complaint is time-barred as per section 116.

ORDER

27. Accordingly, the Tribunal makes the following order:

27.1 The application is dismissed, and

27.2 There is no cost order.

[signed]

Dr MC Peenze

Presiding Tribunal member

Tribunal member Mr S Hockey and Tribunal member Mr CJ Ntsoane concur.

[1] See pages 26 – 27 of the record, paras 40 – 44.