In the recent Supreme Court of Appeal case Motus Corporation (Pty) Ltd and Another v Wentzel (Case no 1272/2019) [2021] ZASCA 40 (13 April 2021) the judgment of the SCA proved again that Courts should be more involved in the development of SA consumer law.
A number of issues of difficulty were raised by the SCA in this judgment, but because they didn't need to be decided to arrive at a just outcome, unfortunately no binding decisions were made. Ultimately, the SCA decided the case based on how the Court was approached on application/motion proceedings when serious disputes of fact were clearly at issue between the parties. In those circumstances, cases should be based on action/summons proceedings which are capable of resolving serious disputes of fact.
One of the issues highlighted by the SCA is the now infamous Section 69 of the Consumer Protection Act 68 of 2008 ("CPA").
Section 69 has been used as a shield by suppliers to rebuff consumers' attempts at bringing litigation to Court, by requiring consumers with a complaint/grievance against a supplier to first mediate through an ombud, then complain to the National Consumer Commission, then go to the National Consumer Tribunal, and then finally only go to Court if there is still a dispute between the consumer and the supplier. This arduous and lengthy road of redress has frustrated many consumers who cannot sustain a complaint for the length of time it takes to get through all those institutions. Suppliers have the luxury of not facing any serious binding legal proceedings until many months (sometimes even years) into the lifetime of a consumer complaint.
The level of competence of various industry ombuds is of great concern to consumers, who frequently face confusing decisions from ombuds who clearly don't understand the law or sometimes the facts of a consumer complaint.
The court case cited by suppliers in support of the above lengthy approach is that of Joroy 4440 CC t/a Ubuntu Procurement v Potgieter N.O. and Another (4161/2015) [2016] ZAFSHC 10; 2016 (3) SA 465 (FB) (28 January 2016), which the SCA in Motus (supra) has cast serious doubt over its correctness.
The SCA in Motus (supra) had the following to say about using Section 69 in the way suppliers insist it should be:
"The section is couched in permissive language consistent with the consumer having a right to choose which remedy to pursue. Those in (a), (b) and (c) appear to be couched as alternatives and, as already noted, there is no clear hierarchy. Had that been the aim it would have been relatively simple to set the hierarchy out in a sequence that would have been apparent, not 'implied', and clear for the consumer to follow. Furthermore, subsec (d) does not refer to the consumer pursuing all other remedies 'in terms of this Act', but of pursuing all other remedies available in terms of national legislation. That could be a reference to legislation other than the Act, or to the remedies under both the Act and other applicable consumer legislation, such as the National Credit Act 34 of 2005. Given the purpose of the Act to protect the interests of the consumer, who will always be the person seeking redress under it, there is no apparent reason why they should be precluded from pursuing immediately what may be their most effective remedy. Nor is there any apparent reason why the dissatisfied consumer who turns to a court having jurisdiction should find themselves enmeshed in procedural niceties having no bearing on the problems that caused them to approach the court."
This paragraph is not a binding judgment of the SCA, because it was a comment about what it thought about Section 69 and not part of the reasoning of the SCA to decide the case before it.
However, it's not a useless paragraph either. It telegraphs how the SCA is likely to interpret Section 69 should that ever be necessary in future cases.
It also puts on notice suppliers who insist that consumers can't first go to Court to uphold their contractual rights (as modified by the CPA) without first having to go through an ombud, the National Consumer Commission, and National Consumer Tribunal. The CPA doesn't work like that.
The main learning from Motus (supra) is that Courts can and do play an important role in developing SA consumer law. The absence of binding Court judgments on large consumer law sections of the CPA, National Credit Act, etc are not helpful for consumers hoping to hold suppliers accountable for the enforcement of basic consumer rights.
Let's hope more brave consumers fight their cases in Court to further develop SA consumer law to the benefit of all South Africans.
Comments