Sidestep the logjam at the Consumer Commission

The National Consumer Commission appears to be unable to handle the volume of complaints, and it is unusual to receive a case number before two weeks have passed, and then the months roll by before any further steps are taken.

Are there any other options? Section 69 of the CPA lists several: consumer courts (these are tribunals which fall under the provincial government, and they are not at the time of writing set up in in all of the provinces), alternative dispute resolution agents, ombuds, etc. Most of these options are undesirable for various reasons:

  • consumer courts- I’m sceptical to a degree of the quality of justice which will emanate from these “courts” which are in effect tribunals set up under the provincial government. The members of the tribunal are generally a mix of lawyers, businesspeople and consumer activists.
  • alternative dispute resolution- the consumer and the supplier have to agree to ADR, as well to when, where and how the ADR is to take place, and they will have to pay the ADR service provider.
  • ombuds- I believe broadly speaking ombuds are more sympathetic to the interests of the supplier, while the Commission is more sympathetic to the interests of consumers.

There are two further options, which may well be a worthwhile alternative: a complaint directly to the National Consumer Tribunal, which has the same legal effect as a judgment of the High Court, or a claim in the civil courts.

The CPA does not clearly state when a consumer has the right to direct access to the National Consumer Tribunal. I recently noticed that the Tribunal’s rules* allow applications for leave to institute proceedings provided for in the CPA as per section 4(1)(c) or (d) or (e), which read (the entire section is quoted):

4.   Realisation of consumer rights.(1)  Any of the following persons may, in the manner provided for in this Act, approach a court, the Tribunal or the Commission alleging that a consumer’s rights in terms of this Act have been infringed, impaired or threatened, or that prohibited conduct has occurred or is occurring:

(a) A person acting on his or her own behalf;

(b) an authorised person acting on behalf of another person who cannot act in his or her own name;

(c) a person acting as a member of, or in the interest of, a group or class of affected persons;

(d) a person acting in the public interest, with leave of the Tribunal or court, as the case may be; and

(e) an association acting in the interest of its members.

It is clear, then, that in the case of

  • a class action,
  • an action in the public interest, and
  • an action by an association, application for leave to institute proceedings may be brought directly to the Tribunal.

However, there is no clear indication as to whether the Tribunal will itself hear such an action. Table 1 B of the Amended Rules for the Conduct of Matters before the Tribunal (“Rules”) sets out the applications that may be made to the Tribunal and does not list the above actions. Rule 4A, however, implies strongly that the above actions can be brought before the Tribunal as long as the Tribunal’s leave has first been granted.  

  • The Tribunal is entitled in terms of section 114(1) to provide interim relief.

When can the courts be approached directly?

  • Section 52 gives direct access to court where there is a contravention of:

section 40 (unconscionable behaviour by a supplier),
section 41 (misleading representations by supplier) or
section 48 (unfair, unreasonable or unjust price, contract terms or behaviour by a supplier) and
the CPA does not provide sufficient remedy to correct the contravention. There is no indication of whether the penalties in the CPA will be regarded by the courts as sufficient or not, but the consumer will argue that a fine imposed on a supplier, and invalidity of a supplier’s contract terms often do not compensate the consumer for damages the consumer has suffered.  

  • A consumer obtains access to court in any matter where they are the defendant in a court action instituted by the supplier. It may be worthwhile as a consumer to withhold payment and wait for the supplier to sue you, and then raise your damages claim against the supplier as a counterclaim.
  • Section 4, quoted above, appears to give any consumer direct access to the courts where their rights are infringed, impaired or threatened,  or where prohibited conduct by a supplier occurs. Please note that in terms of section 115(2)(b) if a consumer is claiming damages, the consumer must when instituting proceedings file with the registrar or clerk of the court a notice from the Tribunal certifying whether the conduct which forms the basis for the action has been found to be a prohibited or required conduct in terms of this Act and setting out the section/s of the CPA in terms of which the Tribunal made its finding. In terms of Rule 29, this can be obtained by writing to the Registrar of the Tribunal, upon which the Chair of the Tribunal issues the notice – it appears the matter will not need to first be heard by the Tribunal.
  • Where a consumer is claiming damages from a supplier, section 115 makes it clear that the civil courts have jurisdiction. Note once again the requirement of the notice from the Tribunal referred to above.

*See Schedule D which was published in Government Gazette  No. 34405 of 29th June 2011, available on the Tribunal’s website.

 

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