SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
IN THE NATIONAL CONSUMER TRIBUNAL 
HELD IN GEORGE

Case number: NCT/94740/2017/75(1)(b)

In the matter between:

CARINE MARIANNE HENNIG						APPLICANT

and

SOUTH CAPE AUTO (PTY) LTD t/a HYUNDAI			RESPONDENT

Coram

Dr. MC Peenze - Presiding Member

Date of Hearing-12 June 2018
Date of Judgment - 25 June 2018

JUDGMENT AND REASONS

THE PARTIES
1.	The Applicant in this matter is Carine Marianne Hennig, an adult female, [….], Western Cape (the "Applicant").
2.	The Respondent is South Cape Auto (Pty) Ltd t/a Hyundai, a private company duly registered and incorporated in terms of the company laws of South Africa with its principal place of business at 17 York Street, George, Western Cape (the "Respondent").
3.	This Application for leave to refer was opposed.

THE HEARING
4.	A hearing was held on 12 June 2018 in George. The Applicant represented herself and the Respondent was represented by Mr Pieter Jacobs as legal counsel.

APPLICATION TYPE
5.	This is an application in terms of Section 75(1)(b) of the Consumer Protection Act, Act 68 of 2008, {hereinafter referred to as "the CPA").

6.	Section 75(1) of the CPA states the following -

"If the Commission 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 -
(a) ...
(b)	the Tribunal, with the leave of the Tribunal."

7.	In an application of this nature the National Consumer Tribunal {hereinafter referred to as "the Tribunal") considers whether it should grant the Applicant leave to bring a complaint to the Tribunal after the National Consumer Commission {hereinafter referred to as "the Commission") has issued a notice of non-referral in response to a complaint. If the leave is granted then the Tribunal will conduct a separate hearing and consider the merits of the complaint.

JURISDICTION
8.	Section 75(5) of the CPA states that:

"The Chairperson of the Tribunal may assign any of the following matters arising in terms of this Act to be heard by a single member of the Tribunal, in accordance with section 31(1)(a) of the National Credit Act:
(a)...
(b)	an application for leave as contemplated in subsection (1)(b)"

9.	Accordingly, the Tribunal has jurisdiction to hear this application for leave to refer a complaint to the Tribunal as contemplated under section 75(1)(b).

ISSUE TO BE DECIDED
10.	The Tribunal must decide whether or not to grant leave to the Applicant to refer this matter directly to the Tribunal. In order to arrive at such a determination, the Tribunal is required to consider, among other things, the Applicant's prospects of success, the importance of the case and whether the Tribunal can grant the relief sought.

PROCEDURAL ASPECTS
11.	The National Consumer Commission (NCC) issued a notice of non-referral in this matter on 22 September 2017. The Applicant approached the Tribunal during November 2017 with her application using Form Tlr30A, Form Tl. 73(3) & 75(1)(b) & (2) CPA together with supporting documents and proof of service.
12.	Due to the late filing of the application, the Tribunal considered a condonation application, which was subsequently granted on 26 February 2018.
13.	The Respondent filed its Answering Affidavit on 11 April 2018 and the Applicant filed her Replying Affidavit on 26 April 2018. The Registrar set the matter down for hearing on 12 June 2018 on an opposed basis; before a single member of the Tribunal in accordance with section 75(5){b) of the CPA.
14.	This judgement follows after consideration of all papers filed and oral evidence provided during the hearing of 12 June 2018.

BACKGROUND
15.	During January 2016, the Applicant purchased a motor vehicle from the Respondent, a 2009 BMW X6, for the amount of R378 853 (three hundred and seventy eight thousand, eight hundred and fifty three Rand). The vehicle was bought second-hand and according to the Applicant, the deal was done in good faith and with the assurance from the dealer that the vehicle was roadworthy, accident free, and in perfect running order with a FSH and an Extended Warranty.
16.	For the sake of completeness, the Tribunal decided to hear the parties on the merits of the case in this opposed application for leave to refer. The merit consideration was merely and strictly for purposes of determining the prospects of success on the part of the Applicant.
17.	According to the Applicant, the vehicle presented problems soon after purchase, including problems with the radio console and battery power saving system. She also experienced a "low oil" warning light alert and later the "fuel combustion" warning light also appeared.
18.	The Applicant did not present the vehicle for repair to the Respondent at any time, but advised the Respondent that she was taking the vehicle for repair to Lynn Shroeder BMW George (hereafter called "BMW George"), an authorised and registered BMW dealer who assisted and repaired the vehicle at the Applicant's cost.
19.	BMW George did various diagnostic tests and effected various tests and repairs on the vehicle, including the identification of a missing "O-ring" in the engine, a valve timing malfunction, a broken timing chain and the use of non-genuine bolts.
20.	The Applicant started repairs in August 2016 and indicated that her expenses were not less than R188 00.24 to repair her vehicle over a period of more than a year, with certain repairs still to follow.
21.	The Applicant is claiming her past expenses to repair the vehicle from the Respondent.
22.	The Respondent indicated that the vehicle was not presented to the Respondent for repair within 6 months of purchase. Accordingly, the Respondent claimed that the actual claim for compensation was not supported.
23.	Since the Respondent was not afforded the opportunity to repair the vehicle within 6 months of purchase, and since a different dealer effected repairs to the vehicle, the chain of custody was broken.

APPLICATION FOR LEAVE
24.	In terms of section 75(1)(b) of the CPA, the Applicant may only refer the matter directly to the Tribunal with leave of the Tribunal.
25.	In determining whether the Applicant should be granted leave to refer the matter directly to the Tribunal, the Tribunal must consider the requirements for the granting of "leave".
26.	In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd it was held that-

“ln 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.”

27.	The Tribunal will therefore, when considering whether to grant the Applicant leave to refer the matter or not, use the same test as applied in the High Court for applications for "leave" and will consider:
i.	the Applicant's reasonable prospects of success with the referral; and
ii.	whether the matter is of substantial importance to the Applicant, the Respondent or both.

28.	It is very clear that the matter is of substantial importance to both parties. On the one hand, the Applicant was not able to have the pleasure and enjoyment of the vehicle that she bought with the understanding that it was in good running condition. On the other hand, the Respondent is expected to pay for the repairs made by another dealer without having had the opportunity to assess or consider alleged problems and conducting such repairs during the warranty period or at the time of identification of problems by the Applicant.
29.	Regarding the prospects of success, it is to be determined whether the Applicant could retrospectively claim her expenses to repair the vehicle from the Respondent.
30.	The Applicant's prospects of success lie in proving that the Tribunal could grant damages in the amount as claimed by the Applicant to be paid by the Respondent.

POINT INLIMINE
31.	The Respondent raised objections based on locus standi, indicating that the vehicle had been bought in the name of the Applicant's company, Vision Direct 195 CC, as clearly recorded in the NATIS documentation. The Respondent accordingly alleged that only the owner of the goods could bring the application for leave to refer and that this flaw in the application rendered the application to be fatally defective.
32.	The Applicant provided documentary proof of a resolution by the company, Vision Direct 195 CC, indicating that the Applicant had the authority to act on behalf of the company.
33.	According to section 4 of the CPA, any of the following persons may, in the manner provided for in the 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 person acting on his or her own behalf;
•	An authorised person acting on behalf of another person who cannot act in his or her own name;
•	A person acting as a member of, or in the interest of, a group or class of affected persons;
•	A person acting in the public interest, with leave of the Tribunal or court, as the case may be; and
•	An association acting in the interest of its members.

34.	Section 4(5) makes it clear that in any dealings with a consumer in the ordinary course of business, a person is not allowed to:
•	engage in any conduct contrary to, or calculated to frustrate or defeat the purposes and policy of the Act;
•	engage in any conduct that is unconscionable, misleading or deceptive, or that is reasonably likely to mislead or deceive; or
•	make any representation about a supplier or any goods or services, or a related matter, unless the person has reasonable grounds for believing that the representation is true.

35.	The Consumer Protection Act affects a wide range of consumers and transactions. The definition of a "consumer" includes not only the person (either a natural or juristic person) to whom goods or services are promoted or supplied, but also the actual user of the goods or the recipients or beneficiary of the services. In other words, a consumer may be a person other than the person who entered into an agreement with a supplier and paid for the goods or services. In practice this would mean that if you are given a company vehicle to drive, you will be entitled to the consumer protection measures set out in the Act, even though you are not in person the contracting party in the agreement between the car dealership and the company that procured the vehicle.
36.	With regard to juristic persons, the Act will only provide protection to small businesses (in other words, where the consumer is a juristic persons with an asset value or annual turnover below a threshold determined by the Minister). This approach is in line with the approach in the National Credit Act. The Act applies to every transaction occurring within the Republic, unless it is exempted. It also applies to the promotion and/or supply of any goods or services within the Republic, unless those goods or services could not reasonably be the subject to a transaction to which the Act applies, or those goods or services have been exempted.
37.	As the Applicant in this matter is also the "user of the goods" that forms the subject of the sale by the Respondent, and further as the owner and assigned representative of the business that bought the vehicle from the Applicant, the Applicant is found to be a consumer for purposes of this application. Locus Standi of the Applicant in this matter is therefore acknowledged in terms of the CPA.

APPLICATION OF LAW
38.	In considering the reasonable prospects of success in this matter, the Tribunal had to consider:
•	the request to the Tribunal to grant damages; and
•	the use of a different party than the Respondent to repair the vehicle in question.

39.	The CPA defines "prohibited conduct" as "an act or omission in contravention of this Act". This Act is the CPA. Section 55 of the CPA deals with a consumers right to safe, good quality goods. More specifically, subsections 55 (2) (a) and (b) respectively give to a consumer the "right to receive goods that are reasonably suitable for the purposes for which they are intended" and "are of good quality, in good working order and free of any defects".
40.	Section 56 of the CPA deals with implied warranty of quality. Subsection 56 (1) provides that where there is an agreement pertaining to the supply of goods there is an implied provision that the retailer, amongst others, warrants that the goods comply with the requirements and standards contemplated in section 55. Subsection 56 (2) gives the consumer the right to within six months after taking delivery of the goods to return the goods to the supplier, and if the requirements and standards contemplated in section 55 are not met then the supplier must without imposing a penalty and at the supplier's risk either under subsections 56 (2) (a) or (b) respectively “repair or replace the defective goods” or "refund the consumer the price the consumer paid for the goods".
41.	Subsection 56 (3) goes further and provides, amongst other things, that if the defect has not been remedied within a period of three months after the repair envisaged in subsection 56 (2) (a); then the supplier must either "replace the goods" or "refund the consumer the price paid by the consumer for the goods".
42.	The evidence taken as a whole reveals that the Applicant purchased the vehicle from the Respondent in a seemingly good condition. It is not in dispute that the Respondent failed to approach the Applicant within the warranty period but opted to take the vehicle to another dealer for repairs. As a result the value chain was broken and the particular relief provided for in the Act became irrelevant:
•	Firstly because the vehicle already got repaired and therefore the Respondent cannot repair the vehicle again;
•	Secondly, the goods cannot be replaced because it is not in the same condition as it was bought;
•	Thirdly, the consumer cannot be refunded the price paid by the consumer, since the goods are not the same anymore; and
•	Fourthly, the Applicant did not request the relief as allowed for in the NCA, but opted to request payment of damages in the amount of her past expenses to repair the vehicle, which option is not an appropriate relief to be granted by the Tribunal in terms of the NCA.
43.	The relief to be granted and the orders to be issued by the Tribunal are outlined in the National Credit Act, Act 34 of 2005 and the CPA. In particular, the payment of damages falls outside the ambit of the orders the Tribunal may issue in terms of these Acts.
44.	Following the above, the relief requested by the Applicant cannot be considered by the Tribunal, resulting in the Applicant not having any chance of success in the main application.
45.	Consequently it does not help the Applicant to argue as they did at the hearing of this application that she should be refunded the full amount she had paid to the BMW George dealer. It is not disputed that the Respondent was contacted on the 4111 of August 2016 with regard to repairs to be conducted on the vehicle, which date was more than six months after the purchase of the vehicle, and that repairs on the vehicle was done without the approval of the Respondent.

CONCLUSION
46.	The Tribunal finds that there is no reasonable chance of success in the main application, based on the following:
(i)	The claim for damages does not fall within the jurisdiction of the Tribunal; and
(ii)	The failure to provide the Respondent with an opportunity during the first six months of the purchase to rectify any alleged defect in the goods purchased or to consider refunding the goods on return by the Applicant, amounted to the forfeiting of relief in terms of section 56 of the CPA.

47.	Since the Applicant does not enjoy reasonable prospects of succeeding in her application against the Respondent, the Tribunal finds it necessary not to grant the leave to refer the matter to the Tribunal.

ORDER
48.	Accordingly, the Tribunal makes the following order-
48.1	The Applicant's application for leave to refer the matter directly to the Tribunal is refused; and
48.2	There is no order as to costs.

THUS DONE IN PRETORIA ON THIS 25TH DAY OF JUNE 2018

[signed]

Dr. MC Peenze

Presiding Member