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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case number: NCT/118856/2018/75(1)(b)

 

In the matter between:

 

VASANTHA SINGH                                                                                                  APPLICANT

 

And

 

ASSOCIATED MOTOR HOLDINGS (PTY) LTD

trading as PINETOWN MULTI FRANCHISE

(IMPERIAL SELECT)                                                                                             RESPONDENT

 

 

Coram

 

Adv. J Simpson      - Presiding Tribunal member

 

Date of Hearing      - 24 January 2019

Date of Judgment    - 25 January 2019

RULING AND REASONS ON LEAVE TO REFER

THE PARTIES

1.         The Applicant in this matter is Vasantha Singh, an adult female, residing in Phoenix, Durban, Kwa-Zulu Natal (the “Applicant” or “Ms Singh”). At the hearing Ms Singh appeared in person and was represented by an attorney, Ms Natasha Singh.

2.         The Respondent is a car dealership with its business premises located in New Germany Pinetown, Kwa-Zulu Natal (the “Respondent” or “Imperial”). There was no appearance by the Respondent or any representative at the hearing.

 

APPLICATION TYPE

 

3.       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”).

4.       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.”

 

JURISDICTION

5.         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)”

 

6.         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).

7.        A single member of the Tribunal may hear the application in accordance with section 75(5)(b) of the CPA.

 

BACKGROUND

8.         During June 2015 Ms Singh purchased a Silver VW Polo Vivo 2014 model from Imperial. She took delivery of the vehicle on 12 July 2015. The purchase price was R121 990.00. The kilometres on the vehicle at the time of purchase was 8 225 km. Approximately two weeks later the vehicle displayed “signs of instability” according to Ms Singh. She approached Mr Kayson Naidoo, the sales manager for Imperial. He told her to take the vehicle to VW to be checked. She took the vehicle to her mechanic, who advised her to have it inspected by “AA Dekra”. She received a report from Dekra dated 7 August 2015. The report reveals an extensive list of internal and external damage to the vehicle. Scorpion Legal Protection (Scorpion) approached Imperial on her behalf on 11 August 2015. Imperial never met with her or resolved the complaint in any way.

9.         Scorpion instructed a firm of attorneys to assist Ms Singh. The attorney issued summons against Imperial but withdrew the matter after Imperial defended it. Imperial pointed out that Ms Singh had not followed the process set out in section 69 of the CPA.

10.      During September 2016 Ms Singh approached the Motor Industry Ombudsman of South Africa (MIOSA). MIOSA was unable to ellicit a response from Imperial and referred her to the National Consumer Commission (NCC) in August 2017.

11.      She lodged a complaint with the NCC during September 2017. She was unable to get a response from the NCC despite contacting them constantly. An NCC investigator told her in May 2018 that her complaint would be prescribing. Nothing further was done by the NCC until she received a Notice of non-referral from the NCC dated 3 October 2018. Quite shockingly, the notice states that the transaction arose more than three years ago and had therefore prescribed. This after the complaint had been lodged with them in September 2017 already; well within the three year period. The matter had in fact become older than three years while it was with the NCC for over 12 months.

12.      Fearing that her claim may prescribe, Ms Singh’s attorneys issued summons against Imperial on 29 May 2018 in the Ekurhuleni Magistrates court. The summons was issued simply to interrupt prescription.  

13.      Ms Singh is claiming a refund of the purchase price paid and tenders the return of the vehicle to Imperial. Ms Singh further wants the amount of R3400.00 reimbursed to her for the cost of the Dekra report.

14.      Imperial did not file an answering affidavit and did not oppose the application in any way.

15.      At the hearing Ms Singh stated that she has been unable to use the vehicle since she purchased it. It has merely been parked and never used due to it being unsafe. She purchased the vehicle in cash.

 

HEARING IN DEFAULT

16.      Ms Singh filed this current application with the Tribunal on 29 October 2018. It was served on a representative of Imperial personally on 29 October 2018. The Registrar issued a notice of filing to the parties on 30 October 2018. A notice of set down was issued to all the parties on 30 November 2018.

17.      In terms of Rule 13 of the Rules of the Tribunal^[1], Imperial had to respond to the application within 15 business days by serving an answering affidavit on the Applicant (by 19 November 2018). The Respondent however failed to do so.

 

18.      Ms Singh did not file an application for a default order in terms of Rule 25(2).

19.      The Registrar however correctly set the matter down for hearing on a default basis due to the pleadings being closed.

 

20.      Rule 13(5) provides as follows:

“Any fact or allegation in the application or referral not specifically denied or admitted in the answering affidavit, will be deemed to have been admitted”

 

21.      Therefore, in the absence of any answering affidavit filed by the Respondent, the Applicant’s application and all of the allegations contained therein are deemed to be admitted.

22.      The Tribunal is satisfied that the application was adequately served on the Respondent. The matter therefore proceeded on a default basis.

 

APPLICATION FOR LEAVE

23.     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.

24.     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”.

25.     In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd^[2] it was held 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.”

 

26.     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:

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

26.2  Whether the matter is of substantial importance to the Applicant, the Respondent or both.

 

27.     It is clear that the matter is of substantial importance to Ms Singh. She has gone to great lengths to pursue her complaint.

28.     Based on the evidence before the Tribunal the vehicle was purchased from the Respondent and within two weeks it was found to be defective. The defects were of such a serious nature as to render the car unsafe to drive. Ms Singh has a right, in terms of section 55 of the CPA, to receive goods which are safe and are of good quality. In terms of section 56 of the CPA Ms Singh has the right to demand a refund, repair or replacement of the vehicle. The defects occurred within the six month period required by section 56 of the CPA. Ms Singh is demanding a refund of the purchase price paid.

29.     The Tribunal has issued numerous judgments dealing with the interruption of prescription of complaints[3]. It appears from the evidence that Ms Singh took all the steps required of her in accordance with section 69 of the CPA. She cannot be held responsible for the period of more than 24 months that the complaint was sitting with MIOSA and the NCC. There is a reasonable prospect of a finding being made that prescription of the complaint was interrupted and that the complaint has therefore not prescribed.

 

CONCLUSION

30.    The Tribunal finds that there is a reasonable prospect of Ms Singh’s claim being proven and succeeding.

 

ORDER

31.      Accordingly, the Tribunal makes the following order –

31.1   The Applicant’s application for leave to refer is granted; and

31.2   There is no order as to costs.

 

THUS DONE IN CENTURION ON THIS 24^TH DAY OF JANUARY 2019

 

 

[signed]

Adv. J. Simpson

Presiding Tribunal Member

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