IN THE NATIONAL CONSUMER TRIBUNAL
HELD AT CENTURION

CASE NUMBER: NCT/137236/2019/75(1)(b)

In the matter between:

Mr S T E Hlongwane						Applicant
and
RAM WAGEN SPARES (Pty) Ltd				Respondent		

TRIBUNAL PANEL:
Presiding Tribunal member: 	Ms D Terblanche,
Tribunal member:  			Mr. T A Bailey,
Tribunal member:  			Prof K Moodaliyar

DATE OF HEARING:	21 September 2020 on Zoom
DATE OF JUDGMENT: 	16 October 2020

JUDGMENT AND REASONS

THE PARTIES
 
1.	The Applicant is Mr. S T E Hlongwane (the “Applicant”), an adult male. 

2.	The Respondent is RAM WAGEN SPARES (Pty) Ltd (the “Respondent”), registration number  K2015/230635/07, operating from Shop 11, Detroit Plaza, Pretoria Road, Kempton Park, Johannesburg. 

THE APPLICATION 

3.	This is an application under section 75(1)(b) of the Consumer Protection Act, Act 68 of 2008 (the “CPA”).

4.	Section 75(1)(b) of the CPA provides that a complainant may refer a complaint directly to the Tribunal with the leave of the Tribunal if the National Consumer Commission issued a notice of non-referral on the complaint. 

5.	The Tribunal granted the Applicant leave to refer his complaint directly to the Tribunal on 17 February 2020.

HEARING BY DEFAULT 

6.	On 30 September 2019, the Tribunal’s Registrar (Registrar) emailed the notice of filing to the parties and sent the notice of filing to the Respondent on 4 October 2019 with registered mail. 

7.	Under Rule 13(2) of the Tribunal Rules, the Respondent had 15 business days after being served with the application, to serve an answering affidavit on the Applicant. 

8.	On 19 August 2020, after the close of pleadings, the Registrar issued a Notice of Set Down for the matter to be heard on 21 September 2020, and served the notice of set-down on the parties. 

9.	On the day of the hearing, 21 September 2020, the Tribunal panel was satisfied that the Respondent was adequately notified of the date, time and venue of the proceedings, and the hearing proceeded in the absence of the Respondent in terms of Rule 24 of the Tribunal Rules. 

10.	The Tribunal is satisfied that the application was adequately served on the Respondent and proceeded with the matter on a default basis. 

THE APPLICANT’S CASE 

11.	The Applicant left his MG Rover75 2,5 V6, 2002 year model, motor car  registration number 992PACGP, with the Respondent for repairs on 2 July 2017. The Respondent undertook to finish the car's repairs within two weeks and return it to the Applicant.

12.	Over the next several months after the Applicant left his car  with the Respondent, he made numerous follow-ups on the progress of the repairs, without resolution and finalization.

13.	On 8 December 2017,  the Respondent told the Applicant to pay for the repairs and collect his car  by 11 December 2017. The Respondent's representative could not confirm to the Applicant whether the Respondent had completed the repairs. It transpired that the Respondent had not completed the repairs and was allegedly trying to source a part to complete the repairs. On 2 January 2018, the Applicant assisted the Respondent to source the part the Respondent claimed it could not find.

14.	It subsequently transpired that the Applicant's car  was no longer with the Respondent. On 12 January 2018, the Respondent told the Applicant they had taken his car for salvage and cannot access it. On the same day, 12 January 2018, the Applicant went to the South African Police to request the SAPS' assistance because the Respondent refused to release his car. 

15.	The Respondent then told the Applicant that the Applicant could get his car  if he pays for the repairs – an amount of about R 28 000,00. On 12 January 2018, the Applicant tried to pay for the repairs. The Respondent would not make the payment, telling the Applicant he first has to speak with their lawyers. The Applicant's engagement with the Respondent's lawyers did not meet success in the Applicant retrieving his car. 

16.	The Applicant tracked his car 's whereabouts down to a company called Abandonment Solutions in Johannesburg. The Respondent sold the car to Abandonment Solutions, without the knowledge and consent of the Applicant. The company allegedly purchased the Applicant's car  from the Respondent. On 13 March 2017 (sic). The Applicant visited Abandonment Solutions' premises, saw his car, and noted that the repairs had not been affected, and certain parts were missing. 

17.	As a result, the Applicant complained to the Motor Industry Ombudsman of South Africa (the "MIOSA") on 13 February 2018. On 10 September 2018, the MIOSA referred the Applicant to  the National Consumer Commission ("the NCC"), upon advice from the NCC that MIOSA should send all complaints relating to the Respondent to the NCC. The NCC non-referred the Applicant's complaint on 28 March 2018, on the basis that it could not trace the Respondent.

18.	The Applicant traced the Respondent though the Company and Intellectual Property Commission (CIPC) and the Respondent's lawyers, and filed his complaint with the Tribunal.

19.	Consumers are entitled to demand quality service in terms of the Consumer Protection Act, Act 68 of 2008 (the CPA).

20.	Section 54(1) of the CPA  provides that – 
“(1) 	When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to— 
(a)	the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services; 
(b)	the performance of the services in a manner and quality that persons are generally entitled to expect; 
(c) 	the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services; and 
(d)	the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services, 
having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services.” 

21.	The Applicant made oral submissions at the hearing based on the affidavit he filed in support of his application.

22.	Rule 13(5) of the Rules provides that –
“(5) Any fact or allegation in the application or referral not specifically denied or admitted in an answering affidavit, will be deemed to have been admitted.”

23.	In the absence of an answering affidavit by the Respondent, the Tribunal admits the Applicant’s allegations in his founding affidavit. 

24.	The Tribunal finds that having regard to the Applicant’s statements under oath in support of the application, it appears to the Tribunal that the Respondent breached his obligations to the Applicant and that the Respondent committed prohibited conduct under section 54(1)(a) to (d) of the CPA.

Relief

25.	The Tribunal now turns to the relief the Applicant seeks.

26.	The Applicant requested the Tribunal to -

26.1.	Order the Respondent to restore his car  to its original condition and repair it as expected and as the Respondent undertook; or

26.2.	Order the Respondent, if the Respondent fails to repair and restore the Applicant's car, to pay the Applicant the full insurer’s assessed value for the Applicant’s car, as at the date the Applicant handed the car over to the Respondent.

27.	Regarding the relief the Respondent seeks, the Tribunal considered that  – 

27.1.	more than three years have passed since the Applicant left his car  with the Respondent for repairs; 
27.2.	the Respondent sold the Applicant’s car without the Applicant’s knowledge or consent; 
27.3.	The Applicant tracked down his vehicle at the company the Respondent sold his car to; and 
27.4.	there is no evidence before the Tribunal regarding the car’s assessed value at the time.

28.	Irrespective of the above considerations, in the circumstances of this matter, it would be a manifest miscarriage of justice for the Tribunal not to afford the Applicant relief.

27.	Section 54(2) of the CPA entitles consumers to certain remedies for poor service. This section provides that – 
 “(2)	If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either— 
(a)	remedy any defect in the quality of the services performed or goods supplied; or 
(b)	refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.“

28.	Section 150 of the National Credit Act, Act 34 of 2005 as amended (“the NCA”), provides amongst others that –
“In addition to its other powers in terms of this Act, the Tribunal may make an appropriate order in relation to prohibited conduct or required conduct in terms of this Act, or the Consumer Protection Act, 2008, including—
(a)	declaring conduct to be prohibited in terms of this Act; …
(i)	any other appropriate order required to give effect to a right, as contemplated in this Act or the Consumer Protection Act, 2008.”

29.	It is apparent to the Tribunal that the Respondent entered into some or other agreement with a third party selling the Applicant’s car to the third party, without legal right or title to do so.

30.	In the Tribunal view, it is incumbent on the Respondent to take whatever steps necessary to get the Applicant’s car  back from the third party to whom the Respondent sold the Applicant’s car.

31.	Section 150 of the NCA empowers the Tribunal to make “any other appropriate order required to give effect to a right, as contemplated in this Act or the Consumer Protection Act, 2008.” The right in question is the Applicant’s right reflected in section 54(1)(d) of the CPA. Section 54(1)(d) provides that  - 
“(1) 	When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to— 
(d)	the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services,…” 

32.	The egregious conduct of the Respondent in accepting the Applicant’s car  for repairs, selling it, and merely shrugging its shoulders, leaving the Respondent without his fully paid-up car for years, would be basis for damages claim by the Applicant.

33.	The Tribunal does not have the power to award damages even in this instance where the Respondent acted in such an outrageous manner. 

34.	Consumers are entitled to exercise their rights in terms of section 164 (3) (b) and request the chairperson to issue the notice., in instances such as these where the Tribunal's finding of prohibitred or required conduct sets the foundation for the Applicant to approach the courts for damages. 

35.	Section 164 deals with civil actions. Section 164 (3) (b) requires a person, who has suffered a loss due to prohibited conduct and who wishes institute legal proceedings, to file a notice from the chairperson of the Tribunal with the registrar or clerk of the court. 

36.	Section 164(3) of the NCA provides that –
(3)	A person who has suffered loss or damage as a result of prohibited conduct or dereliction of required conduct—
(a	…; or
(b)	if entitled to commence an action referred to in paragraph (a), when instituting proceedings, must file with the registrar or clerk of the court a notice from the Chairperson of the Tribunal in the prescribed form—
(i)	certifying that the conduct constituting the basis for the action has been found to be a prohibited or required conduct in terms of this Act;
(ii)	stating the date of the Tribunal’s finding; and
(iii	setting out the relevant section of this Act in terms of which the Tribunal made  its finding. sets out the route for a person who has suffered loss or damage as a result of prohibited conduct or dereliction of required conduct. to commence action —…”

ORDER

37.	The Tribunal makes the following order- 

37.1.	The Respondent finds that the Respondent contravened section 54(1)(a) to (d) of the CPA;

37.2.	The Tribunal finds that the Respondent’s conduct is in contravention of section 54(1)(a) to (d),  and  declares the Respondent’s conduct prohibited conduct in terms of Section 150(a) of the NCA;  and

37.3.	The Tribunal orders the Respondent to take every step necessary to return the Applicant’s car  to him within ninety (90) business days of the date of the issuing of this judgment.

Dated at Centurion on this 16th day of October 2020.  

________________________
Ms D R Terblanche
Presiding Tribunal Member 

Mr. TA Bailey (member), and Prof K Moodaliyar (member) concurring.