IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION

Case number: NCT/157190/2020/75(1)(b)

In the matter between:

RIAAN GROBBELAAR							APPLICANT

And

VERTICE HEALTHCARE (PTY) LTD					RESPONDENT

Coram

Adv. J Simpson					- Presiding Tribunal member

Date of consideration (in chambers)		- 3 September 2021
Date of Judgment					- 3 September 2021

_________________________________________________________________________
JUDGMENT ON APPLICATION FOR LEAVE TO REFER
_________________________________________________________________________

THE PARTIES
1.	The Applicant in this matter is Riaan Grobbelaar, an adult male residing in Bloemfontein (“the Applicant” or “Mr Grobbelaar”). 
2.	The Respondent is Vertice Healthcare (Pty) Ltd (“the Respondent” or “Vertice”). 
APPLICATION TYPE 
3.	This is an application in terms of Section 75(1)(b) of the Consumer Protection Act, 	Act 68 of 2008 (“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.	In summary, in 2011, the Applicant had a Vagus Nerve Stimulator implanted into his chest by surgical procedure at the cost of R132 099.00. The machine helped with his depression and worked well. In February 2019, the machine’s battery was depleted, and a new battery had to be implanted by surgical procedure. The Applicant purchased a new VNS pulse generator from the Respondent, and it was implanted at the cost of R157 791.37 in September 2019. The Applicant alleges the new machine does not work as he is still depressed. Therefore, the new machine must be defective. He wants the total cost of the implant refunded as compensation for wasted costs.  
9.	The Applicant lodged a complaint with the National Consumer Commission (NCC) on 11 November 2019. The NCC issued a Notice of non-referral dated 16 January 2020. The letter accompanying the notice essentially stated that the Applicant should refer the complaint to the medical ombudsman.  
10.	The Applicant lodged the application with the Tribunal in February 2020. He also applied for condonation for the late filing of the application. Condonation for the late filing was granted in a written judgment dated 5 October 2020.
11.	The Respondent did not file an answering affidavit, and the matter was set down for a hearing for 31 March 2021 for leave to refer.  
12.	The Respondent filed its answering affidavit on 30 March 2021 and an application to condone the late filing. The leave to refer hearing on 31 March 2021 was postponed for consideration of the application for condonation. The Applicant filed his replying affidavit on 9 April 2021 (the affidavit is incorrectly titled “answering affidavit” but is clearly intended to be a replying affidavit). Condonation for the late filing of the Respondent’s answering affidavit was granted in a written judgment dated 14 June 2021.  
13.	The Respondent submits that the device can only be sold to a healthcare professional; it cannot be sold to a member of the public. The healthcare professional is the customer and not the Applicant. The device was tested before it was implanted and was working correctly. The Applicant has not submitted any evidence that the device is defective or not working. There are numerous reasons why the Applicant may still be experiencing depression. 

APPLICATION FOR LEAVE
14.	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.
15.	Previously, the Tribunal held a formal hearing on leave to refer with all the parties present. In the matter of Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others (Case no 314/2020) [2021] ZASCA 91 (25 June 2021) SAFLII, the court provided useful guidance to the Tribunal in decisions regarding leave to refer. It held that a formal hearing on leave to refer was unnecessary, there was no test to be applied and the decision to consider leave could not be appealed. The court held - 
“[15] As I have explained, the NCA provides for an expeditious, informal and cost-effective complaints procedure. Section 141(1)(b) confers on the Tribunal a wide, largely unfettered discretion to permit a direct referral. The NCA does not require a formal application to be made and it is not necessary for purposes of the present appeal, nor is it desirable, to circumscribe the factors to which the Tribunal should have regard. There is no test to be applied in deciding whether or not to grant a direct referral to it in respect of a complaint. The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings by the Regulator, and to decide whether it deserves its attention. Circumstances which may influence its decision may include the prospects of success, the importance of the issue, the public interest to have a decision on the matter, the allocation of resources, the complainant’s interest in the relief sought and the fact that the Regulator did not consider that it merited a hearing before the Tribunal. The list is not intended to be exhaustive.”
16.	As there is no test to be applied, the Tribunal will consider the matter in the general context of the circumstances as submitted by the parties. 
17.	The matter is an unusual application. There is no record that the Tribunal has dealt with a case of this nature previously. The Applicant appears to be arguing that sections 55 and 56 of the CPA is applicable as the goods, being the implanted medical device, is defective. He further appears to be arguing that the defect arose within six months after being implanted. 
18.	Many questions arise in this matter. Is an implanted medical device “goods” as described in the CPA? Does the CPA provide for a claim of this nature? Is the Applicant the “consumer” for the purposes of the CPA? Is the matter more appropriately dealt with by the Medical Ombudsman and its related legislation? 
19.	These aspects must be considered and evaluated in a hearing by a full panel of the Tribunal. The matter may serve as a precedent for future cases of this nature. 
20.	At this stage, it must be noted that the Applicant has not provided any direct evidence that the device itself is defective. Any claim under sections 55 and 56 of the CPA only relates to the cost of the goods, not the cost of any surgical procedures or ancillary cost. 
CONCLUSION 
21.	In the interests of justice, leave should be granted so that the legal issues can be properly considered. 
ORDER
22.	Accordingly, the Tribunal makes the following order –
22.1	The Applicant’s application for leave to refer is granted; and
22.2	There is no order as to costs.

THUS DONE IN CENTURION ON THIS 3RD DAY OF SEPTEMBER 2021

[signed]
Adv. J. Simpson
Presiding Tribunal Member