Looking back to March 2011, the media were positively giddy with excitement about the Consumer Protection Act, No. 68 of 2008 (CPA) and the whip cracking that was to be done by the National Consumer Commission (Commission) on behalf of consumers who felt hard done by after poor treatment from goods suppliers or service providers. Complain, the media urged, if a supplier wants to charge you for a quote. Complain if they won't let you return something within six months of purchase. Complain, they wrote, because now you will be heard by the Commission, the consumer protection watchdog.
Three years later and recent judgements by the National Consumer Tribunal (Tribunal) reveal that, in certain instances, these complaints were heard by a statutory body whose bark was louder than its bite. Of the 11 judgements reflected on the Southern African Legal Information Institute's website at the time of writing, five of the judgements were applications to the Tribunal to review and set aside compliance notices granted by the Commission.
Club Leisure Group v National Consumer Commission 2014 ZANCT 5
The Commission issued a compliance order and the applicant applied to have it reviewed and cancelled by the Tribunal. The Commission did not file an answering affidavit and did not appear at the hearing. The Tribunal held that the CPA was not applicable to the matter because the contract was concluded prior to the effective date of the CPA and the compliance notice was therefore cancelled.
Quality Vacation Club v National Consumer Commission 2014 ZANCT 6
A compliance notice was issued by the Commission and the applicant applied to have it reviewed and cancelled by the Tribunal. The Commission did not file an answering affidavit and did not appear at the hearing. Not applicable, the Tribunal responded, because the agreement was entered into prior to the CPA effective date. The compliance notice was cancelled.
Hyundai Automotive SA (Pty) Ltd v t/a Kia Motors Roodepoort 2014 ZANCT 8
A compliance notice was issued and the applicant applied to have it set aside. No answering affidavit was filed and there was no appearance at the hearing on behalf of the Commission. The applicant's allegations, which were consequently all deemed to be admitted by the Commission, was that no investigation was ever conducted, the complaint was never received, nor any conciliation hearing attended. The Tribunal noted that the compliance notice contained no evidence of any prohibited conduct. The compliance notice was cancelled.
Inks Media and Digital Machine Supplies CC t/a IMDM v National Consumer Commission 2014 ZANCT 4
A compliance notice was issued and the applicant duly applied to have the notice set aside. Once again, the Commission never filed an answering affidavit and was not represented at the hearing so all allegations were deemed to be admitted. The Tribunal held that the CPA was not applicable because the purchase and delivery of the machine occurred before the effective date, but for some reason the Tribunal elected, never the less, to deal with the application of the CPA to the facts. It found that the complainant had only raised concerns regarding the machine approximately eight months after purchase, well outside of the six months provided for by the CPA. The notice was cancelled.
Byleveld v Execor Twelve (Pty) Ltd t/a Motor City and Another 2014 ZANCT 2
This time, the Commission incorrectly informed the complainant that the transaction had been concluded prior to the effective date of the CPA and that it therefore did not have jurisdiction to deal with the complaint. At the hearing, the Tribunal noted that it was common cause that the transaction occurred more than two months after the effective date. The Tribunal found that the supplier had sold the complainant a defective car and failed to complete the repairs that it had agreed to complete. It was held that the purchaser was entitled to a full refund of the amount for the repairs necessary to render the vehicle usable by the applicant.
A recurring theme through all of the cases is that the Commission failed to correctly assess its jurisdiction over the matter. Moreover, in not one of these cases did the Commission appear at the hearing to argue its point or support the compliance notice it had issued. In only one of these cases was an answering affidavit even filed by the Commission. In not one of these cases was an investigation conducted, as is required under the CPA.
When the Commission has appeared at hearings to oppose an application to set aside a compliance notice, it has not necessarily fared any better. In the City of Johannesburg case in 2012, the Tribunal found that the Commission had not followed the processes and procedures which govern the investigation of complaints prior to the issuing of compliance notices. In addition, the compliance notices issued had been defective. Communication by the Commission appears to have been very poor, with parties purportedly either not receiving information from the Commission or receiving it deplorably late. In two separate cases in 2012, concerning complaints lodged against Vodacom and MTN respectively, the compliance notices issued by the Commission were set aside because the Commission had failed to consult with the Independent Communications Authority of South Africa (ICASA), as required by the CPA when complaints are lodged against regulated entities.
It must be noted that it is unclear how many complaints have been resolved informally by the Commission. It is likely doing itself a disservice by not publicising complaints resolved informally. The Commission will need to address these issues urgently in order to fulfil its consumer protection mandate and align its bark with its bite.