Access to redress for consumers: A tale of the effect of a notice of non-referral by the National Consumer Commission

• Jurisdiction: South Africa
• Author: M A (Riette) du Plessis
• Citation: (2018) 30 SA Merc LJ 330
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 330-347

ACCESS TO REDRESS FOR CONSUMERS: A

TALE OF THE EFFECT OF A NOTICE OF

NON-REFERRAL BY THE NATIONAL

CONSUMER COMMISSION

M A (RIETTE) DU PLESSIS*

Associate Professor, School of Law, University of the Witwatersrand

Abstract

The National Consumer Commission issued a notice of

non-referral, whereafter the National Consumer Tribunal, in its

judgment, misdirected itself on the applicability and interpretation

of the CPA. This was corrected during a second hearing by a

different panel of the Tribunal. The Tribunal’s arguments at the

f‌irst hearing are discussed, with reference to both the CPA and

common law. Referrals for assistance under sections 69, 70, 72 and

73, the inability of certain ombuds to enforce their decisions and

the restrictions placed on provincial consumer protection

authorities and consumer courts by section 84 are discussed. The

consequences of the Commission’s decision no longer to investigate

individual consumer complaints and its issuing of notices of

non-referral may have the effect of matters not being escalated to

the Tribunal. Consumers may as a result not be able to proceed

with a civil action for damages because they will lack the necessary

locus standi to bring such actions, as they may be denied access to

the courts if they have not exhausted all other remedies as required

by section 69(d) of the CPA.

I INTRODUCTION

This article analyses an application for leave to refer a matter brought

before the National Consumer Tribunal (Tribunal) in terms of the

Consumer Protection Act (CPA),

1

after a notice of non-referral had

been issued by the National Consumer Commission (the Commis-

* BA LLB (Stell) LLM PHD (Wits).

1

Act 68 of 2008. All references in this article to sections and to the Act are references to the

CPA unless otherwise indicated.

330

(2018) 30 SA Merc LJ 330

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sion).

2

Two separate panels of the Tribunal adjudicated the same case on

identical facts. The misdirection on the applicability and interpretation

of the CPA at the f‌irst hearing, which was corrected during the second

hearing, is discussed. The Tribunal’s arguments at the f‌irst hearing

necessitate a discussion of the effects of a claim instituted in terms of the

CPA or in terms of the common law of contract.

In both judgments the Tribunal addressed referrals for assistance

under sections 70, 72 and 73, as well as referrals to alternative dispute

resolution agencies in terms of section 69. In this contribution, the

inability of certain ombuds to enforce their decisions, as well as the

restrictions placed on provincial consumer protection authorities and

consumer courts by section 84 are discussed. The consequences of the

Commission’s decision no longer to investigate individual consumer

complaints and its issuing of notices of non-referral are probed.

The CPA aims to provide for an accessible, consistent, harmonised,

effective and eff‌icient system of redress for consumers,

3

while also

attempting to provide consumers with speedier, less cumbersome

avenues of redress.

4

Nyenti, in stating that the concept of access to justice

has evolved over the years,

5

acknowledges that courts or tribunals which

adjudicate or mediate, are very important components of the right to

access to justice. He emphasises that ‘the legal system should be

structured and administered in such a manner that it provides everyone

with affordable and timeous access to appropriate institutions and

procedures through which to claim and protect their rights’.

6

The access

to redress for consumers is central to the CPA.

II BACKGROUND TO THE CASE

On 31 January 2011 the applicant bought a lounge suite from the

respondent under the impression that the couches had genuine leather

uppers. The leather started to peel off within a year, but the applicant

only lodged a complaint with the respondent in January 2015.

7

The

2

Letlapa Shadrack Motswai v House and Home (a trading division of Shoprite Checkers (Pty)

Ltd) NCT 33263/2015/75(1)(b)CPA.

3

Section 3(1)(h) of the CPA. See also Van Heerden & Barnard, ‘Redress for consumers in

terms of the Consumer Protection Act 68 of 2008: A comparative discussion’ (2011) 6 Journal

of International Commercial Law and Technology 131 at 132.

4

Mupangavanhu, ‘An analysis of the dispute settlement mechanism under the Consumer

Protection Act 68 of 2008’ (2012) 15 PELJ 319 at 322.

5

Nyenti, ‘Access to justice in the South African social security system: Towards a

conceptual approach’ 2013 De Jure 901 at 902.

6

Nyenti, 2013 De Jure 901 at 903.

7

See explanation for the late reporting in III below.

ACCESS TO REDRESS FOR CONSUMERS 331

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