Section 69 of the Consumer Protection Act, No 68 of 2008 (CPA) sets out a variety of statutory remedies for the enforcement of consumer rights under the CPA. These include a filing a complaint with the National Consumer Commission (Commission) and referring a dispute to the Consumer Tribunal (Tribunal) or approaching an industry ombud. What is of significance is the following, s69 (d) provides that “if” a consumer has exhausted the remedies provided for in s69, a consumer may then approach a court with jurisdiction to hear the dispute. What is the effect on consumers of this provision? Does it mean that the courts have to decline to hear matters where consumers approach them before, for example, filing a complaint with the Commission? Precisely this issue arose in the case of Joroy 4440 CC v Potgieter and Another and NNO 2016 (3) SA 465 (FB), and more recently in the case Motus Corporation (Pty) Ltd and Another v Wentzel (1272/2019) [2021] ZASCA (13 April 2021).
The Joroy Case:-
In this case the Applicant sought the refund of the purchase price that it paid to the Respondent for a motor vehicle. The Applicant brought its claim before the High Court in Bloemfontein and its cause of action was based on s55 and s56 of the CPA, dealing with a consumer’s right to good quality goods and services.
The Respondent took the point that the court did not have jurisdiction to hear the matter by virtue of the fact that, properly interpreted, the effect of s69(d) was that the applicant had not exhausted its other remedies provided for in s69(a) to s69(c). It was common cause that the applicant had not exhausted these remedies. The debate before the High Court thus turned on the proper interpretation of s69(d).
The court had regard to the plain meaning of the word “if” as it appears in s69(d). It held that what the section contemplates is that only “if” the remedies outlined in s69(a) to s69(c) of the CPA have been exhausted (for example, the remedies of complaining to the Commission or referring a dispute to the Tribunal), will a court then exercise its discretion to hear a matter in which relief in terms of the CPA is sought. It made particular reference to the Motor Industry Ombudsman, which has been established under the CPA to adjudicate upon these kinds of disputes. The court, accordingly, refused the application.
The Motus Corporation case:-
The Respondent brought an Application claiming that she is entitled to cancel a credit agreement between herself and the second Appellant, Renault South Africa (Pty), in respect of a Renault Kwid motor vehicle and to refund the purchase price paid for the vehicle in the amount of R 256, 965.84.
The Respondent tendered return of the vehicle against the refund of the purchase price. Renualt submitted that Ms Wentzel’s application to the High Court is premature, as she had not exhausted her remedies in terms of the provisions of s69 (d) of the CPA, more particularly because the Motor Industry Ombudsman of South Africa, to which she had referred her complaints to on 21 February 2018, had not yet rendered a decision, when she commenced legal proceedings against Renualt.
Although addressing the scope of s69 (d) fell away in argument. The court directed that the primary guide to deal with s69 (d) and the interpretation thereof will be s34 of the Constitution and the guarantee of the right of access to courts, and that s69 (d) should not be lightly read as excluding the right of consumers to approach the court in order to obtain redress. Furthermore, the court reiterated that a claim for cancellation of a contract and the refund of the purchase price of goods on the grounds that they were defective falls under the action redhibitoria and dates back to Roman times, that our courts have always had jurisdiction to resolve such claims and there is no apparent reasons why the section should preclude a consumer, at their election, from pursuing the avenue of relief until they have approached other entities.
In light of The Motus Corporation case it remains to be seen whether the judgment will allow for proceedings to be brought to courts in cases where a party has not exhausted the other remedies provided for in s69 (a) to s69 (c) of the CPA. At first glance, the SCA at the very least has left some scope for consumers to approach the courts before these remedies have been exhausted. The SCA has also allowed for some flexibility for courts to assert jurisdiction in terms of s34 of the Constitution.