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Exhausting available remedies – when may consumers approach the courts to obtain redress?

Exhausting available remedies – when may consumers approach the courts to obtain redress?

The Consumer Protection Act (CPA), 68 of 2008 exists with the purpose of protecting the interests of consumers who are subjected to abuse or exploitation in the marketplace. A key component of the protection extended by the CPA entails ensuring accessible, transparent and efficient redress for aggrieved consumers.

Section 69 of the CPA deals with the enforcement of rights by the consumer and sets out the dispute resolution procedure. In particular, Section 69(d) of the CPA provides that a consumer seeking to, inter alia, enforce any right in terms of the CPA may approach a court having jurisdiction over the matter “if all other remedies available to that person in terms of national legislation have been exhausted”.

The interpretation of this clause, and whether it can construed to reasonably have more than one meaning, formed the basis of the dispute in the recent judgment of Joroy 4440 CC t/a Ubuntu Procurement v Potgieter N.O. and Another (2016). The issue of whether this section has the effect of making the courts a forum of final resort formed the subject matter in determining whether the court had jurisdiction to hear the matter. The applicant chose to approach the High Court seeking a refund of the full purchase price of a vehicle prior to exhausting any other available remedies.

The High Court confirmed that Section 69(d) cannot be considered to reasonably have more than one meaning and confirmed that the legislature was specific on the point that a consumer may approach a court if all other resolution mechanisms have been exhausted as is envisaged in Section 69(a), (b) and (c). The other avenues include referring the matter directly to the National Consumer Tribunal; to the applicable ombud with jurisdiction; to the applicable industry ombud accredited in terms of Section 82(6); to the consumer court; alternative dispute resolution; and filing a complaint with the National Consumer Commission. In the case of the motor industry an ombud in terms of Section 82(6) has been accredited.

The High Court emphasised the point that where a specialist framework has been created to deal with dispute resolution, this must be the primary mechanism that parties utilise in vindicating their claims. The High Court found that it lacked the necessary jurisdiction to hear the dispute and did not make a finding on the merits of the dispute instead leaving the applicant with the choice of pursuing the dispute through the other CPA prescribed dispute resolution mechanisms.

This judgment confirms that an aggrieved consumer may only approach the courts as a last resort and once all other forms of redress as envisaged by Section 69 of the CPA have been exhausted.

 

ABOUT THE AUTHOR

Shamon Gounden obtained his B.Soc.Sci (Law), LLB and LLM (Labour Law) degrees from the University of the Kwa-Zulu Natal. He is currently a SEESA Consumer Protection & POPI Legal Advisor.

 

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