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Legal implementation and the Ombud

Legal implementation and the Ombud

The consumer today will have many means of redress, but how would these means or remedies be addressed in the legal arena of South Africa. Section 69 of the Consumer Protection Act 68 of 2008 (CPA) it provides that a consumer seeking to enforce any right in terms of the CPA or otherwise to resolve any dispute with a supplier, 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’.

With reference to all other remedies available no one understood these until Section 82 of the CPA introduced the ADR’s, currently MIOSA and CGSO dealing with complaints on behalf of the consumer. Some suppliers and/or consumers were under the impression that it would either be an Ombud or a civil action to resolve their disputes, more likely to implement the civil action after all the consumer would have the right to choose his path of redress as mentioned in Section 115 of the Consumer Protection Act.

The legislature was very specific in prescribing the redress that a consumer had in terms of the section, namely; the National Consumer Tribunal, the applicable ombud with jurisdiction, an accredited industry ombud, and a consumer court of the province having jurisdiction, an alternative dispute resolution agent or the National Consumer Commission.

With reference to the above-mentioned Section: A case study

In this case, the applicant sought the refund of the purchase price that he had paid the respondent for a motor vehicle. He brought his claim before the High Court in Bloemfontein and his course of action was based on Section 55 and Section 56 of the CPA, which deals 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 Section 69(d) was that the applicant had not exhausted the other remedies provided for in Section 69(a) to Section 69(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 Section 69(d).

Section 69 of the CPA states as follows:

A person contemplated in Section 4(1) may seek to enforce any right in terms of this Act or in terms of a transaction or agreement, or otherwise resolve any dispute with a supplier, by: referring the matter directly to the Tribunal, if such a direct referral is permitted by this Act in the case of the particular dispute; referring the matter to the applicable ombud with jurisdiction, if the supplier is subject to the jurisdiction of any such ombud.

If the matter does not concern a supplier contemplated in paragraph (b): referring the matter to the applicable industry ombud, accredited in terms of Section 82(6), if the supplier is subject to any such ombud; applying to the consumer court of the province with jurisdiction over the matter, if there is such a consumer court, subject to the law establishing or governing that consumer court; referring the matter to another alternative dispute resolution agent contemplated in Section 70; filing a complaint with the Commission in accordance with Section 71; or approaching a court with jurisdiction over the matter, if all other remedies available to that person in terms of national legislation have been exhausted.

In determining the matter the Court had regard to the principle articulated by the Constitutional Court in Chirwa v Transnet Limited & Others 2008 (4) SA 367 (CC) to the effect that where a specialised framework has been created by the legislature for the resolution of disputes, parties must as a general principle pursue their claims through such frameworks.

In addition, the Court had regard to the plain meaning of the word ‘if’ as it appears in Section 69(d). It held that what the section contemplates is that only ‘if’ the remedies outlined in Section 69(a) to Section 69(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.

As a general principle, the courts do not readily find their jurisdiction to be limited. In the Joroy case, although not expressly stated, the court essentially held that a necessary jurisdictional fact was not present for the applicant to pursue its claim, namely that it exhausted its internal remedies. It did not find that it could not in due course assert jurisdiction.

It remains to be seen whether the judgment will be interpreted correctly between the parties involved in any litigation struggle, and whether this case will allow for a different interpretation of the relevant Sections of the Act. Nevertheless, this case will give more clarity on the existing struggle to establish the correct redress of the parties, but can also place pressure on the already pre-loaded ombud. It was recently confirmed by the NCC (National Consumer Council) that the Joroy case will be upheld and that the contents of Section 69 of the CPA must be given effect to the argument of Jurisdiction.

ABOUT THE AUTHOR

Frank Maritz has been a legal advisor for SEESA Consumer Protection & POPI for 6 years. He has gained first-hand experience in dealing with referrals to the different ombudsman in different sectors and has personally challenged the implementation thereof due to the fact that there were many contradictions in the interpretation of the legislation and practical execution thereof.

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