Sipho bought a laptop computer from a well-known laptop dealer. Five days later, the laptop stopped working. Sipho is disappointed by this and decides to cancel the contract, return the laptop to the dealer, and claim a refund of the price he paid – which the Act entitles him to do. The dealer tells Sipho to leave the laptop at the store and that he will refund Sipho by electronic transfer within five days.
After six days, Sipho has not received his money. He phones the dealer to enquire about why he has not been paid out. The dealer informs Sipho that he is tired of ungrateful customers, that Sipho will not get refunded his money, and he is welcome to come and collect his broken laptop.
Sipho’s consumer rights are being violated, and he needs assistance. How would Sipho be able to enforce his rights in terms of the Consumer Protection Act?
Section 4 of the CPA provides that any person may, in a manner provided for in the Act, approach a court, the National Consumer Tribunal or the National Consumer Commission alleging that a consumer’s rights in terms of the Act have been infringed, impaired or threatened or that prohibited conduct has occurred or is occurring.
Section 4 seems to provide Sipho with a wide variety of ways to try to vindicate his rights. However, its wide language is narrowed down by an important section that appears later in the Act – section 69. This section provides that a consumer may seek to enforce any right in terms of the Act or otherwise resolve any dispute with a supplier by:
- referring the matter directly to the Tribunal, if such a direct referral is permitted by the 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;
- referring the matter to the relevant industry ombud 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;
- filing a complaint with the Commission; 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.
Therefore, this section sets out a hierarchy of various bodies that are empowered to deal with consumer issues. The focus of section 69 is quite clearly on encouraging the resolution of consumer issues through theoretically cheaper and quicker alternative dispute resolution forums or informal bodies such as consumer courts. Litigating a matter in, for example, the magistrate’s court is, therefore, the last resort if the other methods are unavailable or are not of assistance.
In Sipho’s case, he would be encouraged to refer the matter to the relevant industry ombud, the Consumer Goods and Services Ombud. This organisation can be contacted at www.cgso.co.za. Alternatively, Sipho could refer the matter to a person or entity providing consumer conciliation, mediation or arbitration services to assist in resolving the dispute. If an alternative dispute resolution agent has resolved or assisted parties in resolving their dispute, the agent may record the resolution of that dispute in the form of an order.
Suppose an alternative dispute resolution agent concludes that there is no reasonable probability of the parties resolving their dispute through the process provided for. In that case, the agent may terminate the process by notice to the parties, whereafter the party who referred the matter to the agent may file a complaint with the National Consumer Commission (in Gauteng) for a resolution.
In so far as consumer courts are concerned, there are some in the big cities in South Africa, but consumer courts do not exist in smaller towns or rural areas. Since Sipho may only approach ordinary courts if all other remedies provided for by the CPA have been exhausted, it is a pity that the Act does not also give small claims courts or magistrate’s courts a more prominent place in the resolution of consumer disputes, in the interests of those who live, for example, in Makhanda.
Ndumiso Khumalo
Attorney, Rhodes University Law Clinic
