For many years consumer lawyers have been puzzling over section 69 of the Consumer Protection Act 68 of 2008 and whether it creates a mandatory route that a dissatisfied consumer needs to follow. While the section sets out several forums that a consumer may approach, the problematic part reads:
‘…approaching a court with jurisdiction over the matter, if all other remedies available to that person in terms of the national legislation have been exhausted.’
In essence, this created the concern that consumers were forced to exhaust the other remedies (such as going to the Motor Vehicle Industry Ombud of South Africa (MIOSA) or the Consumer Goods and Services Ombud (CGSO)) before they would be able to approach a court. Ironically (and the irony is significant) this meant that consumers had effectively less rights than in other contractual situations. Several commentators had mentioned that – if this were true – then this section may be able to be challenged in terms of s34 of the Constitution of South Africa (1996) which states:
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
Unfortunately, this section of the constitution still leaves the door wide open to the possibility that a consumer must exhaust consumer bodies like the CGSO before it is able to approach a court. Indeed that is precisely what was held in Joroy 4440 CC v Potgieter and Another NNO 2016 (3) SA 465 (FB) where it was held that the failure to first exhaust other remedies prevented the court from hearing the matter at all. Even worse, Nzwana v Dukes Motors t/a Dampier Nissan (1170/2018) [2019] ZAECGHC 81 (3 September 2019) then confirmed this approach.
Enter Motus Corporation (Pty) Ltd and Another v Wentzel (Case no 1272/2019) [2021] ZASCA 40 (13 April 2021) which is notably a Supreme Court of Appeal case (as opposed to Joroy (Free State High Court) and Nzwana (Eastern Cape High Court). In this matter the appellants also raised the defence of the consumer (Applicant) failing to exhaust other forms before approaching the High Court. Tragically this point was abandoned by the appellant during the course of the case which meant that any comments on this issue became obiter – obiter remarks are not essential to a decision and do not create binding precedent. Despite it being obiter, Zondi JA then went on to provide as clear an indication as possible that the decisions by Joroy and Nzwana were incorrect:
“Section 69(d) should not lightly be read as excluding the right of consumers to approach the court in order to obtain redress.”
and
“The section is couched in permissive language consistent with the consumer having a right to choose which remedy to pursue.”
and
“Given the purpose of the Act to protect the interests of the consumer, who will always be the person seeking redress under it, there is no apparent reason why they should be precluded from pursuing immediately what may be their most effective remedy.”
This is the clearest indication yet that a consumer would be entitled to approach a court directly and not be forced to exhaust other forums first. This is particularly important as forcing a consumer to approach other forums before approaching the courts inevitably delays the matter considerably – often to the considerable detriment of the consumer. Even worse the decisions of consumer ombuds such as the GGSO and MIOSA are not binding on the supplier! In our view Zondi’s obiter judgment sets out the correct consumer-centric approach which section 2(10) of the CPA enjoins us to consider when it states:
“No provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law.”