This judgement considered whether section 69 of the Consumer Protection Act (CPA), which provides that a person may not seek to enforce any right in terms of the CPA, or in terms of a transaction or agreement or otherwise to resolve a dispute by approaching the court with jurisdiction of the matter unless  “all other remedies available to that person in terms of national legislation have been exhausted”.

In this dispute in which the applicant had cancelled a franchise agreement and approached the court seeking a refund and declaration that the franchise agreement was void and unenforceable because of the failure to comply with the relevant provisions of the CPA, the respondent argued that the court did not have jurisdiction to adjudicate the claims because the applicant had not exhausted all other remedies available to her.

The court considered whether the CPA or other legislation provided a remedy sufficient to correct the breaches that the applicant alleged occurred.  The court could find no reference to a consumer court having been established as envisaged by the CPA in terms of any provincial legislation and that therefore that avenue was not available to the applicant.

The respondent had not argued that the applicant had an ability to obtain relief from the Consumer Goods and Services Ombud.  In any event the court did not believe a referral to that Ombud would be appropriate or sufficient to deal with the applicant’s complaint it being doubtful that the relevant Ombud had the power to grant the applicant the relief it sought.

The National Consumer Tribunal’s powers were circumscribed by the Tribunal’s rules.  It did not appear to have power to grant declaratory relief nor to deal with the claims for payment of money.  And it did not appear that the Tribunal had the power to deal with the contravention of the relevant sections complained of by the applicant.

The court observed that at common law there is a presumption against construing a statute so as to oust the court’s jurisdiction.

Reference was made to the Supreme Court of Appeal remarks in Motus Corporation (Pty) Ltd trading as Zambezi Multifranchise and Another v A Wentzel [2021] 3 ALL SA 98 (SCA) where the court said:

“Section 69(d) should not lightly be read as excluding the right of consumers to approach the court in order to obtain redress.  A claim for cancellation of the contract and the refund of the price of goods on the grounds that they were defective falls under the actio redhibitoria and dates to Roman

times. Our courts have always had jurisdiction to resolve such claims and there is no apparent reason why the section should preclude a consumer, at their election, from pursuing that avenue of relief until they have approached other entities…

Furthermore, subsection (d) does not refer to the consumer pursuing all other remedies “in terms of this Act”, but of pursuing all other remedies available in terms of national legislation. That could be a reference to legislation other than the Act, or to the remedies under both the Act and other

applicable consumer legislation, such as the National Credit Act 34 of 2005.”

The court was referred to two unreported cases decided in the Free State High Court which held that the court did not have jurisdiction to deal with matters because the plaintiffs had not exhausted their remedies under section 69. The court did not consider itself bound by those Free State High Court decisions and in any event respectfully disagreed with the findings to the extent that they are contrary to the appeal court’s opinion in Motus Corporation.

No purpose would be served by requiring the applicant to approach the relevant Ombud or National Consumer Tribunal or by requiring her to file a complaint with the National Consumer Commission.  That would merely serve to delay the adjudication of the claims.

The jurisdictional objection was dismissed.