Mokgoke v Momentum Insure Company Limited (NCT/279251/75(1)(b) – Rule 34) [2023] ZANCT 35 (20 September 2023)

The applicant submitted a claim to his insurer, water leakage of his motor vehicle in June 2020. Two days later the insurer collected the vehicle and referred it to various service providers. The insurer informed the applicant that his claim was rejected since it was not covered by the policy, in August 2020.

On the date scheduled to collect the vehicle, the applicant found the vehicle in a state of disrepair. The front lights system and the tracker were removed, the bumper was broken, and engine parts were either missing or scattered inside the vehicle. Because of the vehicle’s condition, the applicant refused to take possession.

According to the applicant, the respondent is liable for the actions of the appointed service providers, who failed to exercise the required care. The applicant did not dispute the rejection of the insurance claim but claimed damages for the loss.

In March 2022 the National Consumer Commission advised the applicant to refer his complaint to the Financial Sector Conduct Authority. The FSCA referred him to the Motor Industry Ombudsman. The applicant applied, in June 2023, for leave to refer the matter directly to the National Consumer Tribunal.

The application was filed late, and the applicant had to apply for condonation. In determining the issue of condonation, the Tribunal had to consider the applicant’s prospects of success.

On the papers, the Tribunal found that the applicant did not have a reasonable prospect of success, because the Tribunal does not have the statutory jurisdiction to consider the complaint because the insurer is not a supplier as defined in the Consumer Protection Act. It was also common cause that third parties had provided the services which led to the damage, and the applicant did not claim against those suppliers as respondents in the matter. The Tribunal stated that the dispute revolved around the contractual obligation of an insurer in terms of its insurance contract. The services of insurers are governed by the Insurance Acts, and not by the CPA. The Tribunal advised the applicant that he should approach a court for relief as required by the insurance contract.

Section 10(1) A of the Financial Sector Conduct Authority expressly provides that the Consumer Protection Act does not apply to or in relation to a function, act, transaction, financial product or financial service which is subject to a financial sector law which is regulated by the Financial Sector Conduct Authority.