An unjust interpretation of Section 116(1) of the Consumer Protection Act 68 of 2008 : the impact of First Rand Bank Limited v Ludick GP (unreported) 2020-06-18 Case no A277/2019

Abstract

One of the key objectives of the Consumer Protection Act (68 of 2008) (CPA) is to ensure that consumers are provided with “an accessible, consistent, harmonised, effective and efficient system of redress” (s 3(1)(h) of the CPA). This has not been an easy task. Some difficulties have arisen with the interpretation of the detailed, yet unclear, system of redress set out in section 69 of the CPA, particularly in relation to when the court can be approached, and whether there is an implied hierarchy that applies in the dispute-resolution process (see generally Imperial Group (Pty) Ltd v Dipico 2016 ZANCHC 1; Joroy 4440 v Potgieter 2016 (3) SA 465 (FB); Imperial Group t/a Auto Niche Bloemfontein v MEC: Economic Development, Environmental Affairs and Tourism Free State Government 2016 (3) SA 564 (FB); Motus Corporation v Wentzel [2021] ZASCA 40). In other instances, the reluctance of industry members to cooperate with accredited industry ombuds has made the work of these dispute-resolution agents challenging (see generally Consumer Goods and Services Ombud NPC v Voltex (Pty) Ltd [2021] ZAGPPHC 309; see also definition of “alternative dispute resolution agent” in s 1 of the CPA). Furthermore, an aspect that has undermined the key objective of the CPA to ensure that consumers have access to redress is the interpretation that has been afforded to section 116(1) of the CPA following the decision of the High Court in FirstRand Bank Limited v Ludick (GP (unreported) 2020-06-18 Case no A277/2019) (Ludick). Section 116(1) of the CPA regulates prescription in terms of the statute. It provides that consumers ought to approach the consumer court or the National Consumer Tribunal (Tribunal) within a period of three years from the date of the act or omission, or, in the case of conduct that is ongoing or continuing, from the date upon which, the conduct in question ceased. The court in Ludick considered the equivalent provision in the National Credit Act (34 of 2005) (NCA), namely, section 166(1) of the NCA. Before Ludick, the Tribunal adopted a less stringent approach when interpreting section 116(1) of the CPA. Where circumstances required, such as where a consumer had referred a matter to an alternative-dispute-resolution agent (ADR agent), prescription was considered to have been suspended or interrupted (see, for e.g., Lazarus v RDB Project Management CC t/a Solid [2016] ZANCT 15 par 31; Mpofu v Terry’s Auto [2017] ZACONAF 5 par 19; Stemmet v Motus Corporation [2018] ZANCT 150 par 8; Littlewood Building and Garden Services Projects CC v Hyundai Automative SA [2018] ZANCT 91 par 33; Auto Glen Motors (Pty) Ltd t/a Auto Glen v Barnes In re: Barnes v Auto Glen Motors (Pty) Ltd t/a Auto Glen [2018] ZANCT 51 par 21; Mountville Mkhalemba Lubisi v Imperial Select Multifranchise (Pty) Ltd [2018] ZANCT 141 par 45).