Joroy 4440 CC v Potgieter and Another NNO
Duty to exhaust all other available remedies before approaching the court: Section 69(d) of
the Consumer Protection Act 68 of 2008 (the CPA) provides that a consumer seeking to enforce
any right in terms of the CPA or in terms of a transaction or agreement or otherwise to resolve
any dispute with a supplier, may approach a court having jurisdiction over the matter if ‘all
other remedies available to that person in terms of national legislation have been exhausted’.
In other words, the section makes the court a forum of last, and not first, resort. However, in
Joroy 4440 CC v Potgieter and Another NNO 2016 (3) SA 465 (FB) the applicant close
corporation, Joroy, did the opposite of what the section stipulates. Having bought a motor
vehicle from a trust, which was under the trusteeship of the respondents Potgieter and
another, it approached the High Court for a refund of the full purchase price of the vehicle. The
court did not have to deal with the merits of the case but simply disposed of it on a preliminary
point of law of lack of jurisdiction. The court did not make a finding on the merits of the
application, this leaving the applicant free to utilise any of the dispute resolution mechanisms
available in terms of the CPA. The application for refund of the purchase price was refused and
each party ordered to pay own costs.
Reinders J held that the wording of the section was clear and unambiguous. It specifically stated
that the consumer could approach the court if all the other avenues or redress therein
indicated have been exhausted. The legislature was very specific in prescribing the redress that
a consumer had in terms of the section, namely, the National Consumer Tribunal, the applicable
ombud with jurisdiction, an accredited industry ombud, a consumer court of the province
having jurisdiction, an alternative dispute resolution agent or the National Consumer
Commission. In the instant case, as the dispute related to a motor vehicle, there was an
accredited motor industry ombud, namely, the Motor Industry Ombudsman of South Africa,
which dealt specifically with dispute resolutions between consumers and the motor industry.
Sheriff, Piketberg and Another v Lourens
Sale in execution: In Sheriff, Piketberg and Another v Lourens 2016 (6) SA 110 (WCC); [2016] 4
All SA 239 (WCC) the Sheriff sold an immovable property situated at Piketberg, at an auction
pursuant to a court order for the execution of a judgment. The conditions of sale were available
for inspection before the sale. The relevant clause provided that the buyer would be liable ‘for
the payment of all costs and charges necessary to effect transfer, including but not limited to
conveyancing costs, transfer duty or value added tax (VAT) attracted by the sale and any Deeds
Registration Office levies.’
The purchaser, Lourens, refused to pay the VAT amount of R 88 200 due. The Sheriff was thus
unable to have the property registered in Lourens’ name. Lourens also failed to respond to the
Sheriff’s demand for payment of the VAT.
Duty to exhaust all other available remedies before approaching the court: Section 69(d) of
the Consumer Protection Act 68 of 2008 (the CPA) provides that a consumer seeking to enforce
any right in terms of the CPA or in terms of a transaction or agreement or otherwise to resolve
any dispute with a supplier, may approach a court having jurisdiction over the matter if ‘all
other remedies available to that person in terms of national legislation have been exhausted’.
In other words, the section makes the court a forum of last, and not first, resort. However, in
Joroy 4440 CC v Potgieter and Another NNO 2016 (3) SA 465 (FB) the applicant close
corporation, Joroy, did the opposite of what the section stipulates. Having bought a motor
vehicle from a trust, which was under the trusteeship of the respondents Potgieter and
another, it approached the High Court for a refund of the full purchase price of the vehicle. The
court did not have to deal with the merits of the case but simply disposed of it on a preliminary
point of law of lack of jurisdiction. The court did not make a finding on the merits of the
application, this leaving the applicant free to utilise any of the dispute resolution mechanisms
available in terms of the CPA. The application for refund of the purchase price was refused and
each party ordered to pay own costs.
Reinders J held that the wording of the section was clear and unambiguous. It specifically stated
that the consumer could approach the court if all the other avenues or redress therein
indicated have been exhausted. The legislature was very specific in prescribing the redress that
a consumer had in terms of the section, namely, the National Consumer Tribunal, the applicable
ombud with jurisdiction, an accredited industry ombud, a consumer court of the province
having jurisdiction, an alternative dispute resolution agent or the National Consumer
Commission. In the instant case, as the dispute related to a motor vehicle, there was an
accredited motor industry ombud, namely, the Motor Industry Ombudsman of South Africa,
which dealt specifically with dispute resolutions between consumers and the motor industry.
Sheriff, Piketberg and Another v Lourens
Sale in execution: In Sheriff, Piketberg and Another v Lourens 2016 (6) SA 110 (WCC); [2016] 4
All SA 239 (WCC) the Sheriff sold an immovable property situated at Piketberg, at an auction
pursuant to a court order for the execution of a judgment. The conditions of sale were available
for inspection before the sale. The relevant clause provided that the buyer would be liable ‘for
the payment of all costs and charges necessary to effect transfer, including but not limited to
conveyancing costs, transfer duty or value added tax (VAT) attracted by the sale and any Deeds
Registration Office levies.’
The purchaser, Lourens, refused to pay the VAT amount of R 88 200 due. The Sheriff was thus
unable to have the property registered in Lourens’ name. Lourens also failed to respond to the
Sheriff’s demand for payment of the VAT.
