Makadu v NTT Volkswagen [2024] ZANCHC 52
CONSUMER – Defective goods – Exhausting internal remedies – Brand new vehicle defective
Requested cancellation of agreement declined by respondent – Applicant’s failure to comply with section 69(d) of Act – Failure to exhaust internal remedies before approaching court – Lodged complaint with ombudsman – Did not refer matter to Consumer Tribunal – Application refused for failure to exhaust all internal remedies – Consumer Protection Act 68 of 2008, s 69(d).
Facts: The applicant concluded an instalment sale agreement with the Volkswagen Financial Services South Africa for the sale of a brand-new Volkswagen Polo Vivo. NTT Volkswagen Kimberley (NTT) is the dealership that assisted with the transaction and delivery of the vehicle. When the applicant attempted to start the motor vehicle, it would not start, and a brash noise emanated from the ignition. The applicant reported the incident to the NTT and the motor vehicle was towed to the NTT’s premises. A technician reported that the vehicle would not start, but instead made a “clack clack noise” when an attempt was made to start it at the NTT’s premises. The workshop foreman (Barry Wessels) assessed the vehicle and the diagnosis revealed that the fuse pin was not making secure contact, resulting in a lack of power to the ignition when an attempt was made to start the vehicle. The fuse was replaced and inserted in a different vacant fuse socket, which allowed for a secure connection. The applicant was contacted and informed of the status of the vehicle and that the matter had been rectified, but the applicant refused to take delivery of the vehicle. Thereafter, the applicant requested cancellation of the instalment sale agreement. NTT had declined the applicant’s request for cancellation of the agreement. After complaints by the applicant, a representative of NTT offered to replace the vehicle, but when it emerged that the replacement vehicle was not available in the applicant’s choice, the applicant referred the matter to her legal representatives. The applicant lodged a complaint with the Motor Industry Ombudsman of South Africa. In its report, MIOSA resolved that as the vehicle was repaired, it could not support the applicant’s expectation that the supplier must cancel the deal.
Application: The applicant brought an application for an order for the delivery of a new Volkswagen Polo Vivo motor vehicle without latent or patent defects, that the recommendation made by the Ombudsman be set aside, and, if specific performance cannot be tendered, that the sale agreement between the parties be cancelled and that the applicant be refunded.
Discussion: The respondents have raised as a preliminary point, being the applicant’s failure to comply with section 69(d) of the Consumer Protection Act 68 of 2008. They contend that the applicant is non-suited on amongst others, the basis that she approached court for the relief sought in the notice of motion without first exhausting all the other remedies available to her in terms of national legislation. Mr Olivier who appeared on behalf of Volkswagen, submitted that the implication of section 69(d) is to require a consumer to first exhaust all the internal remedies before approaching the civil courts. He further submitted that the “other remedies” referred to in section 69(d) would include those provided in sections 70 and 71 of the CPA, like initiating a complaint with the National Consumer Commission, approaching the Consumer Court and approaching the National Consumer Tribunal. Mr Olivier further submitted that the import of section 69(d) of the CPA is to limit the rights of a consumer to approach a court for redress, before exhausting the remedies in section 69(a)-(c). The obligation imposed on a litigant to first exhaust internal remedies before approaching the courts is not an unnecessary burden. It serves an important purpose of ensuring that the administrative dispute resolution mechanism provided for in the relevant legislation is not undermined.
Findings: It is plain from the scheme of the CPA, that the CPA contains a comprehensive dispute resolution mechanism to resolve disputes between consumers and suppliers. The legislative intention behind the dispute resolution scheme of the CPA must have been that disputes between consumers and suppliers must, as the first port of call, be resolved through the dispute resolution mechanism provided for in the CPA. It is only in cases where the CPA does not provide a remedy or, after exhausting all the internal remedies, that a consumer will be entitled to approach the civil courts for redress. Allowing a consumer to approach the civil courts for redress in circumstances where the CPA provides redress, without first resorting to the dispute resolution mechanism in the CPA, will undermine the scheme of the CPA. Save for lodging a complaint with MIOSA, the applicant did not refer the matter to the Consumer Tribunal, which is the next level of the internal remedies provided for. Once it is so, then it follows that the applicant did not exhaust all the internal remedies provided for in the CPA before approaching this court for redress. That is precisely the type of conduct that is prohibited in terms of section 69(d) of the CPA. Consequently, the applicant’s right to approach court for redress is limited by section 69(d) of the CPA. She may not approach court until she has exhausted all the remedies in the CPA, including those referred to in sections 70 and 71.
Order: The application is refused for failure to exhaust all the internal remedies provided for in the CPA.
RAMAEPADI AJ
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Legal Practice Council v Youngman [2024] ZAGPPHC 482
PROFESSION – Legal Practice Council – Misconduct complaints
Large number of complaints against attorney over multiple years – Misappropriated trust funds – Failure to notice obvious trend – Response to complaints was perfunctory – Fell short of what is expected of LPC as regulator of profession – Numerous claims against Fidelity Fund – Would have been far fewer claims had LPC been diligent in attending to multiple complaints – Attorney to be removed from roll of legal practitioners.
Facts: Mr Youngman (respondent) was admitted and enrolled as an attorney in 2013 and commenced practising as a sole practitioner under the name and style of “Youngman Attorneys Incorporated” early in 2014. The primary case of the Legal Practice Council (LPC) is that the respondent misappropriated trust funds. The respondent received instructions in various transactions pertaining to the sale of immovable property. Clients deposited funds in the respondent’s trust account, for purposes of implementing the property transactions. He would receive instructions in a property related transaction. Funds would be deposited into his trust account. He would not carry out the instruction. He would also ignore queries in relation to the instruction. There is an instance of the respondent threatening a client after the client had complained to the LPC. The founding affidavit identifies more than 20 complaints concerning the respondent.
Application: The LPC (applicant) seeks to have the respondent struck from the roll of legal practitioners. The respondent is not admitted to practice as a conveyancer. The LPC contends that the respondent contravened the Legal Practice Act, the Rules and the Code of Conduct in holding himself as a conveyancer and purporting to practice as such. The complaints against the respondent are not limited to property transactions. They include instances where the respondent was appointed executor of deceased estates. More than two-thirds of the complaints, however, pertain to property-related transactions. Mr Reddy, an official at the LPC, established that the respondent’s firm had a trust account deficit in the amount of R6,948,758.24. He expressed the view that the deficit was likely higher because he did not investigate all trust creditors.
The role of the LPC: The LPC, as part of making its case against the respondent, stated that the Legal Practitioner’s Fidelity Fund, which is used to reimburse persons who suffered pecuniary loss because of theft by a legal practitioner, “is at risk due to the apparent failure by the First Respondent to account for trust funds.” The LPC is correct to raise this concern. The LPC, however, contributed to the risk. The LPC failed to take appropriate measures concerning complaints about the respondent over multiple years. The respondent’s mischief would have been arrested much earlier had the LPC effected proper policing of the respondent. Members of the public lodged complaints with the LPC concerning the respondent over several years. There were almost monthly complaints about the respondent. There are instances of multiple complaints on the same day. The LPC registered all these complaints. The LPC’s response to the complaints was perfunctory and fell short of what is expected of the LPC as a regulator of the profession. See the table and chronology at para [29] which illustrates the LPC’s failure to properly police complaints against the respondent.
Findings: The court was informed that the LPC has some 23 officials who deal with complaints lodged against legal practitioners. It is a surprise that the responsible officials at the LPC failed to notice an obvious trend given the large number of complaints against the respondent. It is a concern that the LPC, given the many complaints against the respondent at that time, was prepared to indulge the respondent by not subjecting him to a disciplinary process only because a complainant had agreed to settle with the respondent. The LPC was aware of other complaints against the respondent at that time. The LPC brought this application in 2023. The LPC had the opportunity to halt the conduct of the respondent at least in 2021. The court was informed during the hearing that there are 51 claims against the respondent with the Legal Practitioners’ Fidelity Fund. All but one of the claims pertain to the respondent purporting to act as a conveyancer. The Legal Practitioners’ Fidelity Fund has paid R23,491,476.81 as a result of claims made against the respondent. There are several contingent claims valued in the millions of Rand. There would have been far fewer claims had the LPC been diligent in attending to the multiple complaints concerning the respondent.
Order: The name of Ashley Michael Youngman is to be removed from the roll of legal practitioners.
MOOKI J (MNCUBE AJ concurring)
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FAMILY – Maintenance – Foster child – Legal duty to maintain – Child’s best interests paramount
Incomplete adoption proceedings does not absolve respondent’s obligation towards minor child – Child formed a strong bond with both parties – Faithfully performed functions and discharged duties even after parties divorced – Respondent de facto adopted child – Legal duty established – Court a quo erred in absolving respondent of his legal duty – Appeal upheld.
Facts: The appellant and the respondent were married to each other. Their marriage was dissolved. The appellant volunteered at a child and youth care centre, where she met an abandoned child, LX. LX is orphaned, and her biological parents are deceased. The minor child was 18 months old and still a baby at the time. The parties decided to adopt LX. LX formed a bond with the appellant and the respondent as her parents. The parties jointly commenced the process of adopting LX at the Children’s Court. They were told by the Children’s Court that they first needed to foster LX to monitor if they were suitable parents before the adoption could be finalised. Whilst the adoption process was pending, the parties took in the minor child as foster parents with the intention of continuing the adoption process until it was completed. Unfortunately, before the adoption process could be completed, the marriage relationship between the parties broke down. The appellant and the respondent signed a settlement agreement. The Regional Court granted a decree of divorce in the absence of the appellant. The decree did not incorporate the settlement agreement signed by the parties. Even though there was no court order requiring the respondent to pay maintenance, he continued to make child support payments for the minor child after the divorce was finalised. After the appellant discovered that the prayer for maintenance was not included in the divorce order, she attempted to have this rectified at the Regional Court but was not assisted. Meanwhile, in January 2023, the respondent stopped paying maintenance for their foster care daughter.
Appeal: The court dismissed the appellant’s claim for maintenance of her foster care child, LX. The magistrate found that the respondent did not adopt LX, and as such, there was no legal duty upon the respondent to maintain LX. Consequently, the magistrate dismissed the appellant’s claim against the respondent for the maintenance of LX. It is this order that the appellant seeks to assail.
Discussion: The fact that the adoption proceedings were not concluded, does not absolve the respondent of his obligation towards the minor child. Significantly, the child was in the foster care of the appellant and the respondent. The child formed a strong bond with both parties. The respondent faithfully performed the functions and discharged the duties of a father in his dealings with the minor child. Even after the parties were divorced, he continued to pay maintenance for the minor child. The commitment he made in the settlement agreement and in the divorce summons attests to the relationship between the daughter and father. The respondent regarded the minor child as his own. The minor child regarded the respondent and the appellant as her parents. On the evidence presented, the respondent de facto adopted the minor child and considered her as her own. He supported and nurtured the child during the marriage and even after the marriage was dissolved. He maintained a father-daughter relationship during the marriage and even after the marriage was dissolved. He committed to retaining his parental rights and responsibilities towards the minor child. In the settlement agreement, he agreed that the minor child would primarily reside with the appellant and that he would have reasonable contact rights with the child, including, but not limited to, every alternate weekend and alternate school holiday.
Findings: The legal duty for the respondent to maintain his child has been established. The respondent voluntarily assumed this responsibility. From the totality of the evidence, the respondent has a legal duty to support LX. The court a quo erred in finding that the respondent’s commitment to serving the minor child’s best interest was only rooted in affection, emotional attachment, fondness and care that the first respondent had towards the minor child concerned. The respondent’s legal duty to support LX was not based on his affection and fondness towards the child but on a freely assumed legal obligation to do so. Regarding the question of maintenance pending the outcome of the maintenance enquiry, the respondent has not paid maintenance since January 2023. There is no reason why he should not immediately be ordered to pay maintenance at the amount he agreed to pay, pending the outcome of that enquiry. The respondent never suggested that he was unable to pay, he simply asserted that he was not obliged to do so. There is nothing to indicate that he is unable to meet his commitment.
Order: The appeal is upheld. The decision of the court a quo is set aside and replaced. The respondent is legally liable to support the minor child, LX. The matter is referred to the maintenance court for a maintenance enquiry in terms of section 10 of the Maintenance Act.
LEKHULENI J (BISHOP AJ concurring)
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