Suppliers hoping to string consumers along until their complaints expire have hit a wall. A recent High Court ruling has confirmed that the National Consumer Commission (NCC) can still step in when a supplier’s misconduct is ongoing – even if years have passed.
The judgment, delivered on 26 October by Judge Denise Fisher in the High Court in Johannesburg, confirms that section 116 of the Consumer Protection Act (CPA) cannot be used as an escape hatch when suppliers delay redress and hope the time-bar will run out.
The appeal stemmed from a National Consumer Tribunal ruling issued on 10 June 2024. The dispute began with a complaint lodged at the NCC about the sale of a motor vehicle, which the Commission later referred to the Tribunal for prosecution.
The Tribunal found that Sandton Repo Cars (Pty) Ltd had breached several key sections of the CPA by:
- using terms that effectively waived consumer rights (section 51);
- selling goods that were not safe or of good quality (section 55); and
- refusing to honour the six-month right to return defective goods at the supplier’s expense (section 56).
The Tribunal declared the conduct prohibited, imposed a R100 000 administrative fine, and ordered the company to refund Erika Mouton R459 900 after collecting the vehicle from her at its own cost.
Sandton Repo Cars did not appeal the merits of those findings. Its fight was focused solely on one issue: whether the complaint was filed too late.
Background to the dispute
According to the court, the events in this matter stretch back to May 2020.
On 13 May 2020, Mouton bought a 2018 Volkswagen Golf from Sandton Repo Cars for R459 900. Before signing, she asked directly whether the car had been in an accident. She was assured – in WhatsApp messages – that it had not.
Just five days later, the car began leaking oil. When she took it to Volkswagen Tableview in October 2020, technicians confirmed the vehicle had been in an accident and deemed it unsafe to drive.
On 8 October 2020, still within the CPA’s six-month return window, Mouton cancelled the deal and demanded her money back. Sandton Repo Cars refused to collect the vehicle and insisted she deliver it to them, saying they needed to inspect it first and calculate “usage” charges.
She escalated the matter to the Motor Industry Ombudsman of South Africa (MIOSA) in January 2021. MIOSA recommended that the car be collected and the refund paid. When nothing happened, the case went to the NCC, which investigated and referred it to the Tribunal.
Appellant’s argument: a time-bar defence
On appeal, Sandton Repo Cars argued that the NCC’s case was out of time. It claimed that section 116 of the CPA works like prescription under the Prescription Act, and the complaint had lapsed by 18 May 2023.
There was some disagreement over whether the complaint had been filed on 12 May or 22 May 2020 because of a clerical rejection and refiling, but the Court found this dispute irrelevant.
The company insisted that time started running as soon as Mouton discovered the oil leak – in their view, on 18 May 2020.
Judge Fisher rejected this line of reasoning. She said that comparing section 116 to prescription “may be superficially attractive” but emphasised that the two operate differently.
Section 116, she noted, deals with conduct, whereas the Prescription Act deals with debts. She also highlighted that section 116 contains none of the mechanisms found in the Prescription Act, including provisions “relating to knowledge of cause and delay and interruption or the deeming provisions”.
The Court found the decisive point to be this: the conduct about which Mouton complained had never stopped. The company still had not collected the car. No refund had been issued. Mouton was still paying instalments on a vehicle she could not use.
Because the refusal to honour the CPA was an ongoing course of conduct, the three-year period under section 116 had not even started. As Judge Fisher put it, “the Tribunal correctly rejected the special plea”.
The appeal was dismissed.
Sandton Repo Cars must refund Mouton R459 900 and pay the R100 000 administrative penalty imposed by the Tribunal.
The NCC’s acting commissioner, Hardin Ratshisusu, said the ruling settles an important point about ongoing misconduct.
“The NCC welcomes this judgment, particularly as it clarifies the jurisdiction of the NCC to investigate and prosecute continuing conduct that remains unresolved. Consumers will now be able to file complaints in circumstances where suppliers unduly delay providing redress, with the hope that such complaints would lapse. This will ensure section 116 of the CPA (regarding time bar) is applied in a manner that fully protects consumers.”
