Does a matter prescribe if it was referred to the NCC?
I lodged a claim with the National Consumer Commission (NCC) in Oct 2011 against a motor dealer in for a defective vehicled I purchased from him. A hearing was held in Feb 2012 and in April 2012 the NCC ruled that the dealer must refund me. The dealer ignored the ruling. I kept following up with the NCC from April 2012 to no avail. Eventually in 2015 the NCC referred the matter to the Motor Industry Ombuds of South Africa (MIOSA). MIOSA also ruled that the dealer must refund me. Again the dealer ignored the ruling. I asked MIOSA to enforce the ruling and they informed me that they did not have statutory powers to enforce the ruling. Instead they referred the matter back to the NCC. I followed up with the NCC countless times between 2015 amd 2017 to no avail. Eventually I contacted a radio station and they followed up on my behalf. The NCC then responded to the radio station and stated that there is nothing they can do as the matter had prescribed and thus the dealer is under no obligation to refund me.
My questions are:
1) Is the case I lodged with the NCC not considered legal action which therefore interrupts the prescription period?
2) If I were to take the matter to court today, would the court have jurisdiction to hear the matter?
3) Can I sue the NCC for dereliction of duty for their failure to resolve the matter in terms of their Act which has now resulted in financial losses for me?
Thanks in advance
Hello Nkhulemeni. Apologies for delay as traffic on Lexum has increased substantially.
1) A complaint to the NCC does not constitute legal action that interrupts prescription as it is not designated as a court of law. It cannot enforce its rulings. However they could have referred the matter to the National Consumer Tribunal which sits as a court, and can enforce its rulings.
2) The National Consumer Tribunal will be appropriate as well as any court of law, but they will be bound by the Prescription Act 68 of 1968. The debt at the time it arose with the decision of the NCC required a summons to be issued and served within 3 years.
3) Was the NCC negligent, and can they be sued? It will depend on what their side of the story is. The correspondence between you and the NCC will be key. Negligence is determined by the courts and we can only advise whether you have a strong case or not, if we have all the facts and correspondence. But at the least the NCC and MIOSA should have advised you to take the matter to the tribunal or the civil courts since they are unable to enforce their rulings.
Here is some additional information on how the Tribunal works: http://blog.mhilaw.co.za/?p=1079.