- The High Court ruled that the Consumer Protection Act does not force consumers to exhaust internal remedies before suing for damages.
- A buyer misled by a car advertisement about Xenon lights has been restored to court after his claim was wrongly dismissed.
- The judgment reinforces access to courts and preserves common-law rights despite reliance on the CPA.
When Keith Ashley Reuben bought a BMW from CMH Datcentre Highway, he believed he was paying for a vehicle fitted with Xenon lights.
That detail mattered to him, and, according to the advert that drew him into the showroom, it was part of the deal. However, it turned out to be false.
After the purchase, Reuben discovered that the car did not have Xenon lights at all. When he raised the issue with the dealership, he was brushed off. The error was described as a “human error” and a “clerical mistake.” There was no offer to fix the problem. There was no offer of compensation.
Reuben went to the Pinetown Magistrates’ Court and sued for R82 078.29, the amount he claimed it would cost to install the lights himself. His case was straightforward. He stated that the dealership’s false representation induced him to purchase the car and resulted in a financial loss. But instead of allowing the matter to go to trial, the magistrate shut it down.
Because Reuben had amended his papers to rely on Section 41 of the Consumer Protection Act (CPA), which deals with false or misleading representations, the magistrate ruled that the court no longer had jurisdiction. Reuben was told he first had to exhaust internal remedies under the CPA before he could approach a civil court. His case was dismissed outright.
“May” does not mean must
On appeal in the KwaZulu-Natal High Court in Pietermaritzburg, Judge M Masipa made it clear that the magistrate’s interpretation of the law was wrong.
“The use of the word may is permissive, not mandatory. The legislature’s choice not to use ‘must’ or ‘shall’ is significant and must be respected,” Judge Masipa said in reference to section 69 of the CPA. The judge stressed that the provision does not erect a barrier to courts but offers consumers multiple pathways to seek redress.
The judgment went further, grounding the interpretation of the statute firmly in constitutional principles. “Where more than one interpretation is reasonably open, the one that best promotes constitutional rights must be preferred,” Judge Masipa wrote, referring to Section 34 of the Constitution, which guarantees access to courts.
Relying on guidance from the Supreme Court of Appeal, the court held that Section 69 “should not lightly be read as excluding the right of consumers to approach the court” and that it “is couched in permissive language consistent with the consumer having a right to choose which remedy to pursue.”
Judge rejects forced CPA detour
The dealership argued that by pleading the CPA, Reuben had effectively chosen a statutory route and was locked into it. The High Court dismissed that submission.
Judge Masipa pointed directly to Section 2(10) of the Act, which makes it explicit that “No provision of this Act must be interpreted so as to preclude a consumer from exercising any rights afforded in terms of the common law.” In plain language, Judge Masipa explained that the CPA does not take rights away, but adds to them.
“The CPA supplements, but does not displace, common-law causes of action,” Judge Masipa wrote. He said Reuben’s amendment did not change the nature of the claim. Before and after the amendment, Reuben sought damages for loss caused by misrepresentation. In the court’s words, “The amendment did not change the remedy sought.”
Describing the misrepresentation as falling under Section 41 did not transform the claim into something that had to be resolved within the regulatory machinery of the CPA. It merely anchored the facts within a statutory standard.
Damages do not belong to tribunals
One of the clearest failures in the magistrate’s reasoning, the High Court said, was ignoring the limits of CPA bodies. “The internal mechanisms have no power to adjudicate and award compensatory damages,” the judgment stated.
Judge Masipa explained that even if Reuben had followed every possible internal process, the result would have been the same. He would have still had to come to court.
The court described the dealership’s argument as forcing consumers into a procedural maze that leads nowhere. Requiring Reuben to approach an ombud, then the National Consumer Commission, then the Tribunal, only to return to court for the same damages claim was described as “a duplicative and constitutionally burdensome procedure.”
In cases involving real financial loss, Judge Masipa said, the civil court is not merely an option. It is the only place where a binding money judgment can be made.
Dismissal declared unlawful
Even if the magistrate had been correct about exhaustion, the High Court held that dismissing the case altogether was indefensible.
The proper approach, if internal remedies were required, would have been a stay. By dismissing the case, the magistrate placed Reuben at risk of prescription and effectively punished him for relying on the CPA in the first place.
“That result sharply offends the constitutional principle of access to courts,” Judge Masipa wrote, adding that the ruling had put Reuben “in a worse position than if he had never invoked the CPA at all.”
The High Court allowed the appeal, overturned the magistrate’s ruling, dismissed the special plea, and ordered that the matter proceed to trial before a different magistrate. The dealership and its sales representative were also ordered to pay the costs of the appeal.
Summing up the central failures of the court below, Judge Masipa said the magistrate had erred by “treating s 69 of the CPA as a peremptory jurisdictional bar,” by “construing the amendment as an abandonment of the common law,” and by failing to accept that “the CPA institutions could not grant the damages the appellant claimed.”
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