Consumer hearing a 'circus'

The National Consumer Commission (NCC) has until tomorrow to prepare heads of argument for a hearing that should have taken place last week, but instead turned into a circus as the commission was not prepared.

Last week, the National Consumer Tribunal convened to hear arguments from MTN as to why a notice issued against it to change its contracts should be overturned. However, the NCC's legal representatives were not prepared to argue, and the matter was postponed to Wednesday.

Despite the NCC's assurances that it would work through the night to prepare, the matter was again not heard. The tribunal has given the commission until tomorrow to sort out its paperwork.

As a result of the delays, MTN's legal team has asked the tribunal to punish the commission by awarding punitive costs against it.

In addition, trade and industry spokesman Sidwell Medupe says minister Rob Davies has written a letter to commissioner Mamodupi Mohlala-Mulaudzi to address concerns over its operations, as it has received “numerous” complaints.

Recently, several tribunal decisions have gone against the NCC, because it did not follow its own procedures. As a result, the merits of the cases have never been tested and no precedent has been set.

In the Vodacom matter, at which the cellular operator challenged the NCC's issuing of a compliance notice, the tribunal found that the commission unlawfully issued a compliance notice, to the wrong party and for a reason not authorised in the law. The tribunal said the notice was not issued reasonably, nor was it procedurally fair.

Similarly, the tribunal recently threw out 45 notices against the City of Johannesburg over the billing crisis, because the NCC did not follow proper procedures before issuing notices to the city.

Robby Coelho, a partner at Webber Wentzel - who represents MTN - says the matter was set down for 11 and 12 July, and the tribunal sent out a notice a month in advance. MTN's legal counsel, as well as a senior advocate and a junior advocate, arrived prepared to argue over whether the compliance notice issued by the NCC was fair as MTN had already changed its contracts to comply with new consumer legislation.

Last August, the NCC issued a notice against mobile operators informing them the terms and conditions contained in consumer contracts did not comply with the provisions of the Consumer Protection Act.

The NCC was set up to ensure compliance with the law, which came into effect last April. In January, the MTN and the NCC argued whether the notice issued to MTN should have been issued to MTN Service Provider, which is the entity that contracts with subscribers.

In March, the tribunal ruled that MTN, SA's second-largest cellular network, could not scupper the notice from the NCC by arguing that it was issued against the wrong legal entity. This paved the way for the merits of the matter - whether MTN's contract was CPA-compliant - to be heard.

Coelho says, during last week's hearings, the NCC's legal team initially advised that it did not know that the matter had been set down as it had e-mail problems. However, it then emerged that the e-mailed notice had been received by a member of the team, after the tribunal pointed out it had a read receipt.

The NCC's legal representatives then admitted to the mail's arrival, but argued that the team member who received it neglected to inform the rest of the advisers, so the arguments could not go ahead, says Coelho.

Coelho says the matter was then adjourned with the NCC promising to prepare heads of argument overnight to be ready to argue the matter the next day. However, on Wednesday a new NCC legal representative appeared without any paperwork to request a postponement as the NCC's chief advisor had been incapacitated through an illness, he says.

MTN's legal team was “taken aback” by the request as the matter has dragged on for ages, at a huge cost, and more money would now have to be spent fighting the notice, says Coelho. “Here we are, running up quite considerable costs.”

Tribunal chairperson Diane Terblanche accused the NCC of turning the proceedings into a “circus”, says Coelho. It gave the commission until tomorrow to submit its heads of argument, after which MTN has a week to respond.

The NCC denies having received the notice as it “was not sent to an official NCC e-mail address and not hand-delivered as stipulated in the rules of the tribunal”.

The mail, it argues, was sent to an intern's private e-mail. However, ITWeb was yesterday advised to send questions via a Gmail address as the commission was having issues with its internal system.

The NCC says the second postponement was requested as the legal advisor was ill, but a doctor's note to this effect was not provided as “an employee's medical condition is confidential”.

According to the commission, Terblanche did not refer to the proceedings as a “circus”. The NCC says, despite an insufficient budget, it is carrying out its mandate sufficiently. The tribunal did not return ITWeb's calls.