The National Consumer Commission v Univision Services Association NPC and Others

The National Consumer Commission, an organ of state established under the Consumer Protection Act 68 of 2008 (CPA), received hundreds of consumer complaints against several entities operating in the timeshare points industry. After investigation, the Commission referred the complaints to the National Consumer Tribunal under s 73(2)(b) of the CPA, alleging prohibited conduct such as unconscionable conduct, misleading marketing, and fraudulent schemes. Extensive affidavits were filed. Before the Tribunal hearing commenced, the Commission withdrew the referral in terms of the Tribunal regulations, without tendering costs. The respondents (collectively referred to as Univision) applied to the Tribunal for a costs order against the Commission, alleging that the referral was frivolous and vexatious. The Tribunal held that it lacked the power to award costs against the Commission under s 147 of the National Credit Act 34 of 2005 (NCA) and ordered each party to bear its own costs. Univision successfully reviewed this decision in the Gauteng Division of the High Court, which held that the Tribunal did have power to award costs under the regulations. The Commission appealed to the Supreme Court of Appeal.

The appeal succeeded with costs. The High Court’s order was set aside and replaced with an order dismissing the application to review and set aside the Tribunal’s decision, with costs.

This case clarifies and confirms the limits of the National Consumer Tribunal’s power to award costs, particularly in proceedings initiated by the National Consumer Commission. It reinforces the principle that subordinate legislation cannot expand statutory powers and aligns consumer law jurisprudence with Constitutional Court authority on analogous provisions in competition law. The judgment protects regulatory bodies from adverse costs orders when acting in the public interest, unless expressly authorised by statute.