WENDY KNOWLER | Tribunal rules in favour of client in Covid-19 cancellation

“The number of new infections, hospital admissions and deaths is higher now than it has ever been since the first case was recorded in our country in March 2020.

“There are currently more than 15,000 people with Covid-19 in hospitals nationally — a third of them on oxygen — placing a considerable strain on health facilities, personnel and equipment.”

That’s what President Cyril Ramaphosa said in his “family meeting” of January 11 2021, banning all social gatherings, apart from scaled-down funerals.

Those surreal stay-home days are seared into our psyches, and their impact is still playing out in many ways.

Many people never got refunds for holidays or events that had to be cancelled due to the lockdowns. Neither consumer nor supplier was to blame for the cancellations, of course, but in many cases it was the consumer who was made to suffer the entire financial loss, being simply refused a refund of deposits or full payments for accommodation or functions.

Last month, the National Consumer Tribunal delivered judgment in a case that arose directly from the president’s declaration on that day in January 2021.

The case was brought by the National Consumer Commission (NCC) against guest house and function venue Misty River, Eikenhof, Johannesburg, and its owner Elzeth Hoogenhout, the commission having investigated a complaint against the venue by Puleng Patience Seoe.

After visiting the venue in late September 2020, Seoe was given a quote of R25,750 for hosting her wedding there. The couple chose the self-catering option for 150 guests, with the venue to supply the ceremony set-up, welcoming drinks, draping, tablecloths, crockery and cutlery, waiters and R750 worth of malva pudding.

On October 3, Seoe formally booked the venue for January 16 2021 and paid a R7,000 deposit. By mid-November, she’d paid the total.

On January 12, the morning after the president’s announcement, Hoogenhout emailed Seoe to inform her that the wedding — in just four days’ time — would have to be postponed.

A month later, Seoe emailed Hoogenhout to say she could not postpone the wedding indefinitely, and asked for a refund of her R25,750.

Suppliers such as the respondents should not be allowed to take money from the public and refuse to refund consumers when failing to provide the service for which the funds were paid

—  National Consumer Tribunal

“The respondents refused to refund the complainant as requested. During the investigation conducted by the NCC, Hoogenhout advised that they would only refund a consumer if the venue had been booked for the specific date by another client.”

In essence, the tribunal found that because Misty River didn’t provide the services on the stipulated day, it was obliged to refund Seoe in full, plus interest, bringing the total to just under R35,000. And that’s not all.

“Given the attitude adopted by the respondents and the unjustifiable refusal to refund the complainant, which resulted in the latter suffering significant financial loss, the tribunal is of the view that an imposition of an administrative fine is appropriate.

“Suppliers such as the respondents should not be allowed to take money from the public and refuse to refund consumers when failing to provide the service for which the funds were paid.”

Many other establishments did just that to many a client and got away with it.

The Consumer Protection Act limits such fines to 10% of a company’s annual turnover during the preceding financial year, or R1m.

It is important that respondents who wish to oppose matters communicate with us immediately so we can guide them on what needs to be done

—  Prenesen Moodley, National Consumer Tribunal

In the absence of any evidence regarding Misty River’s turnover in the preceding year, and taking into account factors including the circumstances in which the contravention took place, the level of profit derived from it, and the degree to which Misty River co-operated with the NCC and the tribunal, a fine of R15,000 was considered to be fair.

“The tribunal has taken into account the trying circumstances that unfolded with the lockdown, during which businesses such as Misty River had to close down during certain stages of the country’s disaster management regulations.

“What counted against the company was their lack of co-operation with the commission.

“The extent of the respondents’ co-operation with the NCC was to respond to its queries dated July 25 2022,” the tribunal said.

“The NCC had to remind the respondents before the queries were responded to.”

Hoogenhout did not attend the online hearing on April 25.

The tribunal’s deputy registrar, Prenesen Moodley, told me Hoogenhout did not file an answering affidavit within 15 days of being served with the application, which was signed and stamped by the business’s manager.

“[She] had an opportunity to exercise her rights and file a condonation for not filing an answering affidavit even after the notice of set-down was issued in March 2023,” he said.

“She elected not to do so.”

Asked to comment on the judgment, Hoogenhout said she and her husband had been ready to participate in the online hearing “but were never sent a link to do so”.

“We ultimately responded with an email that was never acknowledged.”

Moodley said an email had been sent by Imker Hoogenhout just before 11am on the day of the hearing, stating that they were online.

“Our notice of set-down indicated that the start time of the hearing was 10am,” he said.

It was sent to the email address of a case officer rather than the registry mailbox, as indicated on all official notifications, he said.

Moodley confirmed the meeting link had not been sent to Hoogenhout for the hearing because, he said, it was unopposed “and not a single communication was received, despite being provided with the application, the notice of filing or the notice of set-down”.

“In each of those notices the parties were provided with an email address to communicate with, to ensure we could action things efficiently.”

Hoogenhout said the business outsourced tablecloths, runners, napkins, crockery and glasses for events catering for more than 50 guests and had incurred those costs for Seoe’s wedding by the time it was cancelled four days before.

Asked about proof of that outlay, she said: “I’ll take a look.”

Hoogenhout will be refunding the money in instalments of about R3,000 a month.

A last word from Moodley: “It is important that respondents who wish to oppose matters communicate with us immediately so we can guide them on what needs to be done.”

• If you paid for an event or holiday that had to be cancelled because of Covid-19 restrictions, and you’ve asked for a refund but not received a cent, please contact me.

• Contact Knowler for advice with your consumer issues via email at consumer@knowler.co.za or on Twitter @wendyknowler