Western Cape Consumer Affairs Tribunal Vacancies: process, shortlisting & assessments

Meeting report

Opening remarks

The Chairperson opened the session by expressing delight at reconnecting with Members after the festive break. She welcomed the Department of Economic Development and Tourism (DEDAT) officials, specifically acknowledging Mr Ashley Searle and the service provider from Moore SA Forensic Services. The Chairperson acknowledged the valuable assistance Moore SA Forensic Services provided, achieving positive probity outcomes. She noted the absence of the Head of Department and accepted his apology for being unable to attend the meeting.

Following these introductory remarks, the Chairperson suggested that Members take the opportunity to introduce themselves, followed by introductions from the Department and the service provider.

Members of the Committee introduced themselves and shared their well-wishes.

Mr Ashley Searle, Director: Western Cape Office of the Consumer Protector, conveyed gratitude to the Committee for making itself available for the crucial process. He offered prosperous greetings for the 2024 financial year to all participants.

The Chairperson extended a warm welcome to all participants, expressing gratitude for their presence in the productive session. She acknowledged the hard work invested in the process and specifically highlighted the Committee's Procedural Officer, Ms Z Adams, for her dedicated efforts.

The Chairperson proceeded to outline the rules of engagement for the virtual meeting. Participants were reminded to mute themselves at the beginning to minimise background noise. Any issues or points of order were encouraged to be raised in the chat function of Microsoft Teams. Participants were advised to keep their video and audio off to enhance connection quality. When speaking, they were requested to unmute themselves and enable video, while afterwards, switching off both to maintain efficiency.

After a brief reassurance of the participants' familiarity with virtual meeting protocols, the Chairperson introduced the agenda. The meeting would commence with a briefing by the Department of Economic Development and Tourism on the interview and selection process for the Western Cape Consumer Affairs Tribunals. The Chairperson emphasised that this presentation was open to the public as it did not contain personal information about the candidates.

Following the presentation, the session would transition to a question-and-answer period. Subsequently, there would be a briefing by Moore SA Forensic Services, with a consideration of whether the discussion would be held in-camera. The Chairperson reiterated that, for the time being, the session was open to the public and handed over to the Department for the briefing.

Briefing by the Office of the Consumer Protector on Programme 4: Business Regulation 2024

Mr Ashley Searle, Director: Western Cape Office of the Consumer Protector, expressed his gratitude to the Chairperson for the opportunity, opting to keep his camera off due to connectivity challenges in his office space. Before delving into the presentation, he extended appreciation to the Committee and the service provider for their commitment to a demanding and challenging process.

Mr Searle provided an overview of the process, explaining that the previous financial year's attempt to schedule interviews was hindered by unfavourable probity report feedback, leading to a decision to restart the process. This financial year, the results of the probity report have shown improvement. Mr Searle anticipated the conclusion of the process by Thursday and Friday, with the submission to the Minister for potential tribunal member appointments.

He emphasised the significance of the Tribunal and appointing individuals of good character and expertise. Mr Searle highlighted the importance of the Tribunal for both the office and the Department, underscoring its impact on the citizens and business community in the Western Cape.

The presentation included an introduction to the office, legislative schemes, the organogram, the history of the Tribunal, and the process followed, covering advertisements and nominee status. Mr Searle explained the constitutional listing of consumer protection as a concurrent legislative matter, with both national and provincial government playing roles. He discussed the national and provincial legislation, outlining their respective functions and responsibilities.

He detailed the National Consumer Protection Act of 2008 and the provincial Western Cape Consumer Affairs Act of 2002, explaining their roles in establishing norms, standards, and the authority to pass legislation on consumer protection issues. Mr Searle also discussed the inspection of imported products and the challenges faced in collaborating with national agencies.

He provided insights into the Western Cape Consumer Business Practices Act of 2002, highlighting its role in establishing the office as a consumer protection agency and its focus on alternative dispute resolution. He emphasised the importance of the Tribunal for strengthening its capabilities and allowing for a broader role.

Consumer education emerged as a key aspect of the Tribunal’s work, with the team conducting information sessions, workshops, and outreach programmes. Financial literacy programmes, including initiatives with the National Youth Development Agency, were mentioned. Mr Searle acknowledged the cooperation with various partners, including national and provincial bodies, non-governmental organisations (NGOs), and community structures, to address consumer protection matters effectively. The organogram of the office, detailing its structure and functions, was presented. He continued his presentation, providing additional insights into the Western Cape Consumer Fees Act. He reiterated the Act's role in investigating unfair business practices, offering alternative dispute resolution (ADR) services, and facilitating adjudication services through the Tribunal.

Mr Searle delved into the history of the Tribunal, explaining its establishment in 2012 and subsequent operationalisation. He highlighted the previous Tribunal members, including Adv Robbie Vincent, Adv Mandla Mdludlu, Ms Jackie Lange, and Mr Herman Wessels. The appointment of alternate members, Mr Theo Burrows and Mr Selby Tindleni was emphasised as a strategic measure.

Mr Searle then outlined the challenges faced in 2016, leading to the temporary cessation of the Tribunal's operations. Resources were reallocated to address pressing needs in other areas. However, in late December 2021, approval was obtained to reestablish the Tribunal, initiating the process of finding new members in the 2022/2023 financial year. Challenges arose with the probity reports, delaying the finalisation of appointments.

Expressing eagerness to operationalise the Tribunal, Mr Searle outlined the benefits it would bring. As an adjudication body, the Tribunal would provide finality to disputes through an efficient and cost-effective process. He highlighted the advantages for both consumers and businesses, especially SMEs, in utilising the Tribunal for dispute resolution.

Moving on to the provisions of the Consumer Fees Act related to the Tribunal (sections 14, 15, and 16), Mr Searle explained that the responsible Minister must establish one or more consumer affairs tribunals for the province. He clarified the composition of the Tribunal, consisting of a chairperson with legal expertise, and three additional members with specialist knowledge or experience in consumer advocacy, economics, industry, or commerce.

The Director discussed the possibility of establishing more than one Tribunal in different areas but clarified that, for their purposes, they decided on a single Tribunal operating within the Cape Town area. He emphasised the importance of appointing alternates for each member to ensure continuity and efficiency.

Mr Searle’s presentation continued to focus on the nomination process for the Consumer Affairs Tribunal. He expressed optimism about finding suitable members, including a legal expert and individuals with expertise in various relevant areas.

To ensure transparency, Mr Searle detailed the process of soliciting nominations from the public, which involved placing advertisements in print media and the provincial Gazette. The public was given 21 days to provide nominations, and the Department engaged in a mini roadshow to encourage participation and nominations. He highlighted the success of this approach, with 22 nominations received, indicating an improvement from the previous year.

After receiving nominations, the names were published in print media, and citizens were invited to comment on the nominees. Mr Searle emphasised the budget constraints but mentioned that a probity exercise was conducted to vet the nominees. He assured the Committee that the background checks were thorough and that most candidates received positive feedback.

Mr Searle discussed the upcoming interview process, noting that interviews would be open to the public. The responsibility for conducting the interviews had been delegated to him by the provincial Minister. Once the interviews were completed, the Committee would make recommendations to the Minister, who would then make the final appointments. The selected members would be required to take an oath or solemn affirmation before the responsible Minister.

Regarding remuneration, Mr Searle explained that tribunal members would receive payment based on the tariff set by National Treasury. He discussed disqualification criteria for tribunal members, which included being a non-South African citizen, a public servant, or having certain legal or financial issues.

Mr Searle touched on the Tribunal's decision-making process, highlighting that a majority decision would suffice. He also emphasised the importance of members disclosing conflicts of interest and recusing themselves when necessary.

The presentation further covered the quasi-judicial functions of the Tribunal, explaining that it would be responsible for evaluating evidence and deciding whether unfair business practices had occurred. The Tribunal could also handle cases referred by the National Consumer Commission.

Mr Searle concluded his presentation on the Consumer Affairs Tribunal nomination process. He provided a summary of the steps taken, starting from the public nomination call to the withdrawal of some nominees, and ultimately presenting the current list of nominees available for interviews.

Key points from the presentation included:

Nomination Process:

The public nomination process was conducted, and the Department received 22 nominations. These nominations were diverse, including legal experts, individuals with commerce and industry experience, and consumer advocates.

Public Engagement:

The Department engaged with citizens through a mini roadshow, radio broadcasts, and other outreach programs to encourage nominations. Despite budget constraints, efforts were made to cover various regions within the province.

Budgetary Considerations:

The Department faced budgetary constraints, and the advertising costs for the public nomination call were around R250 000. The budget for this year was set at R400 000 covering publications and the probity exercise.

Withdrawals:

Five nominees withdrew from the process for various reasons, such as time constraints, business interests, and personal challenges.

Remaining Nominees:

After withdrawals, the Department presented the current list of nominees available for interviews, categorising them into legal and non-legal expertise.

Interview Process:

The next steps include conducting interviews with the identified members. The selection committee will then make recommendations to the Minister, who will decide on the final appointments.

Training Session:

Once appointed, the Tribunal members will undergo a training session, covering both legislative provisions and procedural aspects. The Tribunal is expected to start considering settlement agreements from March onwards.

Adjudication Process:

From the new financial year, starting in May 2024, the Tribunal is expected to adjudicate disputed matters brought forward by the office, providing a platform for enforcing consumer protection rights.

Mr Searle expressed gratitude for the opportunity to present and concluded the session, acknowledging the importance of the Tribunal in enforcing consumer protection rights within the Western Cape.

(see attached for full presentation)

Discussion

The Chairperson appreciated Mr Searle's comprehensive presentation, inviting questions in rounds for clarity. Members were requested to ask a maximum of three questions.

Mr A Van der Westhuizen (DA) expressed gratitude to Mr Searle and posed several questions. Firstly, he inquired about the anticipated demands on the Tribunal members' time and whether they were informed about the intended remuneration. He voiced concerns about potential withdrawals if the demands or vision did not align with the members' expectations.

Secondly, Mr Van der Westhuizen asked about the availability of a budget for the Tribunal, covering training and the possibility of members travelling to other provinces to learn from experienced tribunals.

He also raised concerns about administrative support, wondering if one person could handle the administrative demands and if there were plans to address this potential challenge.

Ms N Nkondlo (ANC) had network challenges and was requested by the Chairperson to submit her questions via the chat feature.

The Chairperson sought clarification on the distinction between the functions of the Tribunal and a potential board overseeing consumer protection in the Western Cape. Additionally, the Chairperson inquired about the qualities sought in candidates for ordinary and additional members of the Tribunal, particularly emphasising the importance of legal expertise.

Further, the Chairperson raised questions regarding the ranking process for candidates, seeking clarity on how candidates are assessed and ranked for positions. The Chairperson proposed addressing these queries before proceeding to further questions.

Responses

Mr Searle addressed several questions raised during the session. Regarding the anticipated demands on Tribunal members' time, he emphasised a gradual start in the first year (2024) to allow for adjustment and understanding of processes. He mentioned identifying specific cases for prosecution and assured that the workload would not overwhelm members initially.

Regarding remuneration, Mr Searle acknowledged its importance and revealed that the budget allocated for the Tribunal covers remuneration based on the identified number of cases. While the exact remuneration framework was not provided to nominees, he highlighted the commitment to follow the provincial treasury tariff.

Concerning the budget, Mr Searle recognised its significance and explained the Department's efforts to secure additional funds. He mentioned engagement with external entities, such as the National Consumer Commission and the National Consumer Tribunal, to provide training without extra charges, helping manage costs.

Regarding administrative support, Mr Searle discussed plans to register resources within his space and the Department to address the need for administrative assistance. He mentioned the possibility of hiring an assistant director and exploring the use of graduate legal interns to support the Tribunal.

Responding to questions about oversight, Mr Searle clarified that no board oversees the Tribunal; instead, it reports directly to the Minister. He emphasised that the qualities sought in members extend beyond legal expertise, with an emphasis on a diverse skill set including consumer advocacy, industry, commerce, and business experience.

Lastly, in response to the question about ranking members, Mr Searle mentioned the use of a scoring sheet to assess candidates. He proposed a recommendation for four primary members and four alternates, with specific rankings for each role. The alternates would step in if the original appointees were unavailable.

Mr Searle continued by expressing the importance of achieving a balance in the Tribunal's composition, combining legal expertise with a diverse skill set among its members to ensure effective functioning. The Chairperson of the Board has legal expertise.

Mr Searle responded to a question posed by Ms Nkondlo. Concerning the period when the Tribunal was not operational, he explained that the office continued to function by relying on alternative dispute resolution. Disputes were resolved through the office's efforts. In cases that required Tribunal intervention, matters were referred to the National Consumer Commission, which, in turn, advanced some cases at the National Consumer Tribunal.

Addressing the alignment between national and provincial legislation, Mr Searle highlighted an ongoing process to revise the Western Cape Consumer Affairs Act to ensure alignment with national legislation. The aim is to avoid inconsistencies and contradictions between the two levels of legislation. He emphasised that the Constitution provides a framework for determining precedence, with national legislation generally taking precedence in consumer protection matters.

Regarding the collaboration with the National Youth Development Agency (NYDA), Mr Searle clarified that the partnership focuses on consumer affairs within the context of a specific NYDA programme. This programme aims to empower potential business operators, including parolees or release prisoners, with an understanding of consumer protection laws. The collaboration involves educating attendees on the rules and regulations related to consumer affairs when operating a business.

Regarding mechanisms to mitigate political and business interests influencing the Tribunal, Mr Searle referred to legislative provisions requiring Tribunal members to disclose any conflicts of interest and recuse themselves when necessary. He expressed confidence in the selection committee's thorough evaluation of nominees' skills, expertise, and competence to prevent potential conflicts of interest. Additionally, Mr Searle emphasised the Minister and the Department's oversight responsibility in managing the Tribunal's functioning and addressing any issues that may arise to ensure its impartiality.

Further discussion

The Chairperson acknowledged Ms Nkondlo's internet connectivity issues and requested Mr Searle to email her the responses provided during the session. This accommodation was made due to Ms Nkondlo's challenges with loadshedding.

Mr Van der Westhuizen raised several questions. Firstly, he mentioned Section 16 of the legislation, highlighting that individuals associated with political parties may not be appointed to the Tribunal, addressing concerns about political influence.

Moving to the interview and appointment process, he sought clarification on whether individuals listed for one position could also be eligible for other positions and what criteria would be considered. Additionally, he inquired about the logistics of Tribunal members' physical attendance, whether they would need to travel to Cape Town and the infrastructure that would be used for Tribunal sittings. Specifically, he sought information on the geographic spread of the Tribunal and the possibility of virtual participation in cases.

Mr G Brinkhuis (Al Jama-ah) inquired about the marketing budget allocated to the Consumer Protector's office. Specifically, he sought an indication of the amount of money budgeted for marketing activities.

The Chairperson sought clarification on the recommendation process for the Tribunal members, specifically asking if the panel recommends one candidate for the chairperson position and another for the alternate, as well as three candidates for the next three Tribunal members and three additional alternates.

Additionally, the Chairperson inquired about the marketing strategy, asking Mr Searle to find out how they learned about the vacancy from the applicants. The aim was to understand the effectiveness of different advertising channels and concentrate efforts on the most successful ones.

Mr Van der Westhuizen expressed concern about the suitability of alternates, particularly in the scenario where the chairperson is absent. He questioned whether a regular member, familiar with the affairs of the Tribunal, might be better positioned to lead the meeting than an alternate who may not have been involved before. Additionally, he raised the question of whether someone with a legal background might be included under the list of other members.

The Chairperson inquired about the potential conflict of interest for applicants currently members of entities such as the Gambling Board or the liquor authority in the Western Cape. She expressed concern that these entities are designed to protect businesses rather than consumers and questioned whether such affiliations might generate conflicts of interest for applicants seeking roles in the Tribunal.

Further responses

Mr Searle began by addressing a query about the eligibility of the chairperson nominee to also serve as an ordinary member. In his opinion, there should be no hindrance to such an appointment, provided the individual possesses legal qualifications and expertise in the specified areas outlined in the Act – namely, industry expertise, commerce or business. He highlighted instances where nominees, aside from their legal background, demonstrated exposure to commercial business and consumer advocacy, making them suitable for consideration as ordinary members.

Mr Searle shared an example of a nominee who holds the dual status of a legal expert and an academic, emphasising the alignment with industry expertise. Referring to past appointments, he cited Adv Robbie Vincent as the chairperson and Adv Mandla Mdludlu as an ordinary member due to their expertise in industry, business, and consumer advocacy.

Responding to Ms Nkondlo’s question on influence, Mr Searle mentioned legislative exclusions for political party members. Additionally, he discussed a comprehensive probity exercise, covering membership in political structures and board appointments. The exercise identified potential conflicts of interest, dovetailing with a previous question about individuals concurrently serving on gambling boards or legal authorities. Mr Searle acknowledged the need for careful evaluation based on the nature of the functions performed.

Regarding concerns about potential conflicts of interest, Mr Searle expressed less apprehension about members of gambling boards or legal authorities, emphasising the importance of evaluating the specific functions and structures involved. His primary concern for nominees was their availability and ability to effectively fulfil the Tribunal's responsibilities, especially considering the demands on their time.

Addressing the logistical challenge of hearings in various locations within the Western Cape, Mr Searle outlined the measures taken to ensure flexibility. The procured equipment is adaptable for use in different provinces, and positive interactions with other government departments at provincial, national, and local levels provide access to resources in various locations, enhancing the Tribunal's capacity to conduct hearings as needed.

Mr Searle further discussed the Tribunal's commitment to responsiveness in adjudicating matters outside the city. Acknowledging the potential inconvenience for citizens and businesses required to travel, he emphasised that the operational budget includes provisions for travel expenses. The objective is to avoid inconveniencing parties by ensuring the Tribunal is equipped to travel to locations where its services are needed. Mr Searle expressed the hope that, with the assistance of the Members, the Tribunal could lobby for a more comprehensive budget to facilitate an expanded service rollout.

Regarding the marketing budget for the upcoming financial year, Mr Searle outlined a budget of R700 000, for the year 2024/25, dedicated to marketing and education. While acknowledging its limitations, he highlighted the Tribunal's proficiency in leveraging resources, particularly through engagements with media stakeholders, community radio stations, and the National Consumer Commission. Mr Searle emphasised that despite the budget constraints, the Tribunal maximises its impact and explores additional avenues for outreach.

Addressing the question of alternates, Mr Searle supported the idea of having a main nominee and an alternate for each position, not only for the chairperson but also for the other Tribunal members. In his view, this approach would provide flexibility and ensure a backup for each role. He also expressed agreement with the suggestion to inquire about how nominees became aware of the nomination process.

Recognising the potential limitations of relying solely on specific publications, Mr Searle proposed seeking input from nominees on the effectiveness of various communication channels. Additionally, he suggested exploring the possibility of involving the Tribunal's research unit in conducting a more thorough analysis of outreach methods to enhance future nomination campaigns. Mr Searle assured the Members that if any questions remained unanswered, they should bring them to his attention for further clarification.

Further discussion

The Chairperson expressed satisfaction with the information provided by Mr Searle and invited Members to pose any final questions before proceeding.

Mr Van der Westhuizen raised concerns about potential uncertainties regarding the demands placed on individuals occupying positions within the Consumer Tribunal. Drawing attention to the issue of backlogs observed in other tribunals within the Western Cape, he voiced his apprehension that the success of the Tribunal could inadvertently lead to a negative impact if constrained by a limited budget of only two sessions per month. Mr Van der Westhuizen sought clarification on the experience of other provinces, specifically in managing backlogs with a similar frequency of sessions.

Additionally, he inquired about the selection criteria and how they differ from those of the Small Claims Court. Mr Van der Westhuizen raised the possibility of overlapping responsibilities and encroachment on each other's domains between the Consumer Tribunal and the Small Claims Court, especially concerning case limits and backlogs. He sought insights into the potential risks and distinctions in their respective roles.

The Chairperson expressed gratitude for the last question in the current round and announced that Mr Searle would take over before proceeding to the next segment of the program.

Further Responses

Mr Searle acknowledged the valid concern Mr Van der Westhuizen raised regarding the potential influx of cases that the Consumer Tribunal might face, given its effective functioning. He acknowledged the possibility of the Tribunal becoming a victim of its own success, where citizens might increasingly prefer it over the small claims court or civil courts, leading to a surge in case numbers.

In addressing this concern, Mr Searle drew on historical data, emphasising that there is a pre-tribunal step in the form of the alternative dispute resolution process. He explained that approximately 60% of the matters received by the Tribunal were resolved through alternative dispute resolution, even when the caseload was significant. He highlighted that not all disputes made it to the Tribunal, as some lacked merit or prospects of success based on facts and legislation.

Mr Searle reassured that, based on past experience and evaluations in other provinces, there has not been an immediate backlog issue. He pointed out that the National Consumer Tribunal, dealing with systemic issues affecting all provinces, is an exception to this trend. He expressed optimism that any potential backlog could be managed effectively through the alternative dispute resolution process in the first year or so.

Regarding the impact on the Small Claims Court, Mr Searle emphasised that the court would retain its role and limitations, with citizens having the freedom to choose their preferred adjudication method. He anticipated that the two processes—Consumer Tribunal and Small Claims Court—would complement each other rather than diminish the importance of the Small Claims Court. Mr Searle concluded by expressing his hope that his response addressed some of the concerns raised, while acknowledging the unpredictability of future events.

Briefing by Service Provider on the Outcomes of the Probity Assessments – Closed Session

In the interest of time, the Chairperson proposed swiftly moving on to the next portion of the programme, which involves a briefing by Moore SA Forensic Services on probity outcomes. The Chairperson then raised the question of whether this part of the meeting, focusing on probity results, should be closed. The Chairperson argued that probity reports contain confidential and sensitive information about the candidates, and as such, there is a reasonable and justifiable cause to close this portion of the meeting.

The Chairperson referred to Standing Rule 72, which allows for a meeting or a part of it to be not held in camera (closed to the public) for valid reasons. The Chairperson invited Members to consider and discuss this proposal before proceeding.

Mr Van der Westhuizen submitted a motion that the meeting should be a closed session until decided otherwise.

Mr I Sileku (DA) seconded the motion.

As a result, the session of the meeting transitioned into a closed session.