Consumer Tribunal fines Cell C R500k for unfair, unreasonable and unjust conditions

The National Consumer Tribunal has fined cell phone service provider Cell C R500 000 for unfair, unreasonable and unjust conditions in a contract with a consumer. Cell C also has to refund the consumer and pay her legal costs in what the Tribunal described as a matter between “David and Goliath”.

A consumer, Julie Williams, contacted the Cell C call centre in May 2022 with a request to increase the monthly limit on her cellular phone contract and activate an international roaming service before she travelled to France.

She asked that the limit on her contract be increased from R1 785 to R3 785 and the agent read Cell C’s terms and conditions to her before activating the international roaming service. Williams then travelled to France and the day after she landed, Cell C notified her in a text message that she exceeded her limit and therefore she would no longer have access to international roaming, calling or other premium-rated services.

Williams then bought a sim card in France and used that for the rest of her trip. On her return, Cell C sent her a bill of R11 265.32. The bulk of the bill was the cost for international roaming. She objected to the amount on the bill and pointed out that it exceeded the limit she had set.

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Cell C debited consumer’s account although she refused to pay extra amount

Although Williams stated that she refused to pay the full amount, Cell C debited the full amount from her bank account. When Williams’ attorney wrote to Cell C to request a refund, Cell C said she was told about the high cost of international roaming before activating the service and that Cell C’s terms and conditions were read to her during the telephone call.

According to Cell C’s terms and conditions there may be delays in imposing limits for its international roaming service and Cell C cannot guarantee the accuracy of the set limits. Therefore, Cell C denied that it breached any provision of the Consumer Protection Act (CPA) and confirmed that Williams was liable for the full amount.

Williams then took her complaint to the National Consumer Commission that issued a notice of non-referral and granted Williams leave to refer the matter to the Consumer Tribunal. She confirmed that Cell C’s terms and conditions were read to her but said that the implications were not explained to her.

She did not think that her set limit could reach an amount of R11 265.32 and was under the impression that her monthly bill limit had been increased to R3 785 after the phone call. She said she was misled and deceived her and that she was not sufficiently warned about the risks as required by the CPA.

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Charge for one day of roaming unfair, unreasonable and unjust?

Williams believed that the price she was charged for one day of international roaming was unfair, unreasonable and unjust and that Cell C’s dealings with her were excessively one-sided and amounted to an unconscionable exploitation of her as a consumer.

She asked the Consumer Tribunal to make an order that Cell C, in enforcing its terms and conditions, contravened the CPA and that its actions amount to prohibited conduct. Williams also wanted a refund of R7 480.32, the amount over her limit of R3 785.

In addition, she asked the Consumer Tribunal to impose an administrative fine of R1 million on Cell C and order it to pay her legal fees.

Cell C said in its submission to the Consumer Tribunal that while its agent was reading the terms and conditions, Williams was dismissive and remarked that she already heard the terms and conditions in an earlier call.

According to Cell C’s legal representative Williams was specifically and explicitly informed about roaming charges and advised on how to limit them. She was also informed that the billing limit is not guaranteed with roaming and that there may be a delay in the registration of the data charges. When asked whether she agreed and accepted the terms and conditions, she responded in the affirmative.

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Cell C says there was a delay in getting information from foreign service providers

In addition, Cell C said that although Williams was informed that she exceeded her limit and that Cell C could not guarantee the accuracy of her limit, she “wilfully continued to use the roaming service while abroad”.

Cell C experienced a delay in receiving Williams’s billing information from the foreign network operators and said this is why Williams exceeded the conditional limit set. Cell C asked the Consumer Tribunal to dismiss Williams’ application with costs.

However, the Consumer Tribunal was not convinced, saying that it appears that what Cell C meant to convey to Williams during the telephone call was that her limit was set but that the receipt of roaming data from foreign networks could be delayed and might get recorded on her account after she had already been notified that she reached her limit, but Cell C never told her this.

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Consumer Tribunal says Cell C contravened various sections of the CPA

The Consumer Tribunal found that Williams made a case against Cell C and proved on a balance of probabilities that Cell C contravened sections 4(4)(a), 4(5)(b), 54(1)(b), 51(1)(b)(i), (ii) and (iii) and 48(1)(a)(i)(ii) and c(iii) of the CPA and that these contraventions are serious and amount to prohibited conduct.

According to section 4(4)(a) provides that to the extent consistent with advancing the purposes and policies of the CPA, the Consumer Tribunal must interpret any standard form, contract or other document prepared or published by or on behalf of a supplier to the benefit of the consumer so that any ambiguity that allows for more than one reasonable interpretation of a part of such a document is resolved to the consumer’s benefit.

Section 4(5)(b) provides that in any dealings with a consumer in the ordinary course of business, nobody is allowed to engage in any conduct that is unconscionable, misleading or deceptive, or reasonably likely to mislead or deceive a consumer.

According to section 54(1)(b), the consumer has a right to the performance of the services in a manner and quality that consumers are generally entitled to expect when a supplier undertakes to perform any services for or on behalf of a consumer.

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Suppliers are not allowed to make conditions that deprive consumers of their rights

Section 51(1)(b)(i), (ii) and (iii) provides that a supplier is not allowed to enter a transaction or agreement subject to any term or condition if it directly or indirectly waives or deprives a consumer of a right in terms of the CPA or void a supplier’s obligation or duty in terms of the CPA. The transaction may also not be subject to a term or condition which sets aside or overrides the effect of any provision of the CPA.

According to section 48(1)(a)(i)(ii) and c(iii), a supplier is not allowed to offer to supply, supply or enter into an agreement to supply any goods or services at a price that is unfair, unreasonable or unjust or on terms that are unfair, unreasonable or unjust. A supplier can also not require a consumer to waive any supplier liability.

The Consumer Tribunal also noted in its judgment that is notes its displeasure with Cell C’s attempt to paint itself as a mere middleman at the mercy of foreign network operators. “In dealing with its international partners, Cell C has considerable bargaining power, which Williams and other consumers do not have.”