The report, which had been sent to the NCC on  July 12, was authored by the National Consumer Tribunal (NCT) under the directive of the Department of Trade and Industry (DTI) and forms part of a wider confidential DTI assessment of the NCC’s effectiveness according to Marelize Bosch, head of the Tribunal’s legal services.

The report paints a picture of widespread dysfunction at the commission including a failure to understand and act within the prescripts of the Consumer Protection Act (CPA), the very legislation which gave effect to the creation of the commission.

Consistently, says the Tribunal, the NCC has failed to follow prescribed due process when investigating and issuing judgments and corrective measures against alleged transgressors of the CPA.

In one of its most striking findings it accuses an NCC legal advisor of committing perjury in hearings relating to compliance notices issued against Vodacom.

The effect of this dysfunction has been, according to the report, that the NCC has compromised the rights of consumers by failing to meet its mandate of ensuring that consumers have an effective means to recourse against infringements of the CPA.

Businesses, on the other hand, have not been treated in a “fair and reasonable” manner when subjected to investigations by the NCC and have been forced to spend significant amounts of time and money battling illegal compliance notices issued against them. “There seems to be a lack of understanding on the part of the commission that it is obliged to follow the procedures set out in the CPA”, reads the report.

In its concluding remarks it states that “the Commission is not conducting itself in a manner which is conducive to developing a consumer protection environment which encompasses the aims as set out in the (CPA)”.

In response Consumer Commissioner Mamodupi Mohlala has furnished CitiBusiness with a copy of a letter addressed to the DTI, dated July 19, in which she claims the report forms proof of her “long held view” that the NCT is “being used against me (by the DTI) to manufacture grounds for incompetence”.

She has contested the “correctness of the contents and allegations therein in the strongest of terms”.

In what has developed into a long standing internal and public spat between the DTI and the NCC, Mamodupi has previously suggested to CitiBusiness that the DTI is intentionally sabotaging her department as it holds business’ interests above those of consumers.

However, according to Bosch, the NCT is only interested in ensuring that the NCC follows the prescripts of the law. “I do note with regret that a picture has been painted of two public offices that have all these problems with each other. From our side we don’t have a problem in the NCC,” she said.

“It is not a personal issue, the law is the law, if they do bring a matter (to the NCT) where they follow the correct procedure then the decision will go in their favour.”

The NCT’s report, marked “strictly confidential” was released into the public domain alongside papers filed by the NCC in its urgent application to have the NCT’s decision to set aside compliance notices issued against Auction Alliance.

On Tuesday the High Court rejected the NCC’s application meaning that AA can now face no further punitive or remedial action from either the NCC or the NCT following the bid rigging scandal.

The NCC is a department of the DTI while the NCT is the oversight body responsible for ensuring that the Commission acts within the dictates of the Consumer Protection Act (CPA). – malcolm@moneyweb.co.za