Must Telkom pay for your wasted time?

Courts and competition tribunal will test whether the telco is liable for losses its errors have caused

Three years ago, Billy Ruyobeza noticed something strange — his bank account had been debited by R450 for internet services provided by Telkom, which he knew nothing about.

A technology consultant, Ruyobeza tried to get Telkom to reverse the debit and explain how and why his money had been taken.

“They would put me on hold for hours — you know with the music in the back and the woman telling you that we appreciate your call — but I never got assistance.”

When the debit orders continued and the calls on hold got longer, the only option he had was to reverse the debit order with his bank every month. “Then they started calling me.”

Ruyobeza said, for 15 months after he started reversing the debits, which ranged from R450 to R1300, he would get calls and emails from Telkom employees, agents and debt collectors who “harassed” him, asking for payment for services he never applied for and didn’t receive.

Then in August 2016 he received a call from his bank telling him that his credit facility had been cut in half. No explanation was given.

“I went to one of the bank’s branches where I kicked up a fuss demanding to know why my credit had been cut. Then someone came and asked me, in a small voice, ‘Sir, aren’t you blacklisted?’ I couldn’t believe it.”

Ruyobeza said Telkom eventually found he was not liable for the account and, although Telkom removed the negative listing and sent him a letter apologising for the inconvenience, he is seeking damages for wasted time and harassment.

He lodged a complaint with the National Credit Regulator (NCR) seeking damages. After investigations, the regulator declined to resolve his complaint but allowed him to approach the Consumer Tribunal.

He then told a tribunal panel he wanted a declaratory order saying Telkom had engaged in prohibited conduct and contravened the National Credit Act (NCA). The matter was heard on Monday.

The issue of companies and debt collectors posting incorrect information on consumer’s records is not isolated. According to the Credit Bureau Monitor, compiled by the NCR, in the fourth quarter of 2017 there were 32509 disputes lodged by consumers questioning the accuracy of the information listed on their consumer records.

Of these, 22349 were resolved in favour of consumers and just 4352 remained unchanged.

In the three preceding quarters, 101600 disputes were adjudicated, more than 67% of which were in favour of the consumers.

In his presentation to the tribunal, Ruyobeza said he spent a considerable amount of time trying to rectify the incorrect listing. He said, as a businessperson and technology consultant, he was seriously compromised.

“During the period I was adversely listed, I had made two applications for funding, all of which were declined without any other obvious reason, except that I was adversely listed and therefore deemed unable to run a financially viable business.”

Ruyobeza also has a pending case against Telkom at the Randburg magistrate’s court where he is seeking compensation for the time he has spent correcting the adverse listing, and for harassment and defamation.

Telkom’s legal team argued that the tribunal should not entertain Ruyobeza’s referral because the damages he listed for time spent correcting the listing were not provided for in the NCA. Section 72(1)(d) of the NCA stated that a consumer who had been wrongfully listed with the credit bureau must be compensated for the “cost of correcting that information”.

“None of these are costs incurred or costs spent by the applicant; this is all time spent by the applicant. None of the case law that we have thus far from the tribunal indicates that an applicant is entitled to claim his time spent,” said Telkom’s council, Claire Avidon.

She said Ruyobeza’s application should be dismissed because it did not correlate with the one initiated at the NCR, where he only asked for damages, and not documents, as he was now requesting.

“By keeping all of these extra issues in his back pocket and only bringing them now, there hasn’t been a proper process for investigation and the respondent has been denied the opportunity to try and redress or settle them with the regulator as a forum,” Avidon said.

But Ruyobeza said Telkom’s opposition to his referral was “entirely unnecessary and groundless”. He said the relief he wanted from the tribunal, documents and a declaratory order, was different from the damages he was suing for in the magistrate’s court.

The tribunal has given both parties five days to file supplementary heads of argument. It’s not clear when the judgment will be made.

Consumer law specialist Trudie Broekmann said: “A ruling in favour of the consumer would have a broad impact in our society where identity theft and credit fraud are not unusual and consumers in our experience struggle to convince suppliers that they are not liable for the fraudulent accounts.”

But Broekmann was sceptical about Ruyobezwa’s chances of success in his court claim for compensation for the time spent to correct the adverse listing.

“This type of claim has not to my knowledge come before our courts. The court’s finding would depend on the evidence of loss or harm suffered, which the consumer places before the court. Our courts don’t usually compensate parties for inconvenience suffered,” she said. Broekmann added, if the tribunal found that Telkom’s conduct was prohibited, it could be fined 10% of its annual turnover for the past financial year.

Consumer advocate Stephen Logan, the founder of the Fair Credit Foundation, said it was reasonable for someone to expect compensation for losses caused by an illegal act that caused them to take time to rectify it.

“If this person had a high-paying job and they have to take time off their job to do that, that is something [that may have led to losses attributable to the] publishing of false information about this person. The damages will vary depending on the circumstance.”

He said the plaintiff had to prove all the elements of a damages claim, such as causation and then the amount of damages, which was something the magistrate’s court would determine.

Ruyobeza, who is representing himself, said he was ready to take the case to the Constitutional Court. “As Goliath they think they are going to squash you somewhere. Maybe they will but I am determined to take it all the way,” he said.