The National Consumer Tribunal has slapped mobile operator Cell C with a R500 000 fine over an international roaming dispute with its client.
Court documents seen by ITWeb show that on 4 May 2022, the customer, Julie Williams, contacted Cell C’s call centre to increase the monthly limit on her cellular phone contract and simultaneously activate an international roaming service before travelling to France.
Williams was represented by law firm Trudie Broekmann Attorneys.
At the time, the documents read, her contract already had a monthly limit set at R1 785. Williams submitted that a Cell C agent informed her that she was required to read the terms and conditions to her before activating the international roaming service.
Thereafter, Williams’s limit was raised by R2 000 to R3 785 and the international roaming service was also activated.
Williams then travelled from South Africa to France and landed in France the following day, on 5 May 2022, while using her cellular phone and Cell C’s international roaming service.
On 6 May 2022, Cell C notified Williams in a text message that her set limit had been exceeded and that she would no longer have access to international roaming, calling or other premium-rated services.
She then decided to use a local French SIM card in her phone from that day and for the remainder of her trip.
The documents reveal that Cell C invoiced Williams R11 265.32, the bulk of which was a cost for international roaming. On 6 June 2022, she e-mailed Cell C’s customer service department and vehemently objected to the amount on the invoice.
She pointed out that it exceeded the limit she had set on 4 May 2022, and stated that she refused to pay the amount reflected on the invoice.
Nevertheless, Cell C debited the amount due from her bank account.
Refund request
On 2 August 2022, upon Williams’s instruction, her attorney wrote a letter to Cell C stating her legal position and requesting a refund on her behalf.
On 11 August 2022, Cell C’s representative, Julia Haywood, replied by e-mail and indicated that Williams was told of the high costs of international roaming before activating the service, and terms and conditions were read to her during the telephone call.
According to the court documents, Cell C’s terms and conditions explain that there may be delays in imposing limits for its international roaming service and that Cell C cannot guarantee the accuracy of the set limits.
The mobile operator denied it breached any provision of the Consumer Protection Act (CPA) and confirmed that Williams was liable for the costs incurred above her set limit.
Dissatisfied with Cell C’s views, Williams complained to the National Consumer Commission. On 2 November 2023, after considering the matter and corresponding with the respondent, the Commission indicated that the alleged facts, if true, do not constitute a remedy under the CPA and accordingly provided Williams with a notice of non-referral.
On 14 June 2024, Williams was granted leave to refer the matter to the Tribunal.
Williams confirmed that the clauses in Cell C’s terms and conditions, which it relied on as its primary defence, were read to her during the telephone call on 4 May 2022.
However, she did not attest to or fully understand it since its implications were not explained to her.
“She would not have thought that her set limit could reach an amount of R11 265.32. At the end of the telephone call, she was under the impression that her monthly bill limit had been increased to R3 785 and would not be charged an amount higher than that,” the documents read.
“The applicant avers that the respondent misled and deceived her and that the risk she faced was not sufficiently drawn to her attention as required under the CPA. She should not have been charged any amount above the imposed limit.”
Thrown to the wolves
In its defence, Cell C submitted that while its agent was reading the terms and conditions to Williams, she was dismissive and remarked that she had already heard the terms and conditions in an earlier call, during which she unsuccessfully attempted to increase her monthly limit and activate international roaming.
It added that Williams was specifically and explicitly informed about roaming charges and advised on how to limit them.
Cell C’s analysis of Williams’s data usage shows that she connected to foreign network operators in Norway, the United Arab Emirates, and France between 4 May 2022 and 5 May 2022.
According to the mobile operator, foreign networks in other countries record a consumer’s roaming activities and bill the respondent. Williams is then liable to the foreign operator for settlement of the account in terms of the parties’ roaming agreements, it argued.
In its findings, the Tribunal 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, the Tribunal says Cell C has considerable bargaining power, which the applicant and other consumers do not have.
“While the Tribunal is aware that international roaming may be expensive, the respondent, as the supplier in this transaction, had a statutory obligation to ensure that prices charged to the applicant’s account are fair, reasonable and just.
“Instead, the respondent threw the applicant to the wolves, so to speak and benefitted financially while she was exploited. The Tribunal considers the respondent’s conduct in this regard to be unconscionable and contrary to the spirit and purpose of the CPA.
“The respondent disregarded consumer rights and the legislation enacted to protect consumers. It attempted to hide behind the costs imposed by foreign network operators and neglected to uphold the spirit and purpose of the CPA. Despite evidence to the contrary, the respondent remains steadfast in its belief that it has not contravened any provision of the CPA,” the Tribunal adds.
The Tribunal found that Cell C contravened various sections of the CPA.
It then ordered Cell C to refund Williams R7 480.32, the amount she was charged over the limit on her account, within 30 days of the order.
The mobile operator was also ordered to pay an administrative fine of R500 000 into the National Revenue Fund within 30 days.
Disappointing outcome
In a statement to ITWeb, Cell C says: “Cell C acknowledges the recent ruling by the National Consumer Tribunal regarding a dispute over international data roaming charges.
“While we respect the Tribunal’s decision, we are disappointed with the outcome as we are of the view that Cell C acted at all times fairly, transparently and in accordance with the provisions of the Consumer Protection Act.
“Our legal team is currently reviewing the judgement and considering our options, including the possibility of taking the matter on review. Given the broader implications for international roaming policies across all operators in South Africa, this case is significant.
“We are committed to transparency and fair consumer practices, ensuring that our customers are fully informed about international roaming charges and usage policies. We will provide further updates as we assess the next steps."
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