Huge legal ruling for mobile networks in South Africa

The National Consumer Tribunal has fined Cell C R500,000 after ruling against it in a roaming bill dispute.

Cell C customer Julie Williams filed the complaint against her mobile operator after receiving a R11,265.32 roaming bill following a trip to France in May 2022.

Crucially, Williams had contacted Cell C the day before her flight to ensure her roaming was activated and that a suitable bill limit was in place.

Cell C’s call centre agent had suggested a limit of R20,000, but Williams refused, saying she wanted it set at no more than R2,000 over her regular bill limit.

After conferring with her manager, the agent set Williams’ limit to R3,785.

Williams told veteran consumer journalist Wendy Knowler that she used just 100MB in Google Maps while trying to find her accommodation.

She was billed almost R9,000 for the data and a 25% international roaming surcharge.

Cell C told the National Consumer Tribunal that its analysis of Williams’ data usage showed she connected to foreign network operators in Norway, the United Arab Emirates, and France.

The mobile provider argued that Williams was made well aware of the risks associated with international roaming, including the fact that charges could be very high and that there could be delays in her bill cap being triggered.

“Cell C also cannot guarantee the accuracy of the limits set, or that such limits will be set timeously due to the delays from foreign networks,” it warns in its terms and conditions.

“There may be up to a three month delay in call, SMS and data charges reflecting on your statement due to the downloading of Call Data Records from foreign networks.”

However, Williams said Cell C’s warning was more than five minutes of legal jargon quickly read to her over the phone from a script.

“I was very clear in that call that I did not want to be left with a nasty surprise from international roaming costs,” she said.

Almost thirty months after Williams filed her complaint against Cell C with the National Consumer Commission, the Tribunal found in her favour.

The National Consumer Tribunal effectively overturned the standard terms and conditions for international roaming used by South African operators.

Thrown to the wolves

It was also scathing in its ruling against Cell C.

“The Tribunal notes its displeasure with the respondent’s attempt to paint itself as a mere middleman at the mercy of foreign network operators,” it stated.

“In dealing with its international partners, the respondent has considerable bargaining power, which the applicant and other consumers do not have.”

The Tribunal said that although it was aware international roaming may be expensive, Cell C, as the supplier in the transaction, had a statutory obligation to ensure prices charged to its customer’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 stated.

“The Tribunal considers the respondent’s conduct in this regard to be unconscionable and contrary to the spirit and purpose of the CPA.”

It ordered Cell C to pay Williams’ costs, which the Tribunal noted was rare as it believed there must be exceptional circumstances for it to do so.

“The referral by the applicant is a typical David and Goliath battle where she knew, as a layperson, she would be faced with challenging legal arguments and skilled legal practitioners,” the Tribunal stated.

“The applicant had no alternative but to engage the services of an attorney to represent her in her quest for justice. In doing so, she has incurred legal fees and stands to be compensated for them.”

Williams was represented by Gerhard van der Merwe, a senior associate at Trudie Broekmann Attorneys.

The law firm said this was the first win against a cellular provider before the Consumer Tribunal and only the second win ever.

It was also only the second time the Tribunal had made a costs order, albeit on the Magistrates Court scale.

“If Cell C appeals, we will challenge the scale,” the law firm vowed.

“We believe this really opens up the Tribunal as a forum for serious and impactful cases to be brought before them much more regularly.”

MyBroadband contacted Cell C for comment, which said the ruling had far-reaching implications for the entire industry in South Africa.

“While we respect the Tribunal’s decision, we are disappointed with the outcome as we believe our arguments were well-founded and aligned with industry standards,” Cell C stated

“Our legal team is currently reviewing the judgement and considering our options, including the possibility of taking the matter on review.”

Cell C said that this case was significant given the broader implications for international roaming policies across all operators in South Africa.

“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,” Cell C said.

“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.”