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[2012] ZANCT 27
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Wingfield Motors (Pty) Ltd v National Consumer Commission (NCT/3882/2012/101(1)(P) CPA) [2012] ZANCT 27 (27 November 2012)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD AT CENTURION
Case No: NCT/3882/2012/101(1)(P) CPA
DATE:27/11/2012
In the matter between:
WINGFIELD MOTORS (PTY) LTD...............................................................................APPLICANT
and
THE NATIONAL CONSUMER COMMISSION.........................................................RESPONDENT
Coram:
Adv F Manamela – Presiding Member
__________________________________________________________________________________
APPLICATION FOR CONDONATION FOR NON COMPLIANCE WITH THE TRIBUNAL RULES: REVIEW OF THE COMPLIANCE NOTICE
INTRODUCTION
The Applicant in this matter is Wingfield Motors (Pty) (Ltd) a trading company registered in terms of the company laws of the Republic of South Africa, conducting its business at Corner Van Riebeeck and Digtebij Streets, Kuilsrivier, Province of the Western Cape, hereinafter referred to as Wingfield Motors
The Respondent is the National Consumer Commission (NCC) a public entity established in terms of section 85 of the Consumer Protection Act No. 68 of 2008 (“CPA”) hereinafter referred to as the Commission.
The Applicant brought an application in terms of section 101(1) of the CPA to the National Consumer Tribunal (the Tribunal) for the review and cancellation of a compliance notice issued against it by the Commission. The Applicant has set out in detail grounds for the review and /or cancellation of the Notice, in Form TI.60 (3) & 101 CPA and the accompanying documents filed by JG White, manager of the Applicant (“White”).
This judgement is about the application launched by the Commission to condone non-compliance with the Tribunal rules. The main application was filed with the Tribunal on 20 February 2012. The Commission is allowed fifteen working days to file its Answering affidavit. The Commission filed its papers in July 2012, four months later. The Commission therefore applied to the Tribunal for condonation for the late filing of such Answering Affidavit.
Documents titled “statement in explanation of reasons for later filing” are undated and signed by Oatlhotse Crisp Thupayatlase, Director of Legal Services in the employ of the Commission (“the Statement”). These documents accompany Form TI.r34. It can only be assumed that they were signed on 5 July 2012 as more fully appears on Form TI.r34.
Rule 34(1) of the Rules provides that a party may apply to the Tribunal for condonation for non-compliance with the Rules of the Tribunal and the Tribunal may grant such an order on “good cause shown”. It should be considered that the Applicant has stated its grounds in the document, the substance whereof is the fundamental principle to be determined in order to find good cause. In exercising its wide discretion in matters such as this, and regard being had to the substantive issues raised by the Applicant in the main matter, the Tribunal is inclined to determine the condonation application in considering also what is canvassed in the main application.
FACTS IN BRIEF
On 4 April 2011 the consumer, one D Ramaloo (“the Complainant”) purchased a used motor vehicle: Mazda RX8 high power, 2005 model, from the Applicant. The vehicle was purchased for the amount of R146 000, 00. The complainant tendered an amount of R12 000, 00 as a deposit and continues to pay the balance by way of monthly instalments in the amount of R3200, 00.
The Complainant agreed with the Applicant that the vehicle would be returned to the Applicant for service and replacement of the air conditioner. The vehicle was subsequently returned to the Applicant on 11 April 2011 and was returned to the Complainant on 15 April 2011 without all the problems resolved.
Accordingly, the Complainant alleges that the problems he had experienced with the vehicle were the following: owner’s manual and service book; spare key and the spare wheel were not provided.
The matter was then referred to conciliation on 8 December 2011(date appearing on the conciliation notice dated 30 November 2011) where the parties failed to resolve the dispute
The Commission alleges that it attempted on numerous occasions to engage with the Applicant without success. Such conduct by the Applicant, the Commission alleges, amounts to failure to cooperate with the Commission
The Commission then made the following demands to the Applicant:
12.1 to cancel the contract and settle the balance the Complainant is owing to the bank
12.2 to refund the Complainant all the money he paid towards the vehicle, being R12000,00 deposit and the amount of R3 200,00 in respect of the monthly instalments paid towards the vehicle;
12.3 to refund the amount of R6 503;00 for towing the vehicle from Bloemfontein to Cape Town and the pre-delivery service fees incurred by the Complainant
The Commission would, upon failure by the Applicant to comply with the notice, approach the Tribunal for an order imposing an administrative fine of R300 000,00
The Applicant, in response to the Commission’s claims in the Compliance Notice, contends that the Conciliation Hearing held on 8 December 2011 noted the fact the vehicle was received in good order and that the Complainant received specific written instructions from the repairer on how to handle the engine for the first 2000km.
The Applicant argues that the Complainant drove the vehicle until it lost coolant water, causing the damage to the engine.
The Applicant denies that it ignored the Commission’s effort to resolve the issue, and in turn alleges that the Commission itself was not responding to its correspondence.
Further that the next correspondence it received from the Commission, was a Compliance Notice, after all the Applicant’s efforts to get the Commission’s response drew blank.
The Applicant avers further that this matter would have appropriately been attended to by the Motor Industry Ombud and that the Commission lacks jurisdiction to handle this matter
LEGAL PRINCIPLES
The Rules provide the Tribunal with the discretion to grant condonation on “good cause shown”.
The discretion to condone non-compliance with rules on the basis of “good cause” has been dealt with in numerous court decisions. In Mofokeng v Attorney General,1 for example, the court had to consider the meaning of “good cause” in Rule 94(1) of the Rules of Court and held that this meant substantially the same as “sufficient cause” in Rule 12 of the Appellate Division.
This issue was dealt with by the Appellate Division (now the Supreme Court of Appeal) in the seminal case of Melane v Santam Insurance Company Limited.2In this case the court stated the following:
“The approach is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degrees of lateness, the explanation therefor, the prospects of success and the importance of the case. These facts are inter-related: they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is: that without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused…cf Chetty v Law Society of the Transvaal 1985(2) SA 756 (A) at 765 A-C; National Union of Mineworkers and Others v Western Holdings Gold Mine 1994 15 ILJ 610 (LAC) at 613E.
From this judgment it can be seen that the Tribunal must consider the facts of this particular matter, it must act fairly to both parties and it must take a number of factors into consideration including inter alia the degree of lateness, the explanation therefor and the prospects of success regarding the merits of the matter.3
These factors are interrelated and should not be considered separately.4
The Rules do not circumscribe the Tribunal’s discretion and therefore as with the courts, the Tribunal has a wide discretion in these matters.
The onus is therefore on the Commission to show that it is entitled to condonation.5
FACTORS TO BE CONSIDERED BY THE TRIBUNAL
In Cairns’ Executors v Gaarn6 the court stated that it is impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the granting of indulgence and that any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made very extensive. The court held that is highly desirable not to abridge the court’s discretion. The applicant for condonation must show something which entitles him to ask for the indulgence of the court and what that something depends on the circumstances of each particular application.
For the purposes of this judgment the Tribunal has considered the following factors:
The degree of lateness;
The explanation therefor; and
The prospects of success
The degree of lateness and explanation therefor
Condonation is not usually granted by the courts unless the court is satisfied that the applicant has shown that the degree of lateness or non-compliance with the prescribed time frame is not excessive and that the applicant has provided an explanation for every aspect of the period of the lateness or the failure to comply with time frames. It was held in Saloojee & Another NNO v Minister of Community Development7 that an excessive delay would require an extraordinarily good explanation. This is the case in the current application.
In Independent Municipal & Allied Trade Union obo Zungu v SA Local Government Bargaining Council & Other,8 the court held that in explaining the reason for delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one.
The court in General Accident Insurance Co SA Ltd v Zampelli9 held that the “circumstances or ‘cause’ must be such that a valid and justifiable reason exists why compliance did not occur and why non-compliance can be condoned” and in Standard General Insurance Co Ltd v Eversafe (Pty) Ltd10the court stated that:
“It is well established that an applicant for any relief in terms of Rule 27 has the burden of actually proving, as opposed to merely alleging, the good cause that is stated in Rule 27(1) as a jurisdictional prerequisite to the exercise of the court’s discretion. Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352G. The applicant for any such relief must, at least, furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about and to assess his conduct and motives (Silber v Ozen Wholesalers (supra at 353A). Where there has been a long delay, the Court should require the party in default to satisfy the Court that the relief sought should be granted. Gool v Policansky 1939 CPD 386 at 390.
The Compliance Notice issued by the Commission is dated 8 February 2012 and the Commission alleges in its papers that it was served on the Applicant on 21 November 2011. This is a bit confusing.
On 20 February 2012 the Applicant files its objection application with the Tribunal. In that regard the Commission is allowed fifteen working days to file its Answering affidavit. The Commission files its papers in July 2012, four months later. This delay is inordinately long.
In its statement explaining reasons for the late filing, the Commission states the following:
33.1.1 in the first week of January 2012, the Commission, due to lack of funding, took a decision to withdraw all the matters that have been given to different law firms to provide legal services to the Commission, to be handled internally.
33.1.2 this created unprecedented pressure for the Commission in that there was already more than five matters before the Tribunal set down for hearing or pre hearing
33.1.3 this caused further delays in preparing affidavits for this matter and many others where heads of arguments had to be drafted
33.1.4 as there was only a single person attending to the aforesaid, the task was enormous considering the lack of human resources and funding
33.1.5 the compliance notices that had already been issued had to be dealt with and could not be withdrawn simply because there is too much work for one person
33.1.6 the late filing of the answering affidavit would not result in the Applicant suffering prejudice, hence the request to condone the late filing.
Clearly the reasons for the delay canvassed by the Commission cannot pass the test for the successful application for condonation. There is no good cause warranting indulgence for the late filing.
Prospects of Success
In the Melane case the court stated that even if a good explanation for the delay is provided, an application for condonation should be refused in circumstances where there are no prospects of success.11
It is also important to note that when dealing with prospects of success it is necessary for the Tribunal to consider the merits of the matter.
In Penrice v Dickinson,12 for example, the Appellate Division held that in an application for condonation the merits of the appeal may in some cases be an important factor and that if there is sufficient information before the court to enable it to decide whether the appeal has or has not a reasonable prospect of success, it had to decide the question because if the appeal is hopeless, the “great expense of prosecuting it would be a mere waste of money”. This view was reiterated in Melane v Santam Insurance Co Ltd where the court stated that “if there are no prospects of success there would be no point in granting condonation”.
CONCLUSION
The Tribunal, having considered all the documents filed of record and all the factors relevant to the determination of this application, makes the following ruling:
The application for condonation is hereby dismissed.
Dated this 27th Day of November 2012.
[signed]
_________________________________
FK MANAMELA
PRESIDING MEMBER
1OFS 1958 (4) SA (O).
2 1962 (4) SA 531 (A) at 532C-F.
3See Mbutuma v Xhosa Development Corporation Ltd, 1978 1 SA 681 (A)where the Appellate Division held that condonation could be granted under the Rules of the Appellate Division if the applicant satisfied the Court that sufficient cause had been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause had been shown, the Court would consider all the relevant facts and circumstances of the particular case, such as the degree of non-compliance with the Rules, for example, the length of the delay, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice. In Nedcor Investment Bank Ltd v Visser NO 2002 (4) SA 588 (T) at 591 Patel AJ (as he then was) referred to rule 27(3) which requires ‘good cause’ to be shown by the plaintiff and stated that the Court has a wide discretion. See also C Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) at 216H-217A.
4Melane v Santam Insurance Company Limited.
5See for example Cairns’ Executors v Gaarn 1912 AD 181.
6 1912 AD 181 at 186.
71965 (2) SA 135 (A) 141 B-H.
8(2010)31 ILJ 1314(LC)para 13.
9 1988 (4) SA 407(C) at 410I-J
10 2002 (3) SA 87 (W) at 93. See also Sanford v Haley NO 2004 (3) SA 296 © at 302. Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) [2002] 4 B All SA at [6]
11See also Immelman v Loubser and Another 1974 (3) SA 816 (A) where the court, in dealing with the failure to note an appeal timeously, stated that a reasonable prospect of success on appeal is also an important consideration.