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[2018] ZANCT 19
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Tengizak CC v National Credit Regulator (NCT/91474/2017/57(1)) [2018] ZANCT 19 (6 February 2018)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case Number: NCT/91474/2017/57(1) Rule 34
In the matter between:
TENGIZAK CC APPLICANT
and
NATIONAL CREDIT REGULATOR RESPONDENT
Coram:
Ms H Devraj – Presiding member
CONDONATION RULING
INTRODUCTION
1. In this application for condonation:
1.1. The Applicant, which is the Respondent in the main matter, is Tengizak cc a registered credit provider whose registration number with the National Credit Regulator (NCR) is NCRCP3986.
1.2. The Respondent, which is the Applicant in the main matter, is the National Credit Regulator, a juristic person established by section 12 of the National Credit Act, 34 of 2005 (the Act).
1.3. The Applicant and the Respondent will be referred to as they appear in the main matter.
BACKGROUND
2. In the main matter; the Applicant seeks an order to declare the Respondent to be in repeated contraventions of various sections of the Act and Regulations and failing to comply with its conditions of registration. In the result, the Applicant also moved for deregistration of the Respondent. The Applicant alleges that the Respondent failed to conduct proper affordability assessments as required by the Act. By failing to conduct a proper affordability assessment, the Applicant in the main matter further alleges that the Respondent therefore granted credit recklessly. Furthermore, should the Respondent in the main matter contend that it does conduct affordability assessments but does not keep the records of same, then the Respondent in the main matter failed to keep proper records as required by the Act and Regulations. Furthermore, the Applicant in the main matter alleges that the Respondent failed to provide consumers with a pre-agreement statement and quotation in the prescribed form, credit agreements were not in the prescribed form and credit agreements contained unlawful provisions.
3. On 29 September 2017, the Applicant filed the application in the main matter on the National Consumer Tribunal (the Tribunal).
4. In terms of Rule 13 of the Tribunal Rules, the Respondent in the main matter was required to file its Answering Affidavit within 15 business days of receiving the application. However, in this particular matter, it is not clear when the Respondent in the main matter received the application. The case file contains correspondence of a Notice of Complete Filing being issued on 11 October 2017 in which the Respondent needed to file its answering affidavit within 15 business days of this date. In light of this correspondence, the due date for the filing and serving of the Answering Affidavit would therefore have been 1 November 2017.
5. On 2 November 2017, the Respondent in the main matter filed a condonation application for the late filing of its Answering Affidavit.
ISSUE TO BE DECIDED
6. The issue I am required to decide is whether the application to condone the late filing of the Answering Affidavit should be granted or not.
BRIEF FACTS BY THE RESPONDENT IN THE MAIN MATTER
Reasons for the lateness
7. The Respondent in the main matter submits that counsel had prepared the Answering Affidavit in the main matter on 1 November 2017. However, there was one comment that still needed to be addressed by the Respondent. The Respondent and counsel had a discussion and finalised the matter on 1 November 2017. The Respondent was only available to go to counsel on 2 November 2017 to sign the Answering Affidavit.
8. The Respondent in the main matter submits that the delay was caused merely due to logistical difficulties in getting the Answering Affidavit signed. Furthermore, the Respondent contends that this was not a delaying tactic.
Prejudice
9. The Respondent in the main matter submits that the delay in filing the Answering Affidavit is not substantial.
10. The Respondent will suffer prejudice if the condonation is not granted. The Respondent further submits that the granting of the condonation application will not prejudice the Applicant in the main matter.
THE APPLICANT’S OPPOSITION TO THE CONDONATION APPLICATION
11. The Applicant in the main matter did not oppose the condonation application.
LEGAL PRINCIPLES
12. It is convenient to set out the relevant statutory and regulatory provisions as well as the case law governing the condonation application.
13. Rule 34 (1) (a)[1] provides that a "party may apply to the Tribunal in Form TI r.34 for an order to condone the late filing of a document or application". Rule 34 (2) states that the Tribunal may grant the order on good cause shown.
14. Rule 13 (1) and (2) respectively provide that :
“Opposing an application or referral
(1) Any Respondent to an application or referral to the Tribunal may oppose the application or referral by serving an answering affidavit on:
(a) the Applicant; and
(b) every other person on whom the application was served.
(2) An answering affidavit to an application or a referral other than an application for interim relief must be served on the parties and filed with the Registrar within 15 business days of receipt by such party of the application.”
15. To condone means to “accept or forgive an offence or wrongdoing”. The word stems from the Latin term condonare, which means to “refrain from punishing”[2]. It can also be defined to mean “overlook or forgive (wrongdoing)”[3].
16. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[4] it was held that the standard for determining an application of this nature is the interests of justice.
17. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of discretion on an objective conspectus of all the facts. Factors that are relevant include but are not limited to the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success.[5]
18. In Melane v Santam Insurance Company Limited[6] it was held that:
“In deciding whether sufficient cause has been shown, the basic principle 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. Ordinarily these facts are inter-related; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. And the Respondent's interests in finality must not be overlooked
19. The dictum in Melane reveals that these factors are interrelated and should not be considered separately.
CONSIDERATION OF THE MERITS
20. I now turn to the merits of the condonation application.
Lateness
21. According to Rule 13(2) of the Tribunal Rules, the Respondent in the main matter should have filed its Answering Affidavit within 15 business days of receiving the application. The main application was filed with the Tribunal on 29 September 2017. The Respondent in the main matter has not submitted the date on which it received the main application. However, in this particular matter, the Respondent placed reliance on the information provided on the Notice of Complete Filing and accepted the date for the filing of the Answering Affidavit as 1 November 2017. As the application for condonation is not opposed by the Applicant in the main matter, the Tribunal accepts the date for the filing of the Answering Affidavit as 1 November 2017. Therefore accordingly to the evidence before the Tribunal, the Answering Affidavit was filed 1 day late, that is on 2 November 2017 by the Respondent in the main matter. The Tribunal accepts the explanation submitted by the Respondent for the late filing of the Answering Affidavit. The late filing of the Answering Affidavit by a day is reasonable.
Prejudice
22. In my view, the Respondent will suffer prejudice if it is not provided with an opportunity to respond to the serious allegations against it.
Prospects of success and importance of the main matter
23. This matter is important to the Respondent in the main matter and the allegations raised are serious. One of the orders sought by the Applicant in the main matter is that of de-registration of the Respondent in the main matter. This will have dire consequences for the Respondent in the main matter.
CONCLUSION
24. For these reasons I am persuaded that it is important that the Respondent in the main matter is provided with the opportunity to respond to the issues raised by the Applicant. It is also in the interests of justice that all the facts are before the Tribunal and that the condonation application be granted to enable the parties to fully ventilate their respective cases before the Tribunal.
ORDER
25. Accordingly, the Tribunal orders that:
25.1 The late filing of the Respondent's Answering Affidavit is condoned; and
25.2 There is no order as to costs.
Thus handed down; in Centurion; this 6th Day of February 2018
__________________
H DEVRAJ
PRESIDING MEMBER
[1] Regulations for Matters Relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal, 2007
[2]Oxford English Dictionary, Second Edition at pg 151.
[3]Collins English Dictionary and Thesaurus, Fourth Edition 2011, at pg170.
[4] 2003 (11) BCLR 1212 (CC) at para[11].
[5]Van Wyk v Unitas Hospital and Others 2008(4) BCLR 442 (CC) at para 20 as applied in Camagu v Lupondwana Case No 328/2008 HC Bisho.
[6] 1962 (4) SA 531 (A) at 532C-E.