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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 Case Number: NCT/84881/2017/140(1) NCA – Rule 34

In the matter between:

FOSCHINI RETAIL GROUP (PTY) LTD                                                                                            APPLICANT

and

NATIONAL CREDIT REGULATOR                                                                                              RESPONDENT

IN RE:

NATIONAL CREDIT REGULATOR                                                                                                   APPLICANT

and

FOSCHINI RETAIL GROUP (PTY) LTD                                                                                       RESPONDENT

 

Coram:

Adv. J. Simpson            - Presiding member

Mr. A. Potwana              - Member                     

Ms. H. Devraj                - Member                     

JUDGMENT AND REASONS

(CONDONATION FOR FILING OF SUPPLEMENTARY AFFIDAVIT)

APPLICANT

1. The Applicant in this matter is Foschini Retail Group (Pty) Ltd (“the Applicant” or “Foschini”). The Applicant is the Respondent in the main matter.

RESPONDENT

2. The Respondent is the National Credit Regulator (“the Respondent” or “NCR”). The Respondent is the Applicant in the main matter.

BACKGROUND   

3. The NCR lodged an application against Foschini with the Tribunal on 28 June 2017. The application was lodged in terms of section 140(1) of the National Credit Act 34 of 2005 (“the NCA”). The NCR essentially alleged that Foschini had contravened the NCA by adding club fees to its credit agreements.

4. On 26 July 2017 Foschini filed an answering affidavit opposing the application. On 10 August 2017 the NCR filed a replying affidavit.

5. In its answering affidavit Foschini applied for an order that some of the information contained in its answering affidavit be regarded as confidential. On 10 August 2017 a member of the Tribunal issued a written ruling ordering that the hearing be held in public but that all the submissions made by either party that related to the confidential information be dealt with in camera.

6. A pre-hearing was convened on the main matter on 31 October 2017. At the pre-hearing Foschini requested a separation of the hearing on the merits and the sanction, if any, to be imposed. This request was opposed by the NCR.

7. On 21 November 2017 Foschini lodged a notice of motion applying for a separation of the hearing on the merits and the sanction. On 11 December 2017 the NCR filed its answering affidavit to the application for separation. On 26 January 2018 Foschini filed its replying affidavit.

8. The matter was then set down by the Tribunal Registrar for 16 April 2018 for hearing the application for separation.

9. On 8 March 2018 Foschini filed a supplementary affidavit, to support its averments made in paragraphs 16 and 17 of its founding affidavit for the application for separation. On 23 March 2018 it filed this current application to condone the filing of a supplementary affidavit. The hearing set down for 16 April 2018 was removed from the roll so that the Tribunal could consider the application to condone the filing of the supplementary affidavit.

10. Foschini submits that the information provided in the supplementary affidavit will assist the Tribunal in adjudicating on the separation application. There would be no prejudice to the NCR as the information submitted is not contentious. Foschini was unable to obtain the additional information contained in the supplementary affidavit in time for it to be included in the founding affidavit. Foschini obtained a quote from PWC to obtain the information required and this process could only be finalised in March 2018.

11. The NCR did not file any opposition to Foschini’s application for condonation. 

APPLICABLE SECTIONS OF THE NCA AND RULES[1]

12. Rule 34 (1) states “A party may apply to the Tribunal in Form TI r.34 for an order to:-

(a)    condone late filing of a document or application;

(b)    extend or reduce the time allowed for filing or serving;

(c)     condone the non-payment of a fee; or

(d)    condone any other departure from the rules or procedures.”

13. Rule 34 (2) states “The Tribunal may grant the order on good cause shown”.

14. Rule 13 (1) states “Any person required by these Rules to be notified of 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.

13(2) An answering affidavit to an application or referral other than an application for interim relief must be served on the parties and filed with the Registrar within 15 business days of the date of the application”.

15. Section 142 (3)(c) of the NCA states the following –

“The Chairperson of the Tribunal must assign any of the following matters to be heard by a single member of the Tribunal, sitting alone…applications to permit late filing…”

16. Section 142(3) of the Act only refers to applications for late filing which may be heard by a single member of the Tribunal as provided for under Rule 34(a). This type of application for condoning the filing of a supplementary affidavit is neither provided for under section 142(3) nor under Rule 34 (1)(a) of the rules, which allows for the condoning of a late filing of a document or application. Rule 34 however provides for other instances where the Tribunal may grant condonation [Rule 34(1)(b) to (d)]. These other instances are however not referred to in section 142(3). The only conclusion that can be drawn from this is that any application for condonation which falls outside section 142(3) but is provided for under Rule 34(1)(b) to (d) must be considered by a full panel of three members.

17. The application before the Tribunal is to condone the filing of a supplementary affidavit. The Rules of the Tribunal do not provide for any further affidavit to be filed after the filing of a replying affidavit by the applicant in a matter. The filing of a supplementary affidavit would therefore have to be considered as an application in terms of Rule 34(1)(d), as a departure from the Rules or procedures.

APPLICABLE LEGAL PRINCIPLES

18. 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].

19. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others^[4] it was held that the standard of considering an application of this nature is the interests of justice.

20. Whether it is in the interest of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of a discretion on an objective conspectus of all the facts. Factors that are relevant include but are not limited to:

20.1       the nature of the relief sought;

20.2       the extent and cause of the delay;

20.3       the effect of the delay on the administration of justice and other litigants;

20.4       the reasonableness of the explanation for the delay;

20.5       the importance of the issue to be raised in the intended appeal; and

20.6       the prospects of success.^[5]

21. In Melane v Santam Insurance Company Limited^[6] it was held that:

“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 therefore, 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. The courts have traditionally demonstrated their reluctance to penalize a litigant on account of the conduct of his representative but it emphasized that there is a limit beyond which a litigant cannot escape the results of the representative’s lack of diligence or the insufficiency of the information tendered. (Salojee & Another NNO v Minister of Community Development 1965 (2) A 135 (A) 140H-141B; Buthelezi & Others v Eclipse Foundries Ltd 18 ILJ 633 (A) at 6381-639A).”

22. From the dictum in Melane it was held that these factors are interrelated and should not be considered separately.

CONSIDERATION OF THE MERITS

23. In evaluating the merits of the application the Tribunal will consider the following factors –

23.1       The application for condonation is not opposed by the NCR;

23.2       There is no indication of Foschini unnecessarily filing the supplementary affidavit or using it to delay the proceedings; and

23.3       The NCR will be entitled to reply to the further information provided if it wishes to do so.

24. The Tribunal finds that the factors listed above constitute good cause in these specific circumstances. The Tribunal therefore grants the application and the filing of Foschini’s supplementary affidavit is condoned.

25. As the filing of Foschini’s supplementary affidavit has been condoned, the NCR is granted an opportunity to respond to the further information provided in the supplementary affidavit if it wishes to.

ORDER

26. Accordingly, for the reasons set out above, the Tribunal makes the following order:-

26.1       Condonation is hereby granted to Foschini for the filing of the supplementary affidavit;

26.2       The NCR may file an affidavit in response to the supplementary affidavit within 10 business days after the judgment is issued to the parties; and

26.3        No order is made as to costs.

 

DATED 8 JUNE 2018

 

[signed]

Adv J Simpson

Presiding Member

 

Ms H Devraj (Tribunal Member) and Mr A Potwana (Tribunal Member) concurring

 

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