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Powell v Auto Xtreme CC (NCT/117375/2018/75(1)(b)) [2019] ZANCT 2 (23 January 2019)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case Number:          NCT/117375/2018/75(1)(b)Rule 34

 

In the matter between:

                                   

JOHANNES DANIEL POWELL                                                                           APPLICANT

 

and

 

AUTO XTREME CC                                                                                     RESPONDENT

           

 

Coram:

 

Maria Peenze Presiding member

Date of Judgment – 23 January 2019


CONDONATION RULING


INTRODUCTION

1.          In the main application:

1.1.      The Applicant is JOHANNES DANIEL POWELL (hereinafter the “Applicant”), an adult male;

1.2.     The Respondent is AUTO EXTREME CC (hereinafter the “Respondent”); and

1.3.     The Applicant and the Respondent will be referred to as they appear in the main application.

 



THE APPLICATION

2.        This is an application to condone non-compliance with a rule or procedure in terms of Tribunal Rule 34(1) of the National Credit Act, Act 34 of 2005 (hereinafter the “Act”).

3.       The Applicant seeks condonation for the late submission of his Application for leave to refer the matter directly to the Tribunal, after the National Consumer Commission (hereinafter the “NCC”) had issued a notice of non-referral.

4.        The Applicant has also attached to this application, proof of service to the Respondent in terms of Rule 30.

5.        The Respondent did not oppose this condonation application.

 

BACKGROUND

 

6.         In the main application the Applicant requests the Tribunal to adjudicate on various alleged infringements of the Consumer Protection Act, Act 68 of 2008 (hereinafter the “CPA”), including, inter alia, the following:

 

6.1    the alleged unfair business practises of the Respondent with respect to his conduct towards the Applicant;

6.2    alleged prohibited transactions, agreements, terms and/or conditions set by the Respondent with respect to his conduct towards the Applicant;

6.3    alleged infringements of the Applicant’s rights to fair value, good quality and safety of goods;

6.4    alleged infringement of the Applicant’s section 56 right to implied warranty; and

6.5    the alleged prohibited conduct of the Respondent.

 

7.        The Applicant purchased a pre-owned vehicle during November 2016 and identified certain repairs and missing parts that needed attention, which the Respondent allegedly agreed to attend to after the conclusion of the sale.

8.         In the period after the vehicle had been sold, various letters between the parties confirmed that attempts had been made to settle matters relating to parts and other problems with the vehicle.

9.         It is alleged by the Applicant that the undertakings of the Respondent had not been honoured by the Respondent and that the inherent warranty of six months should have applied.

10.      During January 2017 the vehicle broke down, whereafter the Applicant informed the Respondent of the unfortunate circumstances. The Respondent refused to accept liability for repairs at the time, whereafter the Applicant enlisted a third party to repair the vehicle.

11.      The Applicant requested compensation for the costs incurred from the Respondent. However, the Respondent was of the view that the vehicle had a 1000 km warranty and that the implied six months warranty was not applicable.

 

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.

 

34. "Condonation of late filing and non-compliance with rules

"(1) A party may apply to the Tribunal in Form Tl.r34 for an order to:

(a)       condone the 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.

(2) The Tribunal may grant the order on good cause shown."[2]

 

14.        Rules 13 (1) and (2) respectively provide that:

"(1)    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.

 

(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.      Rule 34 accords the Tribunal the discretion to grant condonation on "good cause shown". The discretion to condone non-compliance with the Tribunal's rules on the basis of "good cause" has been dealt with in numerous court decisions. In Mofokeng v Attorney General,[3] 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.

16.      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”[4]. It can also be defined to mean “overlook or forgive (wrongdoing)”[5].

17.      In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[6] it was held that the standard for determining an application of this nature is the interests of justice.

18.      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.[7]

19.       In Melane v Santam Insurance Company Limited[8] 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…”

 

The dictum in Melane reveals that these factors are interrelated and should not be considered separately.

 

20.      From this judgment, it can be seen that for the Tribunal to 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.[9]

21.      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 on the Applicant to show good cause and that it is entitled to condonation.[10]

22.      In Cairns' Executors v Gaarn[11] 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.

 

23.      The court held that it is highly desirable not to abridge the court's discretion. The applicant for condonation must show something which entitles it to ask for the indulgence of the court and what that something is, depends on the circumstances of each particular application.[12]

 

CONSIDERATION OF THE MERITS

24.       I now turn to the merits of the condonation application. In evaluating the merits of the condonation application, the Tribunal will consider the following factors –

·         Lateness;

·         Prejudice; and

·         Prospects of success and importance of the main matter.

 

Lateness

25.      From the Condonation Application Affidavit provided by the Applicant, it is clear that the Applicant is of the view that he filed the Main Application for Leave to Refer in time. He indicates in his Condonation Application Affidavit that he filed his Affidavit in time, but was advised by the Registrar that he failed to initial his Affidavit on every page. According to the Applicant’s Condonation Application Affidavit, the Applicant filed his Main Application on 20 September 2018, which date was 19 business days after receipt of the NCC’s Notice of Non-Referral, which was dated 24 August 2018. It therefore follows that, in the event that the letter from the NCC’s is to be interpreted as referring to “business days”, then the Applicant’s Application for Leave to Refer was indeed in time. If the NCC’s letter is to be interpreted by the letter, then the Applicant’s Application for Leave to Refer was late by 7 days. It is to be noted though, that, other than the Applicant’s Condonation Affidavit, the file presented to the Tribunal member for adjudication did not contain any documentary proof of the actual date that the Notice of Non-Referral was actually initially filed with the Tribunal.

26.      I am convinced on the information presented to me that the Applicant’s failure to file the Application for Leave to Refer within the prescribed time period was bona fide and primarily because of the fact that he calculated the period in which he could file the Affidavit according to his interpretation of the letter of Non-Referral from the NCC.

27.      There is nothing indicating that the Applicant intentionally delayed the application to the Tribunal. I am persuaded on the information presented to me that the Applicant’s delay was not caused due to any negligence or tardiness.

28.      In the interest of justice and based on the principle of promoting customer confidence, empowerment and the development of a culture of vigilance and accessibility, I will also take into account the actual number of days that the Applicant delayed.

29.      In this regard, it should be noted that the Tribunal is providing an inquisitorial and more supportive environment for the benefit of consumers generally. However, it is still expected from parties in a matter before the Tribunal to familiarize themselves with and to respect the Rules of Conduct of the Tribunal. It is also expected from parties to enquire from the Tribunal’s Registrar if not clear on any procedural matter relating to their case. One such matter is the time period to file documents with the Tribunal.

30.     The degree of lateness is in my view not excessive in this case.

 

Prejudice

31.       The Respondent did not oppose this application for condonation.

32.      There is no reason to believe that the Respondent will suffer prejudice if condonation is granted. It is indeed clear that the Applicant will suffer negative consequences if he is prevented to have his Application for Leave to Refer considered by the Tribunal.

33.       Further, the nature of the relief sought, namely condoning of the late filing, will support the good administration of justice. I believe that it is in the interest of justice to grant the condonation.

 

Prospects of success and importance of the main matter

34.       The Applicant appears to have prospects of success; in that; he had raised several points outlining his prospects of success, describing the alleged contraventions by the Respondent. Moreover, the matter is clearly important to the Applicant.

 

CONCLUSION

35.      For these reasons, I am persuaded that the Applicant had shown good cause; and that it is in the interest of justice that the condonation application be granted to enable the Applicant to proceed with the Application of Notice to Refer.

 

ORDER

36.         Accordingly, the Tribunal makes the following order:

36.1       The late filing of the Applicant’s Application for Leave to Refer is condoned; and

36.2       There is no order as to costs.

 

 

Thus, handed down; in Pretoria; this 23rd day of January 2019.

 

 

 [Signed.]

DR. MC PEENZE

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] Rule 34 of the National Consumer Tribunal Rules

[3] Mofokeng v Attorney General OFS1958 (4) SA (O).

[4]Oxford English Dictionary, Second Edition at pg 151.

[5]Collins English Dictionary and Thesaurus, Fourth Edition 2011, at pg170.

[6] 2003 (11) BCLR 1212 (CC) at para [11].

[7]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.

[8] 1962 (4) SA 531 (A) at 532C-E.

[9] In Nedcor Investment Bank Ltd v Visser N02002 (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)Bpk1983 (4) SA 212 (0) at 216H-217A

[10] See for example Cairns' Executors v Gaam 1912 AD 181

[11] 1912 AD 181 at 186

[12] Ibid