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Cronje and Another v Standard Bank of South Africa Limited (NCT/103657/2018/141(1)(b)) [2019] ZANCT 33 (23 March 2019)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case Number: NCT/103657/2018/141(1)(b)

In the matter between:

                                   

ANDRE CRONJE                                                                                                         FIRST APPLICANT

SANDRA CRONJE                                                                                              SECOND APPLICANT

 

and

 

THE STANDARD BANK OF SOUTH AFRICA LIMITED                                              RESPONDENT

 

In the first condonation application between:

 

THE STANDARD BANK OF SOUTH AFRICA LIMITED                                             APPLICANT

 

and

 

ANDRE CRONJE                                                                                                       FIRST RESPONDENT

SANDRA CRONJE                                                                                              SECOND RESPONDENT

 

In the second condonation application between:

 

ANDRE CRONJE                                                                                                      FIRST APPLICANT

SANDRA CRONJE                                                                                            SECOND APPLICANT

 

and

 

THE STANDARD BANK OF SOUTH AFRICA LIMITED                                            RESPONDENT


Coram:

 

Trevor BaileyPresiding member


 

CONDONATION RULING


PARTIES

 

1.           In this application for condonation:

1.1.         the first and second applicants are respectively Andre and Sandra Cronje, adult consumers, married in community of property and who reside at 3 Seaview Terrace, Port Alfred, Eastern Cape (“the applicants”);

1.2.         the respondent is The Standard of Bank of South Africa Limited, a company incorporated in terms of the company laws of the Republic of South Africa and a credit provider registered in terms of the National Credit Act, 2005 (“the Act”) with registration number NCRCP15 (“the respondent”); and

1.3.        the applicants and the respondent are also the applicants and the respondent in the main matter.

 

APPLICATION

2.           In the main matter the applicants have made an application to condone the applicants’ late filing of their notice of application to refer their complaint directly to the National Consumer Tribunal (“the Tribunal”), with leave of the Tribunal, in terms of section 141(1)(b) of the Act (“the leave application”).

3.          The respondent has made an application to condone the late filing of the respondent’s answering affidavit (“the respondent’s answering affidavit”) to the applicants’ late filing of the leave application (“the respondent’s condonation application”). This is the first condonation application.

4.          The applicants have in turn made an application to condone the applicants’ late filing of their answering affidavit (“the applicants answering affidavit”) to the respondent’s condonation application. This is the second condonation application. It is necessary to first determine the second condonation application, which is made in terms of rule 34 (1) of the rules (“the rules”)[1]; and is the subject of this condonation ruling.

 

BACKGROUND

5.           On 15 September 2016 the applicants initiated a complaint against the respondent to the National Credit Regulator (“the NCR”) in terms of section 136 of the Act. The applicants also initiated what the NCR describes as a ‘supplementary complaint’ against the respondent on 24 May 2017.

6.           The applicants allege in their complaints that the respondent:

6.1.         violated section 15 (2) of the Matrimonial Properties Act, 1984 by entering into a credit agreement with a spouse married in community of property without the written consent of the other spouse;

6.2.          failed to comply with section 129 of the Act when it instituted legal proceedings against the second applicant while the Ombudsman for Banking Services and the NCR were investigating their complaint against the respondent. The notice in terms of section 129 of the Act was also issued unlawfully by an attorney and not by the respondent, as required by the Act;

6.3.         through its subsidiary, Blue Bean, breached section 40 (2) (b) of the Act because credit agreement number 51205704006871070 was concluded with Blue Bean, which is not a registered credit provider; and

6.4.         violated section 65 of the Act when it failed to supply electronic and written application documents to the applicants, despite the applicants having requested the respondent to do so.     

 

7.           On 19 October 2017 the NCR issued a notice of non-referral (“the notice of non-referral”) to the applicants in terms of section 139 (1) (a) of the Act because:

7.1.         the NCR is not clothed with the statutory powers to either declare a credit agreement void or to receive and investigate complaints concerning contraventions of an Act other than the Act;

7.2.          the Affordability Assessment Regulations[2] came into effect on 13 September 2015 and did not apply when the credit agreements in question were concluded, or the credit card limits were increased; and

7.3.         the respondent complied with the Act when it issued the section 129 notices.

 

8.           It is appropriate to briefly set out the events that have led to this condonation application.

9.           The applicants were required in terms of the rules to refer the leave application to the Tribunal within 20 business days from the date of the notice of non-referral. The applicants initially filed the leave application in terms of section 137 instead of section 141 of the Act. They resubmitted the leave application together with an application to condone the late filing of the leave application approximately five months after the initial 20 business days that they had to refer the leave application to the Tribunal.

10.        On 15 June 2018 the Tribunal issued a ruling of a single member of the Tribunal that refused to condone the applicants’ late filing of the leave application (“the refusal”).

11.        The applicants appealed against the refusal. On 25 October 2018 a three-member Tribunal panel upheld the appeal and overturned the refusal.

12.        On 26 October 2018 the office of the Registrar of the Tribunal (“the registrar”) issued a notice of complete filing for the leave application. That notice records that the respondent may oppose the leave application by serving an answering affidavit within the 15 business days period required by the Tribunal.

13.        On 22 November 2018 the respondent served the respondent’s condonation application on the   applicants.

14.        On 30 November 2018 the registrar issued a notice of set down for the hearing of the leave application on 23 January 2019.

15.        On 19 December 2018 the registrar issued a notice of filing for the respondent’s condonation application.

16.        On 20 December 2018 the registrar issued a notice removing the leave application from the hearing roll on 23 January 2018 [sic].

17.        The applicants oppose the respondent’s condonation application. On 31 January 2019 the applicants filed this condonation application to condone the late filing of the applicants answering affidavit to the respondent’s condonation application.

18.        On 1 February 2019 the registrar issued a notice of filing for this condonation application.

19.        The respondent does not oppose this condonation application.

 

ISSUE TO BE DECIDED

20.        The issue before me is a narrow one. I am required to decide whether the Tribunal should condone the applicants’ failure to timeously file the applicants answering affidavit to the respondent’s condonation application.

 

SUMMARY OF APPLICANT’S SUBMISSIONS

Reasons for the delay

21.        The applicants disputed that the respondent’s condonation application that the respondent served on the applicants on 22 November 2018 was of further effect once the registrar issued the notice of set down on 30 November 2018 for the leave application to be heard on 23 January 2019. Rather, the applicants became bound to file the applicants answering affidavit within 15 business days from 19 December 2018, being the date on which the registrar issued the notice of filing in the respondent’s condonation application. The applicants filed the applicants answering affidavit on      14 January 2019, which was three days before the 15 business days expired on 17 January 2019.  However, the registrar insisted that the applicants file this condonation application for the late filing of the applicants answering affidavit.

LEGAL PRINCIPLES

22.        It is convenient to set out the relevant statutory and regulatory provisions as well as the case law governing this condonation application.

23.        The Tribunal has jurisdiction to hear an application of this nature in terms of section 27 of the National Credit Act, 2005 (the NCA) read with section 75(1)(b) of the CPA. Section 75 of the CPA provides that:

If the Commission issues a notice of non-referral in response to a complaint, other than on the grounds contemplated in section 116, the complainant concerned may refer the matter directly to… the Tribunal, with leave of the Tribunal.”    

 

24.        Rule 7(2) of the rules provides that an application is filed by delivery of the relevant Form and all the documents listed in column e of Table 2, if applicable, or as required elsewhere in the rules, to the registrar. Table 2 requires the applicant to file the leave application with the Tribunal within 20 business days of the date of the notice of non-referral or within a longer time permitted by the Tribunal.

25.        Rule 34(1)(a) of the rules provides that a "party may apply to the Tribunal in Form TI.r34 for an order to condone the late filing of a document or application".  Similarly, rule 34(1)(b) empowers the Tribunal to "extend or reduce the time allowed for filing or serving". Rule 34(2) provides that the Tribunal may grant the order on good cause shown.

26.        Rule 13 requires a person who wishes to oppose an application of this nature to serve an answering affidavit on the applicant concerned and any other persons on whom the application was served within 15 days of the date of the application.

27.        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”.[3] It can also be defined to mean “overlook or forgive (wrongdoing)”.[4]

28.        The standard for determining an application of this nature is the interests of justice.[5] 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 a 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.[6]  Ordinarily these factors are interrelated and should not be considered separately.[7]

 

CONSIDERATION OF THE MERITS

29.        I now turn to the merits of this condonation application. I have a discretion, which I must exercise judiciously, when deciding whether it is in the interests of justice to grant the relief the applicants seek in this condonation application. 

30.        The applicants’ clarion call was that the notice of set down that was issued on 30 November 2018 for the leave application to be heard on 23 January 2019 meant that the applicants were no longer bound to file the applicants answering affidavit by 13 December 2018.

31.        Legally, in my view, whether the notice of set down interrupted the period within which the applicants had to file the applicants answering affidavit is not relevant to the question I must decide in this condonation application. Rather, I must decide whether the applicants have shown good cause for me to grant the relief they seek.

32.        Even if the applicants filed the applicants answering affidavit no more than a few weeks late, I am satisfied that the applicants acted in good faith and always intended to file the applicants answering affidavit timeously. The applicants communicated with the registrar on 23 and 27 November 2018; filed the applicants answering affidavit with the registrar on 15 January 2019; and filed this condonation application on 31 January 2019 after the registrar informed the applicants that it was necessary to bring this condonation application.

33.        This matter is clearly important to the applicants.  The Tribunal has already found that the applicants have prospects of success in the leave application. Moreover, the respondent has not opposed this condonation application.

 

CONCLUSION

34.        For these reasons I am persuaded that the applicants have shown good cause and it is in the interests of justice to condone the applicants’ failure to timeously file the applicants answering affidavit.

35.        The normal time periods and processes following the filing of an answering affidavit, as set out in the rules, will apply.

 

ORDER

36.        Accordingly, the Tribunal makes the following order:

36.1.        the applicants’ failure to timeously file the applicants answering affidavit to the respondent’s condonation application is condoned; and

36.2.        there is no order as to costs.

 

DATED ON THIS 23rd DAY OF MARCH 2019

 


TREVOR BAILEY

PRESIDING MEMBER

Cronje.StdBank.103657.18.141.1




[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] Published in Government Gazette No 38557 of 13 March 2015.

[3]Oxford English Dictionary, Second Edition at page 151.

[4]Collins English Dictionary and Thesaurus, Fourth Edition 2011 at page 170.

[5] Head of Department, Department of Education, Limpopo Province v Settlers Agricultural High School and others 2003 (11) BCLR 1212 (CC) at para [11].

[6]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.

[7] Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A) at 532C-E.