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Du Plessis N.O and Others v National Credit Regulator (NCT103940/2018/57(1)) [2019] ZANCT 34 (26 March 2019)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT103940/2018/57(1)

In the matter between:

 

LEON ANTONIUS DU PLESSIS N.O                                          FIRST APPLICANT

EULIEN DU PLESSIS N.O                                                           SECOND APPLICANT

PCL TRUST       t/a PCL CASH LOANS

LOUIS TRICHARDT                                                                     THIRD APPPLICANT

 

AND

 

NATIONAL CREDIT REGULATOR                                             RESPONDENT

 

IN RE

 

NATIONAL CREDIT REGULATOR                                              APPLICANT

 

AND

 

PCL TRUST T/A PCL CASH LOANS-   

LOUIS TRICHARDT NCRCP1520                                              RESPONDENT

 

CONDONATION JUDGMENT

 

1.      APPLICANTS

The first Applicant is Leon Antonius Du Plessis, an adult male, residing at Montana, Pretoria, ("the first Applicant"), in his capacity as trustee of the PCL Trust t/a PCL Cash Loans- Louis Trichardt.

 

1.1      The second Applicant is Eulien Du Plessis, an adult female, residing at Montana, Pretoria, in her capacity as trustee of the PCL Trust t/a PCL Cash Loans- Louis Trichardt, ("the second Applicant").

1.2      The third Applicant is PCL Trust t/a PCL Cash Loans- Louis Trichardt, being an arrangement as defined in the Trust Property Control Act 57 of 1988, the assets and liabilities of which vest in the first and second Applicant, ("the third Applicant").  The third Applicant is cited as the Respondent in the main case.

1.3     The first Applicant has made a point of noting that the third Applicant is incorrectly cited by the Respondent in the main application and that it should have been the trustees (being the first and second Applicant) who should have been cited instead.

 

2.      RESPONDENT

The Respondent in this application is the National Credit Regulator, (NCR”), a juristic entity established in terms of section 12 of the National Credit Act 34 of 2005, with physical address at 127 Fifteenth Road, Randjespark, Midrand.  The Respondent is the Applicant in the main case.

 

3.      APPLICATION

This is an application to the National Consumer Tribunal ("the Tribunal") to condone the Applicants non-compliance with its rules. The Application is brought in terms of Rule 34 of the Rules of the Tribunal[1]The Respondent did not oppose the application.

 

4.      BACKGROUND TO THE CONDONATION APPLICATION

4.1     The Respondent in this matter initiated a case, against the third Applicant, having made a series of allegations regarding the third Applicant’s conduct as a credit provider.

4.2      An affidavit was deposed to by a Ms Jacqueline Peters of the NCR on the 27 March 2018, stating that the [third Applicant] is in repeated contravention of the Act namely:

4.2.1    Section 52(5)(c) read with General Condition 7 of its Conditions of Registration;

4.2.2    Section 76;

4.2.3    Section 52 (5)(b) read with Section 52(5)(c) and General Condition 5 of its Conditions of Registration;

4.2.4    Section 92(1) read with regulation 28(1)(b) and Form 20;

4.2.5    Section 170 read with Regulation 55(1)(b)(v);

4.2.6    Section 81(2)(a)(ii) read with Regulation 23 A;

4.2.7    Section 81(2)(a)(iii) read with Regulation 23 A;

4.2.8    Section 81(3) read with Section 80(1)(a);

4.2.9    Section 81(3) read with section 80(1)(b);

4.2.10 Section 170 read with Regulation 55(1)(b)(vi); and

4.2.11 Section 91(2) read with Section 90(2)(l)(i) of the Act.

 

4.3      In addition to a fine, the Respondent also requested that the Tribunal cancel the [third Applicant’s] registration as a credit provider in terms of Section 150(a) of the Act.

4.4      The matter was set down for a default hearing on 3 July 2018, wherein the presiding officer at the hearing questioned the method of service to the third Applicant.  The Tribunal postponed the matter in order for the Applicant to serve the application on the verified physical address of the [third Applicant] and that the Applicant must confirm that the Respondent is correctly cited.[2]

4.5      The First Applicant states that the service was effected only on him via email, it was not correctly served on the second Applicant nor had there been proper service of the main application on the third Applicant.

4.6      The First Applicant argues that the main application is thus irregular, premature and does not comply with Rule 30.

4.7      The First Applicant explains that he received two emails from the Tribunal staff on 17 September 2018 to which the notice of set down and in index to the main case was attached.   The emails were apparently sent on 14 September 2018, but due to his travelling to an area where signal distribution was poor, he did not receive the emails on the day they were sent.

4.8      It also appeared from the Tribunal’s email that a notice of set down was emailed on 24 August 2018, but emailed to an incorrect address. He did not receive the email.

4.9      As he was unaware of the set down, and only became aware of it on 17 September 2018, he had enquired why the notice was sent to him when the third Applicant is no longer in business.

4.10     On 18 September 2018 he received an email from the NCR requesting for the application to be served on him via email. However; no response was forthcoming.

4.11     It appeared that the email of the main application of 30 August 2018, referred to by the NCR; was also sent to the incorrect email address. The first Applicant did not receive the email.

4.12     The NCR then advised the Tribunal that the First Applicant consents to the postponement. It also advised that the First Applicant be afforded 15 business days to submit an answering affidavit, which would be on or before 11 October 2018.

4.13     The First Applicant, due to his travels and his attorney’s availability, was only able to meet with his attorney on 18 October 2018. The First Applicant also briefed counsel on 31 October 2018 and 5 November 2018. This enabled the attorney to prepare an affidavit to the main application and an application for condonation for the late delivery thereof. This preparation was finalised on 21 November 2018.

 

5.      APPLICABLE  RULES  AND  CASE LAW

5.1      Rule 34 (1) states "A party may apply to the Tribunal in Form Tl r.34 for an order to:-

-       condone late filing of a document or application;

-       extend or reduce the time allowed for filing or serving;

-       condone the non-payment of a fee; or

-       condone any other departure from the rules  or  procedures."

 

5.2      Rule 34 (2) states "The Tribunal may grant the order on good cause shown".

5.3      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:

-the Applicant; and

-every other person on whom the application was served.

 

Rule 13(2) states that 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".

 

5.4     The Tribunal may; therefore; grant an application for condonation; if the Applicant is able to show good cause as to why the Applicant did not comply with the Rules.[3]

 

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

 

5.6      Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. 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]

 

5.7 In Melane v Sanlam Insurance Company Limited 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 Development1965 (2) A 135 (A) 140H-141B; Buthelezi & Others v Eclipse Foundries Ltd 18 ILJ 633 (A) at 6381-639A) ".  Similar factors were also discussed by the court in the earlier case of Melane v Sanlam Insurance Company Limited[6] where it was pointed out that a court has a discretion which should be exercised judicially upon consideration of all the facts.[7]

 

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

6.      CONSIDERATION OF THE MERITS

 

6.1     In evaluating the merits of the application the Tribunal considered the following factors

6.1.1 The Act, the Rules of the Tribunal and relevant case law;

6.1.2 The First Applicant was not aware of the main application until after the matter was postponed by the Tribunal, and he was then contacted via email by the Staff and the Respondent in this matter; and

6.1.3 The Application has provided a reasonable explanation for the delay.  The First Applicant communicated without delay with the relevant stakeholders and sought the assistance of legal counsel. The delay in setting up appointments timeously was out of his control.

 

6.2  The reasons advanced by the First Applicant for failing to file his application in accordance with the Tribunal Rules are:  

6.2.1 the delay in delivering the answering affidavit in the main case was reasonable and not attributable to any malice on his part;

6.2.2 the Respondent would not be adversely affected if condonation is granted; and

6.2.3 if the condonation was refused, the applicants stand to suffer substantial harm as they believe that they would be denied the opportunity to raise sound and bona fide defences to an application that they believe is defective.

 

6.3  It is for these reasons that the Applicants were not placed in a position to file    the application in accordance with the Rules of the Tribunal.

6.4 In evaluating the merits of the application the Tribunal finds that firstly, the First Applicant has provided a reasonable explanation for its delay in filing his affidavit.

6.5 Secondly, with regard to the Applicants’ case, the Tribunal is of the view that the degree of lateness in this case could have been outweighed by consideration of the Applicants’ prospects of success; and the importance of the matter to both parties.[8]

6.6 In Cairns' Executors v Gaarn[9] Innes JA remarked that “It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of (an) indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the rules have purposely made very extensive, and which it is highly desirable not to abridge.  The Applicant for condonation must show something which entitles him to ask for the indulgence of the court and what that something is, depends on the circumstance of each particular application, what that something is, depends on the circumstances of each particular application.[10]

6.7 The Tribunal finds that it is in the interests of justice and in promotion of the spirit and purpose of the Act, that the parties be given an opportunity to place the full facts of the matter before the Tribunal. This would be in order to establish whether the Applicant has a bona fide application and the Respondent has a bona fide defence. The Tribunal therefore; grants the application for condonation. The normal rules will apply for the filing of the replying affidavit. Once these affidavits are received the Tribunal will consider the issue of whether to grant leave to the Applicants to have the matter heard by the Tribunal.

 

7.      RULING

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

7.1 The application for condonation is granted;

7.2 The Applicant must file her application for leave to refer to the Tribunal      within 20 days of the issuing of this judgment; and

7.3 There is no order as to costs.

 

Thus done on this 26 March 2019.

   

 

 [Signed]

K MOODALIYAR

TRIBUNAL MEMBER

 




[1] For the Conduct of Matters before the National Consumer Tribunal published under GN789 in GG30225 of 28 August 2007 as amended by GenN428 in GG34405 OF 29 June 2011.

[2] The National Credit Regulator v PCL Trust T/A PCL Cash Loans NCT/103940/2018/57(1), dated 4 July 2018.

[3] Rule 34(2) of the Rules.

[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-F.

[7] See also See also 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 199415 ILJ 610 (LAC) at 613E.

 

[8] See Bridget Lyn Edwards v Accordian Investments (Pty) Ltd NCT/82942/2017/75(1)(b).

[9] 1912 AD 181 at 186. 

[10] Gatyeni v First National Bank, Case No: NCT/26057/2015/141(1)-R34.