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JDG Trading (Pty) Ltd v National Credit Regulator (NCT/29052/2015/141(1) NCA – Rule 34) [2019] ZANCT 40 (22 April 2019)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

 Case Number: NCT/29052/2015/141(1) NCA – Rule 34

 

In the matter between:

 

JDG TRADING (PTY) LTD                                                                      APPLICANT

 

and

 

NATIONAL CREDIT REGULATOR                                                        RESPONDENT

 

IN RE:

 

NATIONAL CREDIT REGULATOR                                                        APPLICANT

 

and

 

JDG TRADING (PTY) LTD                                                                     1ST RESPONDENT

JDG MICRO LIFE LTD                                                                           2ND RESPONDENT

 

Coram:

Adv. J. Simpson                   - Presiding Tribunal Member

 

 

RULING AND REASONS

(CONDONATION FOR LATE FILING OF SUPPLEMENTARY ANSWERING AFFIDAVIT)

 

APPLICANT

1.         The Applicant in this matter is JDG Trading (Pty) Ltd, a registered credit provider (“the Applicant” or “JDG”). The Applicant is the 1st Respondent in the main matter.

RESPONDENT

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

BACKGROUND

3.         The NCR has applied for a finding of prohibited conduct to be made against JDG. Essentially the NCR alleges that JDG unlawfully sold disability insurance products to its clients and further contravened the National Credit Act 34 of 2005 (“the NCA”) by including “Club” fees in its credit agreements.

4.         Procedurally, this matter has a very long and convoluted history with numerous applications for condonation having been considered and granted. For the purposes of this ruling it is not necessary to set out the entire history.

5.         On 7 December 2018 the Tribunal issued a ruling granting the NCR condonation to file further supplementary founding affidavits. The affidavits had to be filed within 10 business days of the order. After being served with the supplementary founding affidavits, JDG had to file its answer to the affidavits within 15 business days. The NCR served the supplementary founding affidavit on 14 December 2018. JDG was unable to file its answering affidavit within the 15 business days and is now seeking condonation for having filed them late.

6.         According to JDG the affidavits were to be filed on 16 January 2019. Due to the traditional holiday period in December and January it was unable to prepare the necessary documents. Its representatives were not available during this time. It only managed to deliver and file the affidavits on 12 February 2019. JDG submits that there is no prejudice to the NCR as it would have anticipated that JDG would respond to its supplementary affidavits. The supplementary affidavits are further important for the proper adjudication of the matter before the Tribunal. The NCR has not opposed the application for condonation.

APPLICABLE SECTIONS OF THE NCA AND RULES[1]

7.         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.”

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

APPLICABLE LEGAL PRINCIPLES

9.         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].

10.      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.

11.      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:

11.1   the nature of the relief sought;

11.2   the extent and cause of the delay;

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

11.4   the reasonableness of the explanation for the delay;

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

11.6   the prospects of success.[5]

12.      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).”

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

CONSIDERATION OF THE MERITS

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

14.1   The application for condonation is not opposed by NCR;  

14.2   There is no indication of JDG unnecessarily delaying the process or wilfully delaying the filing of the affidavit;  

14.3   The delay in filing the affidavit is not excessive under the circumstances; and

14.4   JDG would suffer undue prejudice should the condonation be refused.

15.      The Tribunal finds that the factors listed above constitute good cause in these specific circumstances. The Tribunal therefore grants the application and the late filing of the answering affidavit by JDG is condoned.

16.      As the late filing of the answering affidavit has been condoned, the NCR may file its replying affidavit (in response to the JDG’s supplementary answering affidavit) within a period of 15 business days after the issuing of this Ruling.

ORDER

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

17.1Condonation is hereby granted to JDG for the late filing of its answering affidavit;

17.2   The NCR may file a replying affidavit in response to the supplementary answering affidavit within 15 business days after this Ruling is issued to the parties; and

17.3   No order is made as to costs.

 

 

DATED 22 APRIL 2019

 

[signed]

Adv J Simpson

Presiding Tribunal 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, as amended

[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-F.