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[2019] ZANCT 43
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TGI Autobrokers (Pty) Ltd v National Credit Regulator (NCT/122551/2018/140(1)) [2019] ZANCT 43 (20 April 2019)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case Number: NCT/122551/2018/140(1)
In the matter between:
TGI AUTOBROKERS (PYT) LTD APPLICANT
and
NATIONAL CREDIT REGULATOR RESPONDENT
Coram:
Prof T Woker – Presiding member
CONDONATION RULING AND REASONS
INTRODUCTION
1. In this application for condonation:
1.1. The Applicant, which is the Respondent in the main matter, is TGI Autobrokers (Pty) Ltd a private company duly registered within the company laws of South Africa with company registration number 2015/346426/07;
1.2. The Respondent, which is the Applicant in the main matter, is the National Credit Regulator, a juristic person established by section 12 of the National Credit Act, 34 of 2005 (the Act); and
1.3. The Applicant and the Respondent will be referred to as they appear in the main matter.
BACKGROUND
2. In the main matter, the Applicant seeks an order inter alia to declare the Respondent to be in repeated contravention of the Act and for certain penalties to be imposed on the Respondent.
3. On or about 14 December 2018 the Applicant served the application in the main matter on the Respondent. In terms of the Tribunal Rules,[1] if the Respondent intends to provide an answer to the application it is required to file its answering affidavit within 15 days of having received the application.
4. To date the Respondent has not yet filed an answering affidavit.
5. The Respondent has filed an application to condone non-compliance with the Tribunal rules and has filed an affidavit by Tyrone George Incendiario (Incendiario), the sole director of the Respondent in which certain submissions have been made in support of its application to condone the late filing of the answering affidavit.
6. Incendiario states that when the application in the main matter came to his attention he immediately sought legal advice. Incendiario’s attorney informed the Applicant that the Respondent intended to oppose the application and requested certain information from the Applicant. This information relates to allegations made in the Applicant’s founding affidavit regarding previous complaints against the Respondent. The Applicant has not provided the Respondent with this information as it is of the view that these are internal documents which do not form part of the present application before the Tribunal.
7. In order to obtain this information the Respondent served an application in terms of the Promotion of Access to Information Act No 2 of 2002 on the Applicant on 23 January 2019.
8. Incendiario states that the Respondent has been unable to finalise its answering affidavit because the Applicant has failed to provide the Respondent with the requested documents.
ISSUE TO BE DECIDED
9. The issue I am required to decide is whether the application to condone the late filing of the answering affidavit should be granted or not.
10. The Applicant has not opposed the condonation application.
LEGAL PRINCIPLES
11. Rule 34 (1) (a) 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.
12. 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”.
13. 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].
14. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[4] it was held that the standard for determining an application of this nature is the interests of justice.
15. 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 which has been raised; and the prospects of success.[5]
16. In Melane v Santam Insurance Company Limited[6] 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
17. The dictum in Melane reveals that these factors are interrelated and should not be considered separately.
18. In summary the Respondent is required to provide a reasonable explanation for its default and to state on oath that it has a reasonable defence to the application.[7]
19. The granting of condonation is not a mere formality; it is only granted after consideration of all the facts.
CONSIDERATION OF THE MERITS
20. Incendiario has stated that the Respondent intends to oppose the application in the main matter. However, the Respondent has failed to file an answering affidavit in which this is stated, nor has he provided any indication of what the Respondent’s defence is. What the Respondent is requesting is an open-ended condonation of its failure and there seems to be no indication of when an answering affidavit will be filed. Two of the factors which I am required to consider are the degree of lateness and the Respondent’s prospects of success in the main matter. At this stage I have no idea when or if the Respondent intends to file an answering affidavit and there is no information before me regarding any defence which the Respondent intends to raise.
21. Condonation for the late filing of a document can only be granted when that document is actually filed with the Tribunal. The Respondent will then provide an explanation regarding why it was unable to file its application within the required time period.
CONCLUSION
22. The Respondent has failed to file an answering affidavit, therefore I cannot grant condonation for its late filing at this stage.
23. The Respondent’s application for condonation is premature and such application can only be considered once the Respondent actually files its answering affidavit.
ORDER
24. Accordingly, the Tribunal makes the following order:
24.1 The application for condonation for the late filing of the Respondent's answering affidavit is dismissed; and
24.2 However, should the Respondent choose to file an answering affidavit in due course; it can at that point in time file an application for condonation; and set out the factors which led to it being unable to file its answering affidavit within the required 15 day time period.
Thus handed down; in Centurion; this 20 day of April 2019
PROFESSOR T WOKER
PRESIDING MEMBER
[1] Regulations for Matters Relating to the Functions of the Tribunal and Rules for the Conduct of Matters fore the National Consumer Tribunal, 2007
[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-E.
[7] Dalhouzie v Bruwer, 1970 (4) SA 566 (C); Creative Car Sounds & Another v Auto Mobile Radio Dealers Ass 1989 (Pty) Ltd, 2007 (4) SA 546 (D)