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[2019] ZANCT 52
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Phumelela Pension Fund, PF 36533 and Another v National Credit Regulator (NCT/117418-2018-59(1)) [2019] ZANCT 52 (21 March 2019)
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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy |
IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case Number: NCT/117418-2018-59(1)
In the matter between:
PHUMELELA PENSION FUND, PF 36533 1st APPLICANT
PHUMELELA PROVIDENT FUND, PF 26534 2nd APPLICANT
and
NATIONAL CREDIT REGULATOR RESPONDENT
In the condonation application between:
NATIONAL CREDIT REGULATOR APPLICANT
and
PHUMELELA PENSION FUND, PF 36533 1st RESPONDENT
PHUMELELA PROVIDENT FUND, PF 26534 2nd RESPONDENT
Coram:
Mr. Potwana – Presiding member
CONDONATION RULING
(Condonation for the late filing of an answering affidavit)
PARTIES
The Applicant
1. The Applicant in this matter is the National Credit Regulator, a juristic person established in terms of Section 12 of the National Credit Act 34 of 2005 (“the NCA”). The Applicant is the Respondent in the main matter. Hereinafter the Applicant will be referred to as “the Applicant”.
The Respondents
2. The First Respondent is Phumelela Pension Fund, a pension fund organisation registered as such in terms of section 4 of the Pension Funds Act 24 of 1956 (“the PFA”).
3. The Second Respondent is Phumelela Provident Fund, a pension fund organisation registered as such in terms of section 4 of the PFA.
4. The First and Second Respondents’ physical address is [….].
5. Hereinafter, the First and Second Respondents will be collectively referred to as “the Respondents”.
TYPE OF APPLICATION AND JURISDICTION
6. In this application, the Applicant seeks condonation for the late filing of its answering affidavit. The application is made in terms of Rule 3(2)(c)(iv) read with Rule 34(1)(a), (b) and/or (d) of the Tribunal Rules.[1]
7. In terms of section 27(a)(i) of the NCA, the Tribunal has jurisdiction.[2]
BACKGROUND
8. On 24 April 2018, the Respondents submitted their respective applications for registration as credit providers to the Applicant. The applications were made in terms of section 40 of the NCA. In response to the applications, the Applicant required, among other conditions, that the Respondents report to the Applicant, on an annual basis, their compliance with the black empowerment legislation and the relevant code. The Respondents explained that the relevant code applied to the top 100 retirement funds in the Republic of South Africa. It did not apply to them. The Applicant responded by confirming its decision to impose the condition.
9. On 4 October 2018, the Respondents filed an application with the Tribunal to review and set aside the decision of the Applicant. The Tribunal’s Registrar (“Registrar”) advised the Respondents that the application did not meet the requirements of the Tribunal’s Rules. The Respondents fervently contested the Registrar’s assertion. The Registrar requested the Respondents to resubmit the application together with an application for condonation. The Respondents complied. On 18 December 2018, the Tribunal granted the Respondents’ application for condonation.
FACTS
10. On 22 January 2019, the Applicant served the condonation application, which is the subject matter of this ruling, on the Respondents by email (by consent), and filed the same with the Registrar. The application was filed using Form TI.r34. In “Part C: Order sought from the Tribunal” of this form, the Applicant stated that it seeks condonation for non-compliance, and refers the Tribunal to an affidavit that is annexed to the condonation application. The deponent is Nthupang Ngobeni (“Ngobeni), an adult female who is employed as a Senior Legal Advisor by the Applicant.
11. In her affidavit; Ngobeni stated that the period between 24 December 2018 and 2 January 2019 was a dies non for the Applicant. Based on this, the Applicant’s answering affidavit was due on 18 January 2019. Also, she averred that the Applicant’s offices closed on 22 December 2018 and re-opened on 7 January 2019. As a result of the closure of the Applicant’s offices, the Applicant could not finalise its answering affidavit within the prescribed timeframes.
12. In addition, Ngobeni submitted that the Respondents would not be prejudiced by the filing of the answering affidavit, as they will be able to challenge the contents of the affidavit during the hearing. She stated that:
“By contrast, because the principal matter involves issues of law and precedent that must be considered and addressed fully, irreparable prejudice would occur to the Applicant if its answering affidavit were to be excluded on the grounds of lateness, as the Applicant would then be deprived of the opportunity to answer to any of the allegations raised by the Respondent in its Form TI.59 application.”
13. The Applicant’s answering affidavit was served on the Respondents on 22 January 2019 by email, and filed with the Registrar on 24 January 2019.
14. The Respondents did not file an affidavit opposing the application for condonation.
ISSUES TO BE DECIDED
15. The Tribunal must decide, on a balance of probabilities, whether the Applicant has shown good cause for the late filing of its answering affidavit to be condoned.
THE LAW
16. Rule 34 (1) of the Tribunal Rules states that:
“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.”
17. Rule 34 (2) of the Tribunal Rules states “The Tribunal may grant the order on good cause shown”.
18. Rule 13 of the Tribunal Rules states 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.”
19. 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].
20. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[5] it was held that the standard of considering an application of this nature is the interests of justice.
21. 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 discretion on an objective conspectus of all the facts. Factors that are relevant include but are not limited to:
21.1. the nature of the relief sought;
21.2. the extent and cause of the delay;
21.3. the effect of the delay on the administration of justice and other litigants;
21.4. the reasonableness of the explanation for the delay;
21.5. the importance of the issue to be raised in the intended appeal; and
21.6. the prospects of success.[6]
22. In Melane v Santam Insurance Company Limited[7] 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).”
23. From the dictum in Melane, it is clear that the above factors are interrelated and should not be considered separately.
CONSIDERATION OF THE MERITS
24. In evaluating the merits of the application, the Tribunal will consider the following factors –
24.1 The application for condonation is not opposed by the Respondents;
24.2. The degree of lateness is minimal, to wit: less than 10 days;
24.3. The Applicant’s explanation for the late filing of its answering affidavit is reasonable;
24.4. The filing of the Applicant’s answering affidavit will not hinder the administration of justice;
24.5. The Respondents will not be prejudiced by the filing of the Applicant’s answering affidavit; and
24.6. The matter is of substantial importance to the parties.
CONCLUSION
25. The Tribunal finds that the factors listed above constitute good cause in these specific circumstances. The Tribunal therefore grants the application and condones the Applicant’s late filing of its answering affidavit.
26. As the late filing of the Applicant’s answering affidavit has been condoned, the normal time periods and processes for the filing of a replying affidavit, if any, as set out in the Tribunal Rules, will apply.
ORDER
27. Accordingly, for the reasons set out above, the Tribunal makes the following order:-
27.1. Condonation is hereby granted to the Applicant for the late filing of its answering affidavit; and
27.2. No order is made as to costs.
Thus done and signed at Centurion on 21 March 2019.
[signed]
……………..
Mr A Potwana
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] Section 27(a)(i) of the NCA provides that “The Tribunal or a member of the Tribunal acting alone in accordance with this Act or the Consumer Protection Act, 2008 may adjudicate in relation to any application that may be made to it in terms of this Act in respect of such an application.”
[3] Oxford English Dictionary, Second Edition at pg 151.
[4] Collins English Dictionary and Thesaurus, Fourth Edition 2011, at pg170.
[5] 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] 1962 (4) SA 531 (A) at 532C-F.