South Africa: National Consumer Tribunal Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: National Consumer Tribunal >> 2019 >> [2019] ZANCT 56

| Noteup | LawCite

Williams v National Credit Regulator and Another ;In Re National Credit Regulator v Grundling and Another (NCT/123277/2019/137(1)(b)) [2019] ZANCT 56 (30 April 2019)

Download original files

PDF format

RTF format


IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

                                                                          Case Number: NCT/123277/2019/137(1)(b)

In the matter between:

NADEEM WILLIAMS                                                         APPLICANT

and

NATIONAL CREDIT REGULATOR                                   FIRST RESPONDENT

GERALDINE GRUNDLING                                               SECOND RESPONDENT

In Re

NATIONAL CREDIT REGULATOR                                     APPLICANT

and

GERALDINE GRUNDLING                                                  FIRST RESPONDENT

NADEEM WILLIAMS                                                            SECOND RESPONDENT

Coram

Ms. M Nkomo                                   – Presiding Tribunal Member

Date received for adjudication   12 April 2019

Date of ruling                                  30 April 2019                    

RULING AND REASONS

(CONDONATION FOR LATE FILING OF REPLYING AFFIDAVIT)

INTRODUCTION

1.    In this application for condonation:

1.1      The Applicant is NADEEM WILLIAMS, (hereinafter referred to as "Williams”), a registered debt counsellor whose registration number with the National Credit Regulator is NCRDC19. Williams currently conducts business in Cape Town[1], and is the Second Respondent in the main matter;

1.2      The First Respondent is the NATIONAL CREDIT REGULATOR, (hereinafter referred to as "the NCR”), a juristic person established in terms of Section 12 of the National Credit Act 34 of 2005 (hereinafter referred to as "the NCA" or “the Act”). The NCR is the Applicant in the main matter.

1.3      The Second Respondent is GERALDINE GRUNDLING, (hereinafter referred to as “Grundling”), whose registration with the NCR as a debt counsellor lapsed. According to the NCR[2], Grundling’s registration was eventually canceled as a result of non-payment of her renewal fees. Grundling’s registration number with the NCR was NCRDC582, and she previously conducted business at Credit Matters CC in Gape Town. Grundling is the First Respondent in the main matter.

2          Williams is applying for condonation of the late filing of the answering affidavit to the application made by the NCR in the main matter.

3          Both the NCR and Grundling are not on record before the National Consumer Tribunal (hereinafter referred to as “the Tribunal”), and therefore are not considered as opposing this condonation application.

BACKGROUND TO THE CONDONATION APPLICATION  

4          In the main matter:

4.1      The NCR is applying for leave to bring a complaint directly to the Tribunal in terms of section 137 of the Act;

4.2      According to the NCR, Grundling had previously conducted debt counselling business at Credit Matters CC, which was converted to a private company during July 2018. Williams is a director of both Credit Matters CC and Credit Matters (Pty) Ltd and currently conducts debt counselling business at Credit Matters (Pty) Ltd;4.3      The NCR received a complaint during October 2011 from Elaine Anne Redfearn and Nigel Anthony Redfearn (hereinafter referred to as “the consumers”) wherein the consumers lodged a complaint against a debt counseling company known as Credit Matters. The NCR established that the consumers had applied for debt review and were registered under the profile of Grundling;

4.4      In this complaint, the consumers alleged that despite making all the expected payments according to the payment proposals, their application for an order of debt re-arrangement had been withdrawn from court. This resulted in certain credit arrangements being terminated from the debt review process and legal action being taken against the consumers. According to the NCR, Credit Matters had admitted that the matter was withdrawn from court as a result of an error whereby the attorneys where not advised that legal fees were paid. Credit Matters then undertook to appoint new attorneys to attend to the application for debt-rearrangement;

4.5      The NCR received a second complaint against Credit Matters lodged by the consumers during December 2013. In this complaint, the consumers alleged that the Grundling and Williams had not complied with the undertaking to obtain a court order for their debt to be re-arranged. Notwithstanding the consumers making payments in terms of the payment proposal, certain credit providers terminated the debt review process and started legal action against the consumers;

4.6      Based on these complaints, the NCR investigated Grundling, and as a result thereof, the consumers were refunded the legal fees paid to Credit Matters. The NCR submits that the investigations are of no relevance and it would accordingly not be relying thereon in the main matter.[3]

4.7      The NCR alleges that by failing to obtain the necessary order for re-arrangement, Grundling and Williams contravened various sections of the Act and General Conditions A1[4] and A2[5]. The NCR alleges that both Grundling and Williams did not comply with the requirements of the Act in the operation of the business of a  debt counsellor, and did not provide debt counseling in a manner that is consistent with the purpose and requirements of the Act

4.8      The NCR seeks from the Tribunal the following relief:

4.8.1 That an finding of prohibited conduct for contravention of section 86(7) read together with Section 86(10), as well as Section 52(5)(c) read together with General Conditions A1 ad A2 be made against Grundling and Williams;

4.8.2 That a certificate of damages in terms of Section 164(3)(b) of the Act be provided to the consumers (Elaine Redfearn and Nigel Redfearn); and

4.8.3 That any appropriate order required to give effect to the consumers’ rights in terms of Section 150(i) of the Act;

4.9      On 10 January 2019, the NCR lodged the application in the main matter before the Tribunal.  On 11 January 2019, the Registrar of the Tribunal signed and issued a Notice of Filing of Application (hereinafter referred to as “the Notice”). The Notice advised that the Respondent may oppose the application by serving an answering affidavit within 15 business days of the date of receipt of the Application. The 15-days rule is in accordance with Rule 13(2) of the Rules of the Tribunal[6] (hereinafter referred to as “the Rules”);  

4.10   Williams was therefore bound by the Rules to lodge her answering affidavit in the main matter by 1 February 2019. However, Williams filed and served her answering affidavit, which is labeled “Opposing Affidavit” to the Tribunal the NCR and Grundling on 5 February 2019;

4.11   It appears from the papers that Williams further filed and served her condonation application for the late filing of the Opposing Affidavit on 12 February 2019, with submissions to support the application. On 20 February 2019, the Registrar of the Tribunal signed a Notice of Filing of Late Filing of Applicant’s Opposing Affidavit, advising the NCR and Grundling that they may oppose the application by serving an answer within 15 business days of the date of receipt of the condonation application;  and

4.12   This is the ruling dealing with this condonation application.

ISSUE TO BE DECIDED

5          The issue to be decided is whether or not the application to condone the late filing of the answering affidavit of the Applicant should be granted.  The application is brought in terms of Rule 34 of the Rules of the Tribunal.  The NCR and Grundling do not oppose the application for condonation of late filing of the answering affidavit. Evidence considered was in the form of sworn affidavits submitted by the Williams.

BRIEF FACTS

6          Williams deposed to an affidavit in support of the application for condonation. The affidavit submits the following:

6.1      That although she had received the application in the main matter on 11 January 2019, Williams opened her email on 15 January 2019 when she returned from her annual leave, and immediately instructed her attorneys of record to draft opposing papers;

6.2      That it took considerable amount of time for her to locate documents going back to 2011, that were required by the attorneys to prepare the Opposing Affidavit;

6.3     That the retrieval of archived documents was finalised and supplied to her attorneys just before the expiry of the 15-business days period after the receipt of the application required to file an Opposing Affidavit;

6.4      That the stakes are high for her in the main matter as disciplinary action that could be taken against her could result in a serious penalty such as a fine, suspension or further legal action in a civil court;

6.5      Williams believes she has a bona fide defense to the claims made by the NCR in the main matter, and disputes that she was negligent in the handling of the consumers’ matter;

6.6      Williams submits that the degree of lateness in this condonation application is not excessive, and in similar circumstances where a bona fide defense on the merits was provided, far longer periods of lateness have been condoned;

6.7      William further contends that the delay in filing the Opposing papers has not created substantial prejudice to any of the parties, and denying any litigant the opportunity to be heard would result in substantial prejudice to that party; and

6.8      That it is in the interests of justice that the condonation be granted.

APPLICABLE SECTIONS OF THE NCA AND THE RULES

7          The relevant statutory and regulatory provisions, as well as the case law governing the condonation application are discussed below.

8          According to Tribunal Rule 34 (1), “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.”

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

10       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”.

11       Section 142(3) of the National Credit Act, 2005 (hereinafter referred to as “the NCA” or “the Act”) only refers to applications for late filing, which may be heard by a single member of the Tribunal. This type of application would fall under Rule 34(1)(a) of the Rules, which allows for the condoning of a late filing of a document or application.

APPLICABLE LEGAL PRINCIPLES

12       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”[7].  It can also be defined to mean “overlook or forgive (wrongdoing)”[8].

13       In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[9] it was held that the standard for determining an application of this nature is the interests of justice.

14       In Melane v Santam Insurance Company Limited[10] 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).”

15       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 the following:

(a)   the nature of the relief sought;

(b)   the extent and cause of the delay;

(c)   the effect of the delay on the administration of justice and other litigants;

(d)   the reasonableness of the explanation for the delay;

(e)   the importance of the issue to be raised in the intended appeal; and

(f)     the prospects of success.[11]

16       The dictum in Melane reveals that these factors are interrelated and should not be considered separately.

CONSIDERATION OF THE MERITS

17       In evaluating the merits of this application, the Tribunal will consider the following factors:

Degree of Lateness reasons therefor

17.1   In Salojee & Another v Minister of Community Development[12], the court held that an excessive delay would require an extraordinary good explanation. Condonation is likely to be granted in instances where the degree of lateness is not excessive;

17.2   In the present case, the degree of lateness for the filing of the Answering Affidavit is negligible. The Answering Affidavit should have been filed by Williams on or before 01 February 2019. However, Williams filled her Answering Affidavit on 5 February 2019, which is a mere 2 business days late;  

17.3   According to Williams, the reason for the delay is because she was on leave and returned after the application was served, and she had to retrieve archived documents going back to 2011 as required by her attorneys;

17.4   It is clear that Williams was not tardy in her approach, and the Tribunal is satisfied that she took steps to review the issues raised by the NCR in the main matter in order to safeguard her interests;  and

17.5   Therefore, for the purposes of this condonation application, the degree of lateness cannot be regarded as inordinate;

Prospects of success

17.6   Prospects of success imply that all what need to be determined is the likelihood of success when the merits are heard;

17.7   In the main matter, the NCR’s case is based on information gathered during an assessment which was triggered by consumers’ complaints. Williams, in her answering affidavit provides evidence, which she believes, is likely to counter some of the conclusions included in the NCR’s assessment. At this stage, the prospects for success by the parties in the main matter are reasonable;

17.8   It is in the interest of justice that all respective information be at the Tribunal’s disposal when adjudicating the main matter. In addition, Section 142 of the NCA compels the Tribunal to conduct itself in an inquisitorial and informal manner;  and

17.9   The prospects for success by the parties in the main case should therefore be left to the Tribunal to adjudicate in full, based on the parties’ submissions;

Importance of the matter

17.10   The matter is clearly important to Williams and the NCR, and both these parties have different arguments and counter-arguments related to the case. This case is without doubt important to the administration of justice to see its logical conclusion;

17.11   In the main matter, the serious nature of the allegations leveled against Williams and Grundling, and the possible orders that the Tribunal may grant against them, are important to all the parties in the main matter. Consumers would also need protection if the alleged contraventions of the NCA in the main matter are found to be true;  and

17.12   Therefore, in the interests of administrative justice, fairness and consumers’ rights, it is important that both parties be given an opportunity to fully present their respective cases and argue respective merits in this matter before the full Tribunal for adjudication;

Prejudice

17.13   Williams submits that she will suffer prejudice if she is denied the opportunity to provide her response to the issues raised by the NCR in the main matte, and eventually found guilty of the alleged offences set out by the NCR; and

17.14   The Tribunal has assessed the prejudice Williams is likely to suffer if condonation is not granted. The Tribunal is satisfied that when compared to the NCR, Williams is likely to suffer greater prejudice if condonation is not granted.

CONCLUSION

18       It is trite that condonation requires that discretion has to be exercised taking into account all relevant facts and circumstances. Within the context of this case, the Tribunal has taken into account that the delay is not excessive, the explanation for the delay provided by Williams is reasonable, and that the issues raised in the main matter are of great importance to the parties. The Tribunal finds that these factors constitute good cause in these specific circumstances.

19       Therefore, it is in the interests of justice and fairness and in exercise of discretion that the Tribunal grants condonation to enable the parties to fully vent their respective cases before the Tribunal.

20       As the late filing of William’s Answering Affidavit has been condoned, the NCR may file its replying affidavit in the main matter within a period of ten (10) business days after the issuing of this Ruling.

ORDER

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

21.1      Condonation is hereby granted to Williams for the late filing of her answering affidavit;

21.2      The NCR must file a replying affidavit in response to William’s answering affidavit;

21.3      The replying affidavit must be served on the parties in the main matter, and filed with the Tribunal within ten (10) business days after the date on which this Ruling is issued to the parties; and

21.4      There is no order as to costs.

Thus handed down at Centurion on this 30th day of April 2019

[Duly signed]

MS. M. NKOMO

PRESIDING MEMBER

[1] Paragraph 1 of the William’s “Affidavit in support of condonation application for late filing”.

[2] Paragraph 2.3 of the NCR’s founding affidavit in the main matter.

[3] Paragraph 4.2 of the NCR’s founding affidavit in the main matter.

[4] General Condition A1 provides that: “The Debt Counsellor must comply with all legislation applicable to the operation of the business of a Debt Counsellor, including but not limited to the Act, the Regulations and any subsequent amendments or substitution of the applicable legislation and regulations”.

[5] General Condition A2 provides that: “The Debt Counsellor must perform debt counselling in a manner that is consistent with the purpose and of the Act. The Debt Counsellor must in all instances act professionally and reasonably in providing debt counselling services to consumers and provide such services in a manner that is timely, fair and non-discriminatory and does not bring the NCT or debt counselling into disrepute”.

[6]  Rules for the Conduct of Matters before the National Consumer Tribunal published under GN789 in GG30225 on 28 August 2007 as amended by GenN428 in GG34405 of 29 June 2011.

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

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

[9]   2003 (11) BCLR 1212 (CC) at para[11].

[10]  1962 (4) SA 531 (A) at 532B-E.

[11] Van Wyk v Unitas Hospital and Others 2008(4) BCLR 442 (CC) at paragraph 20 as applied in Camagu v Lupondwana Case No 328/2008 HC Bisho.

[12] 1965 (2) SA 135 (A) 141 B-H