---

 

IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION

 

 Case Number: NCT-244592-2022-148 - Rule 34

 

In the matter between:

 

WARREN WAGNER VAN NIEKERK                        FIRST APPLICANT

 

KATE MATHILDA VAN NIEKERK                            SECOND APPLICANT

 

And

 

GIG MOTORS (PTY) LTD                                         RESPONDENT

 

 

Coram:

Z Ntuli: Presiding Tribunal member

 

Date of consideration in chambers: 17 February 2023

 

Date of the ruling: 24 April 2023

 

 

CONDONATION RULING

(LATE FILING OF THE APPLICATION TO APPEAL TO A FULL PANEL OF THE TRIBUNAL)

 

 

APPLICANT

 

1.       The applicants are Warren Wagner van Niekerk (first applicant) and Kate Mathilda van Niekerk (second applicant), who are adult consumers, married to each other, and collectively referred to as “the applicants.”

 

2.       The applicants are defined as consumers under section 1 of the Consumer Protection Act 68 of 2008 (the CPA).

 

RESPONDENT

 

3.       The respondent is GIG Motors (Pty) Ltd (the respondent), a private company incorporated under the company laws of the Republic of South Africa.

 

4.       The respondent is defined as a supplier in terms of section 1 of the CPA.

 

TERMINOLOGY

 

5.       Unless otherwise stated, a reference to a section in this ruling refers to a section of the CPA.

 

6.       A reference to a rule in this ruling refers to the Rules of the National Consumer Tribunal^[1] (the Rules).

 

APPLICATION TYPE

 

7.       In this application, the applicants seek condonation under Rule 34(1) for the late filing of their application for appeal to a full panel of the Tribunal in terms of section 148(1) of the National Credit Act, 34 of 2005 (the NCA).

 

8.       The respondent opposes the application for condonation.

 

BACKGROUND

 

9.       The applicants purchased a 2010 BMW 320i A/T E90 (the vehicle) on 18 August 2017 from the respondent. They did not personally test drive the vehicle, but one of the employees of the respondent, referred to as JJ, drove the vehicle, and on enquiring if the vehicle was in perfect order, JJ confirmed that it was in perfect condition and that there were no major problems with it.

 

10.   The applicants noted a small seat tear and a backlight crack, and the boot catch was missing. These were fixed after the vehicle was returned on 31 August 2017, but the applicants noted that the hazards did not function. Between 18 August 2017 and 28 September 2017, the vehicle had several repairs, including non-functioning hazards, the remote that only opened two (2) of the windows, the starter button that did not work, and malfunctioning reverse lights.

 

11.   The applicants were promised that the repairs to the vehicle would be 100% complete by 2 October 2017, but it was only ready for collection on 23 October 2017. The vehicle was mainly with the respondent than the applicants due to the repairs. The applicants informed the respondent that they were no longer interested in the vehicle due to the defects and costs associated with them. They requested the respondent to refund the purchase price to Wesbank, the credit provider that financed the vehicle. The respondent refused.

 

12.   The applicants had no option but to approach the Motor Industry Ombudsman of South Africa (MIOSA). MIOSA found the respondent to be in contravention of the Industry Code and section 82 of the CPA. On 19 February 2019, MIOSA advised that the matter be referred to the National Consumer Commission (the NCC) because the respondent failed to implement the MIOSA recommendation.

 

13.   The applicants complained to the NCC. After investigating, the NCC issued a notice of non-referral as the applicants failed to return the vehicle to the respondent for it to be replaced. The applicants aver that the NCC took almost three years to provide an outcome on their complaint and only issued it after the applicants had initiated proceedings against the NCC in the magistrate’s court.

 

14.   According to the applicants, they had informed the NCC that the vehicle was in the holding facility for safekeeping by Wesbank and that the respondent needed to pay Wesbank before getting the vehicle. The applicants did not deliver the vehicle to the respondent as the NCC advised, so the NCC could not further assist with the complaint.

 

15.   The applicants applied for leave to refer the complaint directly to the Tribunal in terms of section 75(1)(b). The application was, however, out of time, and the applicants applied for condonation, which Mr. A Potwana considered. Mr. A Potwana refused the application for condonation on 6 September 2022.^[2]

 

16.   The ruling stated that there were no prospects for the applicants’ case because three years had passed since the act or omission that is the cause of the complaint, and further that the applicants elected to have the vehicle repaired. Simply put, the direct referral to the Tribunal is barred by section 116(1)(a). Further, section 56(2) does not entitle the applicants to both a repair and a refund; in this case, the applicants elected the repairs. Therefore, although the reasons for the late filing were plausible, the condonation had to fail without prospects of success.

 

17.   The applicants filed a notice to appeal the ruling of the single member to the full panel of the Tribunal in terms of section 148(1) of the NCA on 30 September 2022, seeking, amongst others, an order to set aside the decision of Mr. A Potwana, that the respondent refunds the applicants the amount they had paid to WesBank in respect of the vehicle, that the respondent pays the balance of the loan owing to WesBank because they returned the vehicle within one month of having it, and that the respondent pays the fees incurred at the holding facility where WesBank took the vehicle for safekeeping pending the outcome of the matter. The applicants also seek an administrative penalty against the respondent for violating section 55(2).

 

18.   The Tribunal registry rejected the filing by issuing a notice of non-compliance on 6 October 2022. The applicants subsequently corrected the papers and filed the application on 13 October 2022, with the notice of filing issued on 14 October 2022. As the matter was out of time, they filed this condonation application.

 

19.   In support of their application, the applicants submitted that they approached MIOSA and the NCC in line with the provisions of the CPA. They believe that they have reasonable prospects of success because MIOSA found that the respondent violated the CPA and the NCC investigation report points to the violation of section 55(2) and the possibility of an administrative penalty.

20.   Furthermore, the applicants believe that they should not be prejudiced by the failure of the NCC to finalise the complaint in time. Specifically, they filed their complaint with the NCC on or around 23 August 2018, but the notice of non-referral was only issued on 12 April 2021, almost three years since the complaint was lodged. The NCC only released the investigative report to the applicants on 5 May 2021 following legal proceedings in the magistrate’s court against the NCC.

 

21.   The applicants also submitted that the matter has yet to prescribe because it was with the NCC. They also rely on section 11(c) of the Prescription Act, 68 of 1969 (the Prescription Act), which states that the prescription period for debts arising from a bill of exchange or another negotiable instrument or a notarial contract is six years unless a more extended period applies in respect of the debt in question. Further, section 13(2) of the Prescription Act states that a debt that arises from a contract and which would become prescribed before a reciprocal debt that arises from the same contract becomes prescribed shall not become prescribed before the reciprocal debt becomes prescribed.

 

22.   The applicants believe that based on the provisions of the Prescription Act and the fact that the applicable provisions in this regard are those of the CPA, specifically regulation 37, sections 55(2), 72, 73(1)(c) and 82(8), and not the NCA, the matter has not prescribed.

 

23.   The respondent opposed the application for condonation by filing its answering affidavit dated 2 November 2022. The respondent submitted that the applicants purchased the vehicle on or about 18 August 2017, and after complaining about defects, the vehicle was returned for repairs on 31 August 2017. The respondent repaired the vehicle, and a Dektra report was supplied to confirm the repairs. However, the applicants failed to collect the vehicle until Wesbank repossessed it because the applicants defaulted on their instalment payments.

 

24.   In opposing the application, the respondent denied the allegations against it and relied on the condonation ruling of Mr. A Potwana that the applicants have no prospects of success due to the expiry of the three years as provided for in section 116(1)(a). Further, they aver that the applicants are the cause of their misfortune by continuously filing non-compliant applications. Therefore, the condonation, in their view, is not warranted.

 

ISSUE TO BE DECIDED

 

25. The issue before the Tribunal is whether good cause is shown to condone the late filing of the applicants’ application to appeal to a full panel of the Tribunal in terms of section 148(1) of the NCA.

 

THE RULES

 

26.   In terms of Rule 34 (1), a party may apply to the Tribunal for an order to condone the late filing of a document or application or any other departure from the rules or procedures.

 

27.   Rule 34 (2) further states that the Tribunal may grant the order on good cause shown.

 

THE LAW

 

28.   Section 150 (e) of the NCA states that in addition to its other powers under the NCA, the Tribunal may make an appropriate order concerning prohibited conduct or required conduct in terms of the NCA or the CPA, including condoning any non-compliance with its rules and procedures on good cause shown.

 

29.   Rule 34 (1) provides, “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.”

 

30.   Rule 34 (2) provides, “The Tribunal may grant the order on good cause shown."

 

31.   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 as “overlook or forgive (wrongdoing)”.^[4]

 

32.   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. Whether it is in the interests of justice to grant condonation depends on each case’s facts and circumstances. It requires the exercise of discretion based on an objective conspectus of all the facts.

 

33.   The relevant factors 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.^[6]

 

34.   In Melane v Santam Insurance Company Limited,^[7] it was held that the court has a discretion, to be exercised judicially upon considering all the facts. In essence, it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation for it, the prospects of success, and the importance of the case. These facts are interrelated and are not individually decisive. What is needed is an objective conspectus of all the facts.

 

CONSIDERATION OF THE MERITS

 

35.   Guided by the Melane case, the Tribunal considered the degree of lateness, the explanation for it, the prospects of success, and the importance of the case. The applicants filed the notice of appeal to a full panel of the Tribunal on 30 September 2022, within the time permitted. However, this was rejected by the Tribunal registry due to non-compliance with the Rules on 6 October 2022. The application was subsequently filed properly on 13 October 2022, and the Tribunal registry issued a notice of filing on 14 October 2022.

 

36.   Although it is not the first time the applicants’ application was delayed because of noncompliance with the Rules, the Tribunal considered their attitude on becoming aware of the lateness. In the case of Nair v Telkom SOC Ltd & Others,^[8] the Labour Court stated that condonation applications must be filed immediately upon becoming aware of the late filing. The applicants acted quickly and filed properly within four business days after being notified. The applicants demonstrated a sense of urgency in complying with the Rules. The delay is, therefore, not substantial, and the Tribunal accepts the explanation.

 

37.   Section 34 of the Constitution of the Republic of South Africa, 1996 (the Constitution), states that everyone has a right to have any dispute that can be resolved by application of law decided in a fair public hearing before a court or, where appropriate, another independent tribunal or forum. This is a right enshrined in the Bill of Rights for everyone. This matter falls within the parameters of the Tribunal’s jurisdiction, and it is implored to observe the principles of fairness and natural rules of justice. The applicants have a right to access the Tribunal for their dispute to be adjudicated.

 

38.   This complaint raises critical issues relating to sections 55 and 56, which deal with the implied warranty for defective goods and the right of the consumer to elect the repair or replacement of defective goods or a refund within six months of purchasing the goods. The question is whether the applicants were entitled under section 56(2) to elect the repairs and then demand a refund after the respondent had repaired the vehicle, also considering the provisions of section 56(3).

 

39.   Further, both MIOSA and the NCC pointed to the violation of the CPA, which ordinarily should give rise to a remedy. The NCC issued a non-referral because the applicants failed to return the vehicle to the respondent to replace it. As such, the NCC did not find against the respondent. The Tribunal is best placed to pronounce the appropriate remedy if it finds that the CPA was violated. The Tribunal accepts that this matter raises important issues.

 

40.   In addition to the above, the Tribunal must consider the prospects of success of the applicants’ case to justify the granting of condonation. It would serve no purpose for the Tribunal to grant condonation if it cannot consider or adjudicate the complaint in any event. The applicants purchased the vehicle on 18 August 2017 and returned it to the respondent within a month for repairs. Section 116 (1)(a) states that “A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after the act or omission that is the cause of complaint.” The applicants should have applied within three years from 18 August 2017, on or before 18 August 2020.

 

41.   In FirstRand Bank Ltd v Annet Ludick,⁵ the High Court (Gauteng Division, Pretoria) stated that complaints that occurred more than three years after the act or omission that is the cause of the complaint could not be referred to the Tribunal as espoused in section 166(1)(a) of the NCA. The High Court further held that the Tribunal’s reliance on two of its decisions in which it allowed itself the discretion to deal with complaints over three years was wrong.

 

42.   The court emphasised that the Tribunal is established by section 26, and its functioning is regulated by section 27 of the NCA. It derives its powers only from the legislation and does not have inherent jurisdiction. Like all similar bodies, it has no powers other than those granted by the empowering statute. Unlike the Prescription Act, the NCA does not provide for the interruption of prescription, even if it can be argued successfully that the NCC or the NCR delayed the complaint.

 

43.   Therefore, the Tribunal cannot decide on its own that the process at the NCC interrupted the three years that is expressly set as a limitation in section 116(1)(a). The court referred to the Tribunal ruling in Mapeka v FirstRand Bank Limited (Westbank),^[9] where in paragraph 21 it was said that section 116 is self-explanatory and does not allow any discretionary element. It places an absolute bar on matters older than three years. The provisions are, therefore, peremptory.

 

44.   However, the question of whether a limitation of the nature entailed in section 116 should be interpreted to constitute an absolute prescription provision that extinguishes a right or a procedural time bar capable of condonation on good cause shown was considered by the Constitutional Court in Competition Commission of South Africa v Pickfords Removals SA (Pty) Ltd.[10]

 

45.   This dealt with section 67(1) of the Competition Act, 89 of 1998 (the Competition Act), which states that a complaint regarding a prohibited practice may not be initiated more than three years after the practice has ceased. The court considered the effect of a time bar of this nature on the right of ordinary citizens to access courts, a right enshrined in section 34 of the Constitution.

 

46.   Interpreting section 67(1) of the Competition Act as an absolute prescription provision not only has the potential to subvert the work of the Competition Commission by hindering access to the Competition Tribunal but could also limit access to civil courts for claimants that wish to pursue damages arising from a prohibited practice.

 

47.   The court concluded that section 67(1) is a procedural time bar capable of condonation in the event of non-compliance and that the Competition Tribunal is empowered by section 58(1)(c)(ii) of the Competition Act, which states that the Competition Tribunal may condone on good cause shown any non-compliance with a time limit set out in the Competition Act.

 

48.   Based on this ruling, the interpretation of section 116(1) should favour a procedural time bar if we consider the impact of an absolute time bar on the right bestowed by the Constitution as the supreme law as well as the purpose of the CPA. This also goes for section 166(1) of the NCA. More so, the trigger for consumers to pursue damages arising from the violation of the CPA or the NCA is the process in the Tribunal.

 

49.   According to the Pickfords case, a prescription is meant to penalise negligent inaction, not the inability to act. The applicants acted in time to complain, but the matter was delayed in the NCC, which is beyond the applicants’ control. The applicants could only approach the Tribunal after the NCC had issued a notice of non-referral. The applicants even instituted proceedings in the magistrate court to obtain an outcome from the NCC. The NCC may have valid reasons for the delay, but these were not advanced in this case.

 

50.   Whereas this Tribunal may favour a procedural time bar in interpreting sections 116 of the CPA and 166 of the NCA based on the Pickfords case, the next question is whether this procedural time bar can be condoned by this Tribunal in case of non-compliance.

 

51.   Unlike section 58(1)(c)(ii) of the Competition Act, which grants the Competition Tribunal powers to condone non-compliance with a time bar set in the Competition Act, section 150(e) of the NCA, expressly restricts the ability of the Tribunal to condoning non-compliance regarding its rules and procedures only. It has no authority to condone non-compliance with the time limit set in the CPA or NCA.

 

52.   Ludick is instructive in that the Tribunal will act ultra vires if it hears this matter as it is older than three years. The Tribunal does not have such discretion and cannot bestow itself the power to condone non-compliance with a time limit set in the CPA or the NCA. The process at the NCC did not interrupt the period because the CPA or the NCA did not provide for the interruption.

 

53.   As the applicants relied on the provisions of the Prescription Act, it is important to note that sections 11(d) and 16(2) of the Prescription Act provide that these provisions do not apply in as far as they are inconsistent with any Act of Parliament that sets a specified period for action to be instituted or claim to be made. The CPA and the NCA, as acts of Parliament, set a specific period to bring action arising from these two Acts.

 

54.   This matter has lapsed, and the Tribunal cannot hear it. As a creature of statute, it would be acting outside the powers conferred by the CPA or NCA. Unlike courts, it does not have such discretion. The applicants do not have reasonable prospects of success in the main matter as the Tribunal is barred from adjudicating this dispute.

 

55.   Therefore, without the prospect of success, even if the reasons for the late filing are acceptable, this condonation application cannot be granted.

 

ORDER

 

56. Accordingly, the Tribunal makes the following order:

 

55.1    The application to condone the late filing of the application to appeal to a full panel of the Tribunal in terms of section 148(1) is refused; and

 

55.2    There is no cost order.

 

 

DATED AT CENTURION ON 24 APRIL 2023.

 

[SIGNED]

Ms. Z Ntuli

---