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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

 Case Number: NCT/277837/2023/75(1)(b)

 

In the condonation application between:

 

POLOKA THOMAS                                                                        APPLICANT

 

and 

 

MOTORVASP (PTY) LTD                                                              RESPONDENT

 

In re:

 

POLOKA THOMAS                                                                        APPLICANT

 

and 

 

MOTORVASP (PTY) LTD                                                              RESPONDENT

                         

Coram:

Dr A Potwana- Presiding Tribunal member

 

CONDONATION RULING

an application for leave to refer

(Late filing of

 

TYPE OF APPLICATION AND JURISDICTION

1.         In this application, the applicant seeks condonation for the late filing of his application for leave to refer a matter to the National Consumer Tribunal (Tribunal). The condonation application is made in terms of rule 34 of the Tribunal Rules.^[1]

 

2.         The Tribunal has jurisdiction in terms of section 27(a)(i) of the National Credit Act 34 of 2005.

 

INTRODUCTION 

3.            On 6 July 2023, the applicant filed an application to condone the application for the late filing of his application for leave to refer a matter to the Tribunal and the said application for leave. The applicant’s supporting affidavit is attached to the condonation application.

 

FACTS 

4.         In his supporting affidavit, the applicant stated that he purchased a service plan from the respondent. The transaction was concluded over the telephone, and the service plan was sent to him on 26 February 2020. The agent assured him that the plan would include a major service. His understanding was that he paid a higher premium for the service plan because the respondent would settle the entire service bill and not a portion of it. He submitted that when he took his car for a 180 000 km service, the dealership quoted R16 000.00, but the respondent was only willing to pay R3 three 000.00. The applicant claims that this was not in line with what the agent told him. He requested a recording of the telephone conversation, but the respondent failed to furnish him with the same. The applicant alleges that the failure to provide him with the recording violates the Protection of Personal Information Act 4 of 2013 (POPIA). He contends that although the agent was not the respondent’s employee, the respondent should be held liable. If the respondent maintains that the agent’s promises to him were not valid, the contract should be considered null and void. He alleges that the respondent contravened sections 22 and 41 of the Consumer Protection Act 68 of 2008 (CPA). If his matter is not heard by the Tribunal, he will suffer a financial loss in the sum of R14 114.75. This is the nub of the applicant’s case. 

 

5.         In his application for leave to refer a matter to the Tribunal, the applicant stated that he wants the respondent to refund him all his premiums without any penalties or fees incurred together with interest.

 

He further stated that he wants monetary compensation for the efforts he had to make to get his refund. It appears from the prescribed form for applying for leave, Form TI.73(3) & 75(1)(b) & (2) CPA, that the National Consumer Commission (Commission) issued a notice of non-referral in response to the applicant’s complaint on 12 October 2021. He initially tried to file his application for leave on 1 November 2021, but his application was deemed incomplete. He tried to file again on 28 November 2021, but his application was rejected once again. He unsuccessfully tried to file again on 13 and 24 February 2022 and 30 March 2022. He re-filed on 20 June 2022. Since then, his laptop crashed, and he could not recover his documents. Consequently, he had to restart the application.

 

THE LAW

6.         Rule 34 (1)(a) of the Tribunal Rules states that “A party may apply to the Tribunal in Form TI r.34 for an order to condone late filing of a document or application.”

 

7.         Rule 34 (2) of the Tribunal Rules states that “The Tribunal may grant the order on good cause shown”.

 

8.         To condone means to “accept or forgive an offence or wrongdoing”. The word stems from the Latin term condonare, meaning “refrain from punishing”^[2]. It can also be defined to mean “overlook or forgive (wrongdoing).”^[3]  In Melane v Santam Insurance Company Limited,^[4] the Court 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.”

 

CONSIDERATION OF THE MERITS

9.         In Van Wyk v Unitas Hospital and Others^[5] (Van Wyk), the Constitutional Court stated-

 

“An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And what is more, the explanation given must be reasonable. The explanation given by the applicant falls far short of these requirements. Her explanation for the inordinate delay is superficial and unconvincing.”^[6] 

 

10.      Before dismissing the application, the Court stated-

 

 “To grant condonation after such an inordinate delay and in the absence of a reasonable  explanation, would undermine the principle of finality and cannot be in the interests of justice.” 

 

11.      The applicant’s explanation for the delay is inadequate. It does not traverse the entire delay period. Save that his laptop crashed. The applicant has not explained what prevented him from filing his condonation application between 20 June 2022 and 6 July 2023. The length of the delay is inordinate, and the applicant has not advanced any reason for this lengthy delay. 

 

12.      Concerning the applicant’s prospects of success, it is befitting to point out that the applicant filed his condonation application more than three years after the cause of his complaint arose. Section 116(1)(a) of the CPA prohibits the Tribunal from hearing matters that arose more than three years after the act or omission that is the cause of the complaint. It states, “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.” This means that the applicant was supposed to have filed a competent application for leave to refer his matter directly to the Tribunal before the end of February 2023. 

 

13.      In FirstRand Bank Ltd v Annet Ludick^[7] (Ludick), the High Court of South Africa (Gauteng Division, Pretoria) stated that complaints that occurred more than three years after the act or omission complained of could not be referred to the Tribunal. 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 that occurred more than three years after the act or omission complained of was wrong.

 

14.      In view of the above, the interests of justice do not favour the granting of condonation.

 

CONCLUSION

 

15.      The applicant has not shown good cause for condonation to be granted.

 

ORDER

 

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

 

16.1. condonation is refused, and

 

16.2. no order is made as to costs.

 

Thus, done and signed on 28 September 2023. 

[signed]

Dr A Potwana

Presiding Tribunal member

 

Authorised for issue by The National Consumer Tribunal

National Consumer Tribunal

Ground Floor, Building B

Lakefield Office Park

272 West Avenue, Centurion, 0157

www.thenct.org.za

 

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