Cronje and Another v Standard Bank of South Africa Limited (NCT/110384/2018/148(1)) [2018] ZANCT 135 (4 October 2018)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

CASE NUMBER: NCT/110384/2018/148(1)

In the matter between:

ANDRE DANIEL CRONJE

First Applicant

And

SANDRA ANN CRONJE

Second Applicant

STANDARD BANK OF SOUTH AFRICA LIMITED

Respondent

Coram:

Mr F Sibanda -

Presiding Member

Ms H Devraj - Member

Prof T Woker - Member

Date of Hearing:

14 September 2018

Date of Judgment:

04 October 2018

JUDGMENT AND REASONS

PARTIES

1. The applicants in this matter, are Andre Daniel Cronje and Sandra Ann Cronje, a married couple who reside in Seaview Terrace, Port Alfred, Eastern Cape, (hereinafter referred to as "the Applicants".

2. The respondent is Standard Bank of South Africa Limited, a company incorporated in terms of the company laws of the Republic, and a credit provider registered in terms of the National Credit Act, No. 34, of 2005 (the Act), with registration number NCRCP15 (hereinafter

referred to as "the Respondent").

3. At the hearing both Applicants appeared and were represented by the First Applicant.

4. The Respondent's legal representative attended the hearing to observe the proceedings only and did not make any submissions.

APPLICATION TYPE

5. This is an application to appeal a ruling by a single member of the National Consumer Tribunal ("the Tribunal") in terms of section 148(1) of the Act.

6. The Applicant seeks an order from the Tribunal setting aside a ruling by the Presiding Member, Adv F Manamela, issued on 15 June 2018, refusing the Applicant's condonation application.

7. The Respondent did not oppose the application.

8. The Tribunal has jurisdiction to adjudicate this matter.

BACKGROUND

9. On 13 July 2016, the Applicants filed a complaint with the National Credit Regulator (the NCR), against the Respondent. This was followed by another complaint lodged on 23 May 2017.

10. In brief, the Applicants allege, among other things, that the Respondent-

10.1 breached section 15(2) of the Matrimonial Properties Act, No. 88 of 1984 (the Matrimonial Properties Act), by entering into a credit agreement with a spouse married in community of property without the written consent of the other spouse;

10.2 failed to comply with section 129 of the Act, by instituting legal proceedings against the Applicants while their case was still under investigation by the Ombudsman for Banking Services and the NCR. Further, the section 129 notice was issued illegally by a lawyer and not by the credit provider, in this case, Standard Bank, as prescribed by the Act;

10.3 through its subsidiary, Blue Bean, breached section 40(2)(b) of the Act. in that the credit agreement for Blue Bean Account number 51205704006871070 was entered into with Blue Bean, who is not a registered credit provider; and

10.4 failed to supply electronic and written application documents when requested to do so by the Applicants, in breach of section 65 of the Act.

11. On 19 October 2017 the NCR issued a notice of non-referral in terms of section 139(1)(a) of the Act, for, inter alia, the following reasons:

11.1 the NCR is not clothed with statutory powers to either declare a credit agreement void or to receive and investigate complaints relating to contraventions of an Act other than the National Credit Act;

11.3 Standard Bank complied with the Act when issuing the section 129 notices.

12. In terms of the Tribunal Rules[2], the Applicant had twenty (20) business days, from the date of the issuance of the notice of non-referral, to apply for leave to refer the matter directly to the Tribunal. The twenty-day period would have expired on 16 November 2017.

13. From the documents filed of record[3], it would appear that the Applicants filed an application under section 137, instead of section 141 of the Act. The Applicants were then requested to re­ file under section 141. However, this correction was done outside the 20 business day period, hence the requirement to file a condonation application, in terms of Rule 34 of the Tribunal Rules.

14. On 15 June 2018, the Tribunal issued a ruling, by the Presiding Member, refusing to grant condonation for the Applicants' late filing.

15. The Presiding Member found that the Applicants did not provide a reasonable explanation for the delay. Furthermore, the allegations

against the Respondent in the main application would not yield any prospects of success.

16. On 25 June 2018 the Applicants filed an application in terms of section 148(1) of the Act, appealing the ruling on their condonation

application.

ISSUES TO BE DECIDED

17. The panel must decide whether to uphold the Applicants' appeal.

18. In order to arrive at such a determination the panel must consider whether the single member erred in refusing the condonation application, taking into account various factors, including (a) the degree of lateness; (b) the reasons for the delay; (c) whether the Applicants have any prospects for success in the main application; and (d) the importance of the matter.

APPLICANTS' CASE

19. The Applicants raise the following points, among others, in support of their appeal:

19.1 paragraphs 2.2 and 2.3 of the condonation ruling, respectively refer to the allegations of reckless lending and entering into credit agreements without the consent of the Applicants. The Applicants dispute that these are their complaints. Instead, the particulars of their complaint are laid out in document 2f[4], the facts of which were not discussed in the ruling. As such, the finding in the condonation ruling that the NCR fully addressed every allegation by the Applicants is incorrect;

19.2 whilst the complaint regarding the section 129 notice is correctly captured in the condonation ruling, it is not adequately addressed in that the gist of the complaint is the fact that the section 129 notice was issued by a legal representative and not the credit provider itself;

19.3 the Applicants filed an application in terms of section 137 of the Act. within 20 business days of being issued with a notice of non-referral. The office of the Registrar erred in advising the Applicants to withdraw the section 137 application and replace it with an application in terms of section 141 of the Act; and

19.4 the Applicants believe they have good prospects of success in the main application.

LEGAL PRINCIPLES

20. According to Rule 34(1) and (2) of the Tribunal Rules, a party may apply to the Tribunal for an order to, among other things, condone the late filing of a document or application. The Tribunal may grant the order on good cause shown.

21. Whilst the Act does not provide criteria that may be considered when assessing 'good cause·, the Tribunal takes guidance from legal jurisprudence developed over time.

22. For instance, in Mofokeng v Attorney General,[5] it was held that "good cause" means substantially the same as "sufficient cause", meaning that the Tribunal may grant condonation for non-compliance with its Rules where the applicant has demonstrated objectively good reasons for non-compliance.

23. Similarly in Melane v Sanlam Insurance Company Limited[6] when dealing with the question of condonation it was held that among the factors usually relevant are the degrees of lateness, the explanation therefor, the prospects of success and the importance of the case. These facts are inter-related and not individually decisive. What is needed is an objective conspectus of all the facts, such that a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Alternatively, the importance of the issue and strong prospects of success may tend to compensate for a long delay.

24. From these judgments. the Tribunal is expected to arrive at a decision to grant or not to grant condonation, by taking into account and balancing a number of factors.

CONSIOERATION OF FACTORS

Degree of lateness

25. The NCR issued a notice of non-referral on 19 October 2017 and the Applicants had until 16 November 2017 to file an application for leave to refer the matter directly to the Tribunal. Instead the Applicants filed an application in terms of section 137 of the Act within the prescribed twenty business days.

26. This error on the part of the Applicants cannot be held against them. The mere fact that they approached the Tribunal within the prescribed timeframe, albeit using an incorrect section of the Act, indicates every attempt to comply with the Tribunal rules. There was a lot of correspondence between the Applicants and the office of the Registrar, which effectively interrupted the prescribed time factor. Hence, although the correct application in terms of section 141 of the Act was eventually filed outside the prescribed timeframe, this cannot outweigh the clear attempt by the Applicants to comply with the requirements of the rules. Thus, the degree of lateness in this case cannot be said to be excessive.

Reasons for the delay

27. As indicated above, the delay in filing the section 141 application appears to have been occasioned by the Applicants' initial filing

using the incorrect section of the Act.

Prospects for success

28. In assessing the Applicants' prospects for success it is necessary to delve into some aspects of the case, without necessarily making a determination or pronouncement on the merits thereof.

29. In the main case, the Applicants raise a number of allegations against the Respondent. The first allegation is that the Respondent breached section 15(2) of the Matrimonial Properties Act, No. 88 of 1984, by entering into a credit agreement with a spouse married in community of property without the written consent of the other spouse.

30. The Tribunal as a creature of statute derives its powers from the National Credit Act and the Consumer Protection Act. No 68 of 2008. The Tribunal has no jurisdiction over the Matrimonial Properties Act. This matter will be canvassed in full in the hearing of the main application.

31. The second allegation is that the section 129 notice was issued by the Respondent’s lawyers instead of the Respondent itself. There is nothing in the Act that precludes a Section 129 notice being issued by a lawyer. However, the Applicant will need to argue this fully at the main hearing of the matter.

32. The third allegation is that Blue Bean is not a registered credit provider and therefore should not be in the business of extending

credit to consumers using Standard Bank's registration number with the NCR. From the papers filed, Blue Bean is reflected as a division of Standard Bank. Without pursuing the matter any further, the Tribunal takes judicial notice of the fact that Blue Bean is a division of Standard Bank, who is a registered credit provider.

33. The Applicants further allege that the Respondent failed to provide them with copies of the electronic and written applications and telephonic recordings. Section 65 of the Act underscores the consumers' right to receive documents. Section 65(1) provides that every document that is required to be delivered to a consumer must be delivered in the prescribed manner, if any. Section 65(2) then goes further to state that if no method has been prescribed for the delivery of a particular document to the consumer, the person required to deliver that document must make it available in one of the listed methods in subsection (2)(a) or in the manner chosen by the consumer from the options listed in (2)(a).

34. The Applicants allege that despite having requested the electronic and written application documents as well as telephonic recordings from the Respondent on 16 February 2016, to date the Respondent has not provided the requested documents. Tribunal must make a finding whether the Respondent's inability to provide the requested documents constitutes prohibited practice. There appears to be a case for the Respondent to answer.

35. At this stage, the Tribunal will not pronounce conclusively on the merits of the Applicants' case. This will be dealt with in the

hearing of the main matter.

Importance of the matter

36. This matter dates back to February 2016 when the First Applicant lodged a complaint with the Respondent. Whilst the Respondent has not opposed this appeal, the main application contains several allegations that need to be fully ventilated at the Tribunal, in the interest of justice.

CONCLUSION

37. The Tribunal finds that the degree of lateness in filing the main application was not excessive. It is clear that there was communication between the Applicants and the Tribunal during the period leading up to the correct filing in terms of section 141 of the Act.

38. The Applicant enjoys reasonable prospects of success, as it appears that the Respondent has a case to answer on the allegation of refusal to supply documents as requested. The other issues raised by the Applicants will be determined by the Tribunal when the merits of the main matter are heard.

39. Therefore, the Tribunal having considered all the factors relevant to the determination of this application, makes the following order:

ORDER

40. The application to appeal an earlier condonation ruling is upheld.

41. The Applicants' condonation application is granted.

Dated on this 4th day of October 2018.

signed

FK SIBANDA

PRESIDING MEMBER

Ms H Devraj (Member) and Prof T Woker (Member) concurring

[1] Published in Government Gazette No 38557 of 13 March 2015

[2] Rules for the Conduct of Matters before the National Consumer Tribunal, Government Gazette No 30225 of 28 August 2007

[3] See pages 58-60 of the bundle - Email correspondence between the Applicants and the Office of the Registrar of the Tribunal

[4] Pages 19-26 of the bundle

[5] OFS 1958 (4) SA (O).

[6] 1962 (4) SA 531 (A) at 532C-F