First National Bank, (A Division of FirstRand Bank limited) v Naidoo (NCT/99995/2018/148) [2018] ZANCT 104 (8 June 2018)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION

Case number: NCT/99995/2018/148

In the matter between:

FIRST NATIONAL BANK,

APPELLANT

(A Division of FirstRand Bank limited)

And

RAY O’NEIL NAIDOO

RESPONDENT

Coram:

Adv Fati Manamela – Presiding member

Ms Penelope Beck-Paxton – Tribunal member

Ms Maleho Nkomo – Tribunal member

Date of hearing –

10 April 2018

JUDGMENT AND REASONS

INTRODUCTION

1. At issue in this appeal is the power the Tribunal’s single member has, to deal with prior rulings as envisaged in Rule 3(2) (d) of the National Credit Act, 2005. According to the Appellant, a single member of the Tribunal, did not have the power to reconsider

“ the timeframe placed by a Presiding Member in the former condonation judgement”

and, therefore by doing so, acted ultra vires by adjudicating the second application.

The National Credit Regulator issued a notice of non- referral to the Applicant in 2016, causing the Applicant to lodge an application for leave to refer the complaint directly to the Tribunal. The 20 day rule of referral directly to the Tribunal had elapsed, necessitating the Applicant, as it then was, to lodge a condonation application with the Tribunal, for the late referral to the Tribunal. The single member of the Tribunal granted the condonation application, and ordered the then Applicant to file the referral application within 20 business days. The Applicant failed to do so, on grounds of alleged ambiguity in the condonation judgment issued by the single member of the Tribunal, as well as the Notice of Complete filing issued to both parties by the Registrar’s offices, causing the application to be out of time. It appears, at the time the initial condonation application was lodged, the Applicant had already submitted his application for leave to refer directly to the Tribunal. After the ruling of the condonation application, the Tribunal staff advised him that his application was complete by the Notice of complete filing issued to both parties on the 4th of September 2017.

2. Having received the Notice of Complete filing on the 4th of September 2017, the Respondents only contacted the Tribunal on the 19th of September 2017 challenging the validity the Notice of Complete filing as the Applicant has failed to re-file the application as per the order of the single member of the Tribunal. Despite the matter before the Tribunal being complete, the officials in the Registrar’s office erroneously withdrew the Notice of complete filing instead of allowing the parties to argue the matter

before the Tribunal.

3. After withdrawing the Notice of complete filing, the officials in the Registrar’s office allegedly advised the Applicant to file for another condonation application which was assigned to another single member[1].

4. In view of the fact that the Applicant had failed to adhere to the timeframes ordered by the first single member to submit a new application (as it came out later to be regarded as such) he had to seek condonation for the late filing of the de novo application for leave to refer directly to the Tribunal.

5. It is this second condonation order that the Appellant appeals against, based on various grounds canvassed in the body of this judgment.

APPELLANT

6. The Appellant is FIRST NATIONAL BANK, (“the Bank”) a division of FirstRand Bank Limited which is duly registered and incorporated in terms of the company laws of the Republic of South Africa, and also as a registered credit provider in terms of the National Credit Act, 2005.

7. At the hearing of this appeal the Appellant was represented by Advocate Annemarie Friedman from Sandton Chambers, who was instructed by CF Van Coller Incorporated Attorneys, Germiston;

RESPONDENT

8. The Respondent is RAY O’NEIL NAIDOO, (“Naidoo”) an adult male person who resides at Archilles Road, Cape Town, province of the Western Cape. The Respondent appeared in person via skype.

9. The Respondent is the Applicant in the main application in terms of section 141(1) (b) of the National Credit Act 34 of 2005 (“the NCA”) for leave to refer a complaint directly to the Tribunal.

APPLICATION TYPE

10. This is an appeal in terms of section 148 of the National Credit Act, 2005 ("the NCA"), against the ruling of a single member of the Tribunal. In its ruling, the Tribunal[2] had condoned the

Respondent’s failure to refer his complaint directly to the Tribunal in terms of section 141 (1) (b) of the NCA within 20 business days of the Tribunal[3] making such condonation order[4].

11. The condonation order was handed down by a single member, Mr Andisa Potwana

12. In September 2016, the National Credit Regulator ("the NCR") had issued a notice of non-

referral in terms of section 139 (1) (a) of the NCA.

THE SCOPE OF THE APPEAL

13. This is a wide appeal, in that the appeal panel is, in terms of rule 27 (2) of the Tribunal Rules ("the Rules"),[5] not restricted to the record of the proceedings before a single member.

BACKGROUND

14. In the main matter, Naidoo seeks an order of reckless lending against First National Bank (the Bank or FNB) in respect of an FNB account opened in his favour and a credit card issued to him. The matter was reported to the National Credit Regulator (NCR) who subsequently issued a Notice of Non- Referral to Naidoo. Naidoo brought two condonation applications (the one following the other, separately) for the late filing of his application for leave to refer a complaint directly to the Tribunal. The first condonation application, dated 6 June 2017, was heard by Mr A Potwana, who granted the order in favour of Naidoo, on 31 August 2017 (“the first condonation order”) and issued it on 4 September 2017. The order stated the following:

“(1) Applicant’s failure to refer his complaint to the Tribunal within 20 business days of the notice of non-referral is hereby condoned.

(2) The applicant must apply for leave to refer the complaint to the Tribunal in terms of

Section 141(1) (b) of the National Credit Act, 34 of 2005, within 20 business days of

the issuing of this order by the Registrar.”

15. Naidoo did not comply with the order in that he failed to bring his application for leave to refer the complaint to the Tribunal within the stipulated 20 business days of the issuing of the order by the Registrar[6]. Naidoo explained the reasons for his failure as:

“ the procedural awkwardness that allegedly followed after the condonation ruling by the

Presiding Member Potwana, namely that the Applicant should file its Application to Refer

within 20 days after the Condonation Ruling. This awkwardness was brought about by

the receiving of a Notice of Complete Filing regarding the Application to Refer, from the

NCT shortly after the Condonation Order had been issued ”[7]

16. Naidoo then brought a second condonation application, allegedly on the advice of a Tribunal staff member, dated 24 October 2017, heard by another single Tribunal member, Dr Peenze, who again granted the order for condonation in favour of Naidoo. The order (“the second condonation order”) was issued on 6 December 2017, and reads as follows:

“Condonation is hereby granted to the Applicant for the late filing of the

de novo Application for Referral to the National Consumer Tribunal”

[Underlining: emphasis added]

17. In both these rulings, there was no order made as to costs.

SUMMARY OF SUBMISSIONS

Appellant’s grounds of appeal and the Order sought from the Tribunal

18. The Appellant seeks an order for the setting aside of the ruling made by the second single member, and dismissing the application for condonation;

19. Simply put (and in support of its application), the Appellant makes this appeal on the basis of the following grounds:

19.1 the presiding member in the first condonation application, was functus officio with regard to any further applications for condonation, and his ruling is deemed to be binding once made and could not be revoked by another Tribunal member;

19.2 Naidoo did not comply with the Tribunal order made in the first application for condonation;[8]

19.3 the presiding member who adjudicated the second condonation application erred by not finding that the decision of Mr A Potwana in the first condonation application was final, and that the presiding member in the second condonation application, placed too much reliance on the “Notice of Complete Filing”;

19.4 that the Rules for the Conduct of matters before the National Consumer Tribunal (“the Tribunal Rules”) do not contemplate an application for condonation and an order recalling, varying or cancelling of the results of the expiry of the 20 business days prescribed in the order made by Mr Potwana in the first condonation application. In considering the second condonation application, the Appellant asserts, the single member erred;[9]

19.5 that the Tribunal Rules do circumscribe the Tribunal’s discretion to grant condonation if a party fell foul of a previous Tribunal order;

19.6 alternatively to the above, that the issue of condonation has already been adjudicated upon by the Tribunal and remains in force, until set aside by the Tribunal, based on the principle of res iudicata[10];

19.7 that, based on the above grounds, Dr Peenze acted ultra vires

Respondent’s submissions

20. In response to the Appellant’s submissions, Naidoo argues that the Appellant filed its Notice of Appeal within 21 days and not within the required 20 days as envisaged in Rule 26(2) of the Tribunal Rules. The order of Dr Peenze was issued on 6 December 2017;

21. Rule 2(1) of the Tribunal Rules stipulates that the offices of the Tribunal are open to the public, Monday to Friday, excluding public holidays and the days between 24 December and 2 January of the following year. It is submitted that the days between 24 December and 2 January can therefore not be counted in the time allowed for delivery of the Notice of Appeal.

22. Further that the dates of 24 December and 2 January are both exclusive in calculating the dies non.

ANALYSIS AND RELEVANT STATUTORY PROVISIONS

Compliance with rule 26 (2) (b) of the rules

23. Rule 26 (2) (b) of the rules provides that the notice of appeal must set out concisely the grounds of appeal. The Tribunal is satisfied that the notice of appeal is drafted with sufficient clarity to bring it within the ambit of rule 26 (2) (b), and also to enable the Respondent to know the case he has to meet in this appeal. The only defence emanating from the Respondent’s submission, is that the Appellant has filed its appeal outside of the time frame[11] allowed by the Rules.

24. Naidoo argues that the dates of 24 December and 2 January are both exclusive in calculating the dies non, and that they should not be included when calculating the dies non. It is the bank’s submission that both days are inclusive in calculating the dies non. In determining this aspect of the dies non, the Tribunal is satisfied that the appellant has canvassed this issue extensively, supported by case law[12] and relevant statutory prescripts applicable to both the lower and the High courts[13]. The Tribunal, in the design of its Rules, conformed substantially to these prescripts governing the dies non. Accordingly, the notice of appeal was filed within the prescribed 20 days.

The First and Second Condonation Applications

Grounds for granting condonation

25. Rule 34 (2) of the rules provides that a party may apply to the Tribunal for an order to condone the late filing of an application and that the Tribunal may grant the application "on good cause shown".

26. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[14] it was held that the standard to be applied when considering an application of this nature is the interests of justice. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant 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.[15]

27. Similar factors were also discussed by the court in Melane v Santam Insurance Company Limited[16] where it is pointed out that a Court has a discretion which should be exercised judicially upon consideration of all the facts. The court in Melane held that these factors are interrelated and should not be considered separately but emphasized that an applicant must have prospects of success in the main matter. The court held that if there are no prospects of success, no matter how good the applicant's explanation

for the delay in filing an application, the application for condonation should be refused.[17]

Application of the grounds for condonation

28. The Tribunal’s powers are further limited by Rule 34(1) of the Tribunal Rules, which prescribe the circumstances under which a party may apply for condonation, which are to: condone a late filing of a document or application; extend or reduce the time allowed for filing or serving; condone the non-payment of a fee; or condone any other departure from the rules and procedures. [underlining: emphasis added]

29. It is clear that the condonation application adjudicated upon by Mr Potwana was determined along the circumstances mentioned in 26 above, and these circumstances elicited sufficient and good cause to warrant the granting thereof. Equally, there were prospects of success in the main matter, persuading the Tribunal Member to arrive at the positive decision in favour of Naidoo. The extent and cause of the delay, together with the reasonableness of the applicant’s explanation are just but some of the factors that the Tribunal considered when determining whether or not it is in the interests of justice to grant the condonation application. The applicant, by obtaining condonation, had removed the obstacle or cleared its way to gain the Tribunal’s audience to hear and determine the application for leave. This was the goal the applicant had wanted to achieve.

30. The Tribunal is a creature of statute[18]. This means that it may only act in accordance with the powers given to it in terms of its founding legislation and other applicable legislation. This legislation is the National Credit Act, 2005 and the Consumer Protection Act, 2008. The jurisdiction and powers of the members of the Tribunal must be deduced from the four corners of the National Credit Act and the Tribunal Rules. The presiding member, Mr Potwana, applied himself precisely within the confines of this legislation.

31. Naidoo’s complaint in the main matter that the Respondent engaged in reckless lending runs to the heart of this matter and is very serious. No doubt, the member who adjudicated and granted the initial condonation application wanted to have this allegation ventilated and justice restored if the allegations were proven to be true. Under those circumstances, the relief that the Tribunal may grant concerning reckless credit lending is set out in section 83 of the NCA. That section provides that the court or Tribunal may declare that the credit agreement is reckless; set aside all or part of the consumer's obligations under that agreement that are just and reasonable in the circumstances; suspend the force and effect of that agreement until a specific date; or restructure the consumer's obligations under any other credit agreement. Surely, this outcome would have far reaching consequences on the party against whom such an order is made.

EVALUATION AND THE REVELANT PROVISIONS OF THE NCA

32. In her condonation judgment, (that is: the second condonation application) the Presiding Member states, under the heading titled: “TYPE OF APPLICATION”, the following, in paragraph 6[19] of that ruling:

“In this application, the Applicant seeks condonation of the late lodging of its notice to refer a complaint to the National Consumer Tribunal (hereinafter referred to as the “Tribunal or “the NCT”), with specific reference to the timeframe placed by the Presiding Member Potwana in a former Condonation Judgment ”

33. The issue here is: “with specific reference to the timeframe placed by Presiding Member Potwana in a former Condonation Judgment” [emphasis added]. From the reading of this phrase, it is clear that there is a query with the timeframe imposed by the presiding member in the former condonation judgment, but it is not stated as to what exactly the query is. Is the timeframe short, or long? The “timeframe” is an integral, if not a determinant aspect of the order handed down by the presiding member. In fact, the “timeframe” is the order itself, and the entire judgment hinges on the timeframe placed by the presiding member, Potwana.

34. It is very important to mention that the very nature of a condonation application is to ask to be forgiven, or to overlook the non-compliance by an Applicant, with among others, the timeframe imposed by the Tribunal Rules[20]. A competent order was made with specific reference to the timeframe placed by the member adjudicating the condonation application. Once a query regarding any part of the order is made, and regrettably by the party in whose favour such an order is made, then there is an “appeal” of such an order, simply because the “timeframe” is a substantive element of an order. The question is: can a party in whose favour a condonation judgment has been awarded- query, review, or appeal such an order?

35. Put differently, can a competent and binding order once made, be altered, removed or simply ignored by another Tribunal member?

36. These powers are provided for in Tribunal Rule 3 (2) and this Rule is relevant for a decision of this matter. A member of the Tribunal to whom such power is entrusted becomes functus officio once he/she exercises such power, and he/she cannot undo his/her own decision. In the absence of any statutory provision, once a judicial decision has been taken, it becomes functus officio and the decision cannot be revoked in the absence of a statutory authority to do so.[21] In our law, (the law creating the Tribunal and conferring upon it powers), there is no statutory provision in which it can be said that the prior order can be rectified or changed by another single member.

37. In terms of Rule 3 of the Tribunal Rules, the Tribunal’s power to grant condonation is limited to condone non-compliance with the rules and proceedings of the Tribunal, only.[22]The Tribunal may in respect of its prior rulings only consider matters on appeal in terms of section 148(1) and an application in terms of section 165, for a variation or rescission of a decision or order. So only in these two instances can the Tribunal deal with prior rulings, where a full panel will hear the matter.

38. In his second condonation application Naidoo averred that Mr Potwana’s order is ambiguous as he had already filled his application together with the application for condonation. If one reads paragraph 2 of the order, there is no ambiguity in the ruling. The order states:

“The applicant must apply for leave to refer the complaint to the Tribunal in terms of section 141(1) (b) of the National Credit Act within 20 business days of the issuing of this order by the Registrar”.

39. The wording of the order is quite clear. There is no other reasonable interpretation of the ordinary meaning of the words of the above order that Naidoo had to bring his application for leave within 20 business days of the issuing of the order. The problem emerges when Naidoo asks the official[23] of the Registrar’s office, whether or not there is any further documentation to be submitted to the Tribunal as the application had already been served on the Respondent and filed with the Tribunal, in which instance the official replied that it was not necessary, as his file has been rendered complete and they are waiting for the Respondent (the Appellant in the current proceedings) to file the answering affidavit.[24]

40. The impression created here, is that Naidoo’s leave application was already received by the Tribunal staff, as would appear hereunder during his correspondence with the Tribunal’s staff, where he wrote:

“Dear NCT

I have received condonation for my application NCT/77078/2017/141(1), I would like now to apply for leave to refer my application to the NCT for

consideration”.

41. When he made his order, the Tribunal Member, Mr Potwana may not have considered Naidoo’s application for leave to refer the complaint directly to the Tribunal, which was attached to the condonation application.

42. The Appellant’s assertion that Naidoo’s non-compliance with the order does not fall within the ambit of the limited circumstances as envisaged in Rule 34 (1) (a)-(d), finds resonance with the view held by this Tribunal. The legislature would have explicitly provided that the powers of the Tribunal include condoning the non-compliance with an order, if it had such an intention. Clearly such a provision is non- existent, both in the Act and the subordinate legislation. Naidoo has alleged that the order was unclear and ambiguous as he had served and filed his leave to refer together with the application for condonation and the Registrar’s office had confirmed that his leave to refer application was completed as it complies with all the requirements. Upon receipt of the order, Naidoo contacted the Registrar’s office and it was confirmed that his leave to refer application was complete. It is not unusual for a lay person in the position of Naidoo to act in the way they did and he should not be prejudiced thereby as he acted on advice from the Registrar’s office.

43. The Tribunal member adjudicating the second condonation application, focused on the issue which related to the Notice of complete filing issued by the Registrar’s office. In the matter between Letsoalo v WesBank[25], the Tribunal made it clear that, although the issuance of a Notice of Complete Filing is reasonable and practical, it cannot be relied upon if it is in conflict with the Tribunal Rules. Similarly a Notice of Complete Filing cannot supersede an order of the Tribunal. These remain subordinate to the Act, the Regulations/Rules and Orders of the Tribunal, to the extent that such orders are competent and lawful. Dr Peenze placed too much reliance on the Notice of Complete Filing.

44. The basis of this appeal is that Dr Peenze did not have the power or the jurisdiction to hear the application or to grant a second condonation order, because it is not provided for in the Rules and the NCA. The Rules of the Tribunal do not make provision for the varying, cancelling or altering of an order by a single member, or for the condoning of non-compliance with an order. It is only the non-compliance with the Tribunal Rules that can be condoned. The Tribunal Rules do not circumscribe the Tribunal’s discretion to grant condonation if a party breached or contravened the previous Tribunal order. Once such power is absent, or is not conferred by the National Credit Act and the Rules for the conduct of matters before the National Consumer Tribunal, the granting of a second condonation order, while the initial order is still lawful, competent, pending and executable at the instance of the Applicant, creates a nullity. Similarly the presiding member, did not have the power to reconsider “the timeframe placed by the Presiding Member Potwana, in the former condonation judgment and, by doing so, acted ultra vires when she adjudicated and granted the second condonation application;

45. Accordingly, for these reasons, this appeal succeeds insofar as it relates to the validity of second condonation

application;

46. The Tribunal is empowered to grant the relief the Appellant seeks in this matter. In arriving at

its decision and in consideration of the wide-appeal approach the Tribunal has taken, the

Tribunal has taken due regard of the interlocutory nature of the matter before it; the degree of importance of this matter to the parties; the probable prospects of success inherent in the Respondent’s (the Applicant in the main matter) main matter, and the interests of justice, broadly. The Tribunal further makes the following observations:

46.1 it is not Naidoo’s doing to have two condonation applications heard by two different single members, both condoning his late filing. The Tribunal cannot punish him by denying him the right to have his matter heard by the Tribunal;

46.2 Naidoo, being a lay person, approached the Tribunal’s Registrar’s staff for assistance to file documents. He followed the advice of the Tribunal staff after the order was issued by Mr Potwana, to confirm if there was any need to re-file his leave to refer application which Mr Potwana might not have considered while rendering his judgment;

46.3 the Registrar’s office which is responsible for the management of cases before the Tribunal, issued the notice of complete filing and later withdrew it after the Appellant (Respondent in the main matter) objected to it, as the order was that the application should be re-served and filed with the Tribunal. The Registrar’s office incorrectly withdrew the Notice of complete filing and advised Naidoo to file another condonation application. The officials in the Registrar’s office, once satisfied that the matter meets all the filing requirements in terms of the Rules, should have proceeded to set the matter down and let parties to raise whatever issues they had before the Tribunal;

46.4. Naidoo’s actions herein should not be attributed to him as his fault and for this reason, not bar him from being heard by the Tribunal. The issues around the order from Mr Potwana as well as the issuing and withdrawal of the Notice of complete filing must be owned up by the Tribunal’s administrative staff. Naidoo, being a lay person, has done all he could to seek recourse by approaching the Tribunal for assistance;

46.5 Naidoo, unfortunately found himself in the ‘mix and thick of things’ of this confusion of what ordinarily would have been a clear and straight forward interlocutory application for the Tribunal to hear him;

46.6 Dr Peenze’s judgment sought to amend or vary Mr Potwana’s condonation ruling, and to the extent that such judgment is now set aside, Naidoo should be restored to the position in which he was, had the second condonation application not been adjudicated upon, and the Tribunal’s Registrar’s staff issued and withdrew the Notice of complete filing, and advised him otherwise;

46.7 the assertion by the Appellant that Dr Peenze’s judgment renders redundant

Mr Potwana’s judgment, is not entirely correct. Potwana’s judgment, effectively stands, until set aside by a competent appeal panel of the Tribunal, not a single member. What is before this Tribunal is the Peenze judgment, and not Potwana’s judgment. The Tribunal is limited to the scope of the appeal against the Peenze

judgment. The Appellant did not challenge the Potwana judgment. Instead, the Appellant has asserted that the latter remains in force until set aside by a full bench of the Tribunal in terms of the relevant provisions of the NCA;

46.8 the effect of this appeal is that the Peenze judgment was made in error. However, there are two questions the Tribunal must ask, mero motu: First, what is the effect of this error insofar as it relates to Naidoo’s substantive right (or privilege or advantage / if any) to be heard by the Tribunal. Second, what prejudice (if any) would the Appellant suffer if Naidoo is allowed to refer his matter before the Tribunal, in order to hear the leave application? It would be unfair for this Tribunal to deny Naidoo an audience by the Tribunal, as he would suffer prejudice on account of something he was not responsible for, as compared to the prejudice (if any), the Appellant may suffer;

46.9 the Appellant has not argued that they did not receive the application for leave to refer as that was served with the application for condonation which was considered by Mr Potwana. The main issue from the Appellant was that the Respondent failed to comply with the order to re-serve and file the application for leave to refer;

46.10 the application for leave to refer was correctly rendered complete by the Registrar’s office. The notice was issued to both parties. The Registrar’s office unfortunately withdrew the aforesaid notice after an objection from the Appellant. Naidoo relied on the information from the Registrar’s office.

47. In the result, the Tribunal makes the following order:

ORDER

48. The second condonation order made by the single member Dr Peenze, is set aside and accordingly dismissed;

49. The Registrar must issue a notice to the parties giving the Respondent (Appellant in this

matter) an opportunity to file an answering affidavit to an application for leave to refer, and also affording the Applicant the

opportunity to reply in terms of the Rules;

50. The Registrar to set the matter down for the leave application to be heard;

51. There is no order as to costs.

DATED AT CENTURION ON THIS 11TH DAY OF MAY 2018

[ signed ]

FATI MANAMELA

Presiding Member

With Mesdames P BECK-PAXTON and M NKOMO, concurring

[1] Dr Peenze

[2] Or the single member, Dr Peenze

[3] Presided by a single member, Mr A Potwana,

[4] The order is dated 31 August 2017 and was issued on 4 September 2017

[5] Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, 2007 published under GN 789 in Government Gazette 302252 on 28 August 2007

[6] Naidoo had until 3 October 2017 to file his application

[7] Para 46, page 11 of the judgment by Dr Peenze

[8] According to Naidoo, there was confusion due to the procedural awkwardness that allegedly followed after the condonation ruling by the Presiding Member Potwana, namely that the Applicant should file its Application to Refer within 20 days after the Condonation Ruling. According to Naidoo, this awkwardness was brought about by the receiving of a Notice of Complete Filing from the Tribunal

Registrar’s office regarding the Application to Refer, shortly after the Condonation Order had been issued.

[9] The Appellant referred the Tribunal to the matter between Letsoalo v WesBank, where the Tribunal made it clear that, although the issuance of a Notice of complete Filing is reasonable and practical, it cannot be relied upon if it is in conflict with the Tribunal Rules.

[10] Appellant acknowledged that this was not the best argument the Bank has to state, their best argument in this regard is that the rules do notprovide for the varying of this order or for a second condonation application order.

[11] Dies non. See Rule 2 of the Tribunal Rules. The Appellant argues: “similarly in terms of Rules 19 of the Uniform Rules of Court and Rule 13 of the Magistrate’s Court Rules the stated dates are included in counting the dies non. The intention of the Legislature when calculating the dies non was that both the first day and the last day must be included in the calculation of the dies non.

[12]The Tribunal was referred to the matter of Lange v Chief Electoral Officer 1951(2) SA 51 at 54, where it was stated that: “although the prohibition…… in one day and another day may undoubtedly be referring only to the period from the end of the first day until the start of the second day”. Similarly when it’s provided that the days between 24 December and 2 January are dies non, both days are inclusive in the calculation of the dies non. According to the Appellant, the bank under these circumstances actually filed its application one day earlier, that is, the Friday of the 12th as it should have been. The latest that it had to be filed was, according to the Appellant, on Monday the 15th.

[13]The Uniform Rules of the High Court and the Magistrate’s Court Act bear reference here, where the approach is that the days between 21 December and 2 January are both inclusive.

[14] 2003 (11) BCLR 1212 (CC) at para [11]

[15] Van Wyk v Unitas Hospital and Others [2007] ZACC 24; 2008 (4) BCLR 442 (CC) at para 20 as applied in Camagu v Lupondwana Case No 328/2008 HC Bisho

[16] 1962 (4) SA 531 (A) at 532C-F

[17] See also 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

[18] Section 26(1)(d) of the NCA

[19] Page 2 of 21 of the judgment record of Dr Peenze

[20] Rules for the Conduct of Matters Before the National Consumer Tribunal published under Government Notice 789 in Government Gazette 30225, 28 August 2007

[21] Functus officio means having discharged his duty. The judge or magistrate, (or tribunal member) who passed his order become functus officio, meaning, once the order is passed, it cannot be retired or reheard by the same judge or the same magistrate on the same matter. Once a court has passed a valid sentence after a lawful hearing, it is functus officio and cannot reopen the case.

[22] The Tribunal’s powers are limited by Rule 34(1) of the Tribunal Rules, which prescribe the circumstances under which a

party may apply for condonation, which are to: condone a late filing of a document or application; extend or reduce the time allowed for filing or serving; condone the non-payment of a fee; or condone any other departure from the rules and procedures.

[23] Mr Elliot Nyoni

[24] An extract from the transcribed record of the proceedings states: MR NAIDOO: “ What happened thereafter sir was I emailed the NCT and I asked them, well I actually told them that the 15 days have now lapsed and whether the respondent in the original matter was supposed to issue an answering affidavit. I told them that the respondent has now requested another application to be sent through and this is how we got to the case of the second condonation. I did explain to them that based on that email I proceeded and waited accordingly for the answering affidavit. I was later advised by the NCT that I should now send through a separate application with a second corresponding condonation application. So this guidance of a second condonation came after I (indistinct) the fact that there was no answering affidavit received based on the original email sent through by Mr Elliott Nyone”

[25] NCT 82802/2017/128[2017]ZANCT