JDG Trading Proprietary Limited and Another v National Credit Regulator; In re: National Credit Regulator v JDG Trading Proprietary Limited and Another (NCT/29052/2015/140(1)(P)) [2017] ZANCT 127 (1 November 2017)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/29052/2015/140(1)(P)

In the matter between:

JDG

TRADING PROPRIETARY LIMITED 1st

APPLICANT

JDG

MICRO LIFE LIMITED 2nd

APPLICANT

And

NATIONAL

CREDIT

REGULATOR

RESPONDENT

In Re

NATIONAL

CREDIT

REGULATOR

APPLICANT

JDG

TRADING PROPRIETARY LIMITED 1st

RESPONDENT

JDG

MICRO LIFE LIMITED 2nd

RESPONDENT

Coram:

Adv FK Manamela: Presiding member

Judgment handed down: 19 May 2017

CONDONATION

JUDGMENT

(In respect of Non-compliance with a Rule or Procedure for the Conduct of Matters before the Tribunal- Rule 34 of the Tribunal Rules)

APPLICANT

1. The Applicants in this matter are JDG TRADING PROPRIETARY LIMITED and JOG MICRO LIFE LIMITED ("the Applicants"). The Applicants are the First and Second Respondents in the main matter under case reference

number NCT/29052/2015/140(1).

For ease of reference, the First and Second Respondents will, for the purpose of this judgment, be referred to as The Applicants

2. The Applicants were represented by Louis Jacobus Du Preez of Werksmans Attorneys, Incorporated.

RESPONDENT

3. The Respondent is the National Credit Regulator a juristic person established in terms of the National Credit Act, ("hereinafter

referred to as the NCR"). The Respondent is the Applicant in the main matter and will for the purpose of this judgment, be called the Respondent.

4. The Respondent is represented by Mr Enslin Nel of Hogan Lovells Attorneys, Incorporated

5. This is an application to condone the non- compliance with a Rule or procedure, as required by the Rules for the conduct of matters before the Tribunal. The Applicant seeks condonation to file further supplementary affidavits in respect of the main matter.

BACKGROUND

TO THIS APPLICATION

6. This matter comes before the Tribunal for the second time, for the same relief sought. [ Briefly], in the main application the NCR approached the Tribunal for an order in the following:

6.1 declaring the Respondent to be in repeated contravention of sections 101(1)(a); 102(1); 90(1) (2)(a)(ii) and 91(1) of the Act;

6.2 declaring further that the contraventions referred to above, constitute conduct prohibited by the Act;

6.3 directing the First Respondent, alternatively the Second Respondent, further alternatively both Respondents, jointly and severally, the one paying the other to be absolved, refund all pensioners receiving government social grants who were, from 2007 to date, charged retrenchment and occupational disability premiums as part of credit insurance, such premiums;

6.4 directing the First Respondent to refund all consumers who were, from 2007 to date, charged club fees by the First Respondent, such fees;

6.5 directing that an independent audit be done, at the First Respondent's cost, of all of its consumers who have taken out retrenchment and occupational disability covers as part of credit insurance and those who were charged club fees by the First Respondent since 2007 to date, in order to identify those consumers who are entitled to refund, which report must be submitted to the Applicant and the Tribunal within 90 days of the order containing: (i) full details of the consumers;(ii) an indication of whether each of the consumers is a pensioner receiving a pension or government social grant; and (iii) retrenchment cover, occupational disability cover and club fee and the amount thereof for each consumer; and

6.6 further and I or alternative relief as the Tribunal may consider appropriate to give effect to the consumer's rights in terms of the Act as per section150(i) of the NCA.

7. On 14 October 2015 the Respondent (Applicant in the main application) delivered its replying affidavit, together with an application for condonation in respect of the late filing thereof. On 11 November 2015 the Tribunal delivered a Notice of Incomplete Filing (dated 20 October 2015) in response to the Respondent's condonation application.

8. On 17 November 2015 the Respondent delivered its amended Notice of Application for condonation in respect of the late filing of its replying affidavit. The Applicants (Respondents in the main matte did not oppose the condonation application.

9. The Tribunal granted the condonation application by the Respondent (dated 14 December 2015) but delivered the ruling via e-mail on 10 February 2016.

10. Upon receiving and studying the Respondent's replying affidavit, the First and Second Applicants had formed the view that the Respondent's replying affidavit raised certain new material not contained in the Respondent's founding affidavit, to which the Applicants had not had the opportunity to answer in their answering affidavits. The new material is to be found in paragraphs 6.8.3; 6.8.5 and 6.10 of the Respondent's replying affidavit.

11. Acting on the assumption that the Tribunal would in due course grant condonation to the Respondent's late filing of its replying

affidavit, the Applicants commenced with the preparation of a supplementary answering affidavit ("the further affidavit")

to be filed in consequence of the new material raised by the Respondent in reply.

12. On 7 December 2015, the further affidavits deposed to by Rika Maharaj ("Maharaj") of the First Applicant, and accompanied by the confirmatory affidavits of Biljon; Malapane and Msibi were filed respectively.

THE

CURRENT CONDONATION APPLICATION

13. According to the Applicants' attorney, Maharaj has since left the employ of the Applicants.

14. Mr Pierre Burger, formally the attorney of the Applicants, based in Johannesburg, has now been replaced by Mr Louis Jacobus Du Preez, the attorney of the Applicants, the deponent moving this application.

15. The founding affidavit of Maharaj, according to Mr Burger, needed to be substantially supplemented in order to ensure that the entire case of JDG Trading is properly placed before the Tribunal, as would appear later in the Applicants' discussion of this matter with the Respondent in July/ August 2016.

16. Subsequently the matter was set down for hearing on 29 and 30 August 2016, but did not proceed as initially appointed, by agreement

between the parties.

17. On 24 January 2017, the matter was enrolled for a pre-hearing meeting where Applicants indicated their intention to supplement their answering papers. The Respondent, however, did not intend to supplement its founding papers.

18. By mutual agreement during the pre-hearing conference, the parties then agreed that JDG Trading would be afforded the opportunity to file this application in February 2017.

19. To this end, the Applicants seek condonation to file the supplementary answering affidavits in terms of Rule 34(1) (a) and (d)

of the Rules for the Conduct of Matters before the Tribunal.

20. The Tribunal issued a Notice of Complete filing dated 10 March 2017, which renders this application complete and ready to be adjudicated upon.

APPLICABLE

SECTIONS OF THE ACT AND CASE LAW

21. Rule 34 (1) [1]states "A party may apply to the Tribunal in Form Tl 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."

22. Rule 34 (2) states "The Tribunal may grant the order on good cause shown".

23. Rule 13 (1) states "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.

13(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".

24. 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”[2]. It can also be defined to mean "overlook or forgive (wrongdoing)”[3]

25. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[4] it was held that the standard of considering an application of this nature is the interests of justice.

26. 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:

(1) the nature of the relief sought;

(2) the extent and cause of the delay;

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

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

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

(6) the prospects of success[5]

27. In Melane v Santam Insurance Company Limited[6] 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)."

28. In Melane it was held that these factors are interrelated and should not be considered separately.

CONSIDERATION

OF THE MERITS

29. In evaluating the merits of the application the Tribunal considered the following factors -

• The application for condonation is not opposed by the Respondent. The parties reached a mutual agreement to follow this course;

• The Respondent will not suffer prejudice if such condonation is granted in that the Applicants in any event are required to fully answer to the allegations made by the Respondent in its founding affidavit;

• The interests of justice would be served, for these affidavits to be admitted into the record, if any new material raised by the Respondent would need the Applicant's reply thereto.

• The Tribunal will be appraised of all the information relevant to the fair adjudication of the main matter. The Tribunal further considers this matter to be substantially important to all the parties.

30. The Tribunal finds that the factors listed above constitute good cause in these specific circumstances. The Tribunal therefore grants this application. The filing of the Applicants' further supplementary affidavits is condoned.

31. As the further filing of the supplementary affidavit has been condoned, the normal time periods and processes of the filing of papers as set out in the Rules of the Tribunal, now apply.

ORDER

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

32.1 Condonation is hereby granted to the Applicants for the further filing of the supplementary affidavits within 15 business days of this order. The NCR may file its replying affidavit in accordance with the Rules of the Tribunal in the normal course.

32.2 No order is made as to costs.

DATED ON THIS 1st day of November 2017

[signed]______

FK

MANAMELA

Presiding Member

[1] Regulations for Matters Relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal, 2007

[2] Oxford English Dictionary, Second Edition at pg 151

[3] Collins English Dictionary and Thesaurus, Fourth Edition 2011, at pg170.

[4] 2003 (11)

BCLR 1212 (CC) at para[11].

[5] Van Wyk v Unitas Hospital and Others 2008(4)

BCLR 442 (CC) at para 20 as applied in Camagu v Lupondwana Case No 328/2008 HC Bisho.

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