Marong Rong Cash Loans CC v National Credit Regulator In Re: National Credit Regulator v Marong Rong Cash Loans CC (NCT/98839/2018/57(1) NCA) [2018] ZANCT 53 (26 June 2018)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/98839/2018/57(1) NCA – Rule 34

In the matter between:

MARONG RONG CASH LOANS CC APPLICANT

and

NATIONAL CREDIT REGULATOR RESPONDENT

IN RE:

NATIONAL CREDIT REGULATOR APPLICANT

MARONG RONG CASH LOANS CC RESPONDENT

Coram:

Adv. J. Simpson - Presiding member

JUDGMENT AND REASONS

(CONDONATION FOR LATE FILING OF ANSWERING AFFIDAVIT)

APPLICANT

1. The Applicant in this matter is Marong Rong Cash Loans CC (“the Applicant” or “Marong”). The Applicant is the Respondent in the main matter.

RESPONDENT

2. The Respondent is the National Credit Regulator (“the Respondent” or “NCR”). The Respondent is the Applicant in the main matter.

BACKGROUND

3. The NCR lodged an application against Marong with the Tribunal on 8 January 2018. The application was lodged in terms of section 57(1) of the National Credit Act 34 of 2005 (“the NCA”). The NCR essentially alleges that Marong is a registered credit provider that has contravened the NCA by failing to conduct proper affordability assessments and charging excessive interest. The

NCR is requesting the cancellation of Marong’s registration, an administrative penalty and an order to refund excess interest charged to consumers.

4. The application was sent to Marong by registered post on 21 December 2017. No answering affidavit was filed by Marong and the matter was set down for hearing on 20 March 2018. It appears the parties agreed to a postponement of the hearing to enable Marong to file an answering affidavit. On 4 April 2018 Marong filed an incomplete application to condone the late filing of the answering affidavit. The complete application together with an affidavit was subsequently filed on 4 May 2018. The NCR has not filed any affidavit opposing the application for condonation.

MARONG’S SUBMISSIONS

5. The single affidavit by Marong does not clarify whether it is an affidavit only in support of the application for condonation or whether it is an answering affidavit. The affidavit appears to address issues relating to the condonation and also relating to the main application. The affidavit does not contain any request to file a further affidavit or a time line for doing do. It is therefore accepted that the affidavit is meant to serve as a combined affidavit to condone and as an answering affidavit.

6. Marong essentially avers that it never received the application filed by the NCR and only became aware of the application when a Tribunal staff member contacted them during March 2018 to inquire why they had not filed an answering affidavit. Marong’s representative then reached an agreement with the NCR that the hearing be postponed. Marong submits that it would suffer severe prejudice if they were not permitted to file an answer to the application. They did not negligently or wilfully fail to respond to the application.

7. Marong does not appear to deny the allegations made against them. They submit that their systems and processes were still very new when the investigation was done in 2016. They now comply with the NCA and will plead for leniency regarding the sanctions requested by the NCR.

APPLICABLE SECTIONS OF THE NCA AND RULES[1]

8. Rule 34 (1) states “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.”

9. Rule 34 (2) states “The Tribunal may grant the order on good cause shown”.

10. 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”.

APPLICABLE LEGAL PRINCIPLES

11. 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].

12. 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.

13. 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 a discretion on an objective conspectus of all the facts. Factors that are relevant include but are not limited to:

13.1 the nature of the relief sought;

13.2 the extent and cause of the delay;

13.3 the effect of the delay on the administration of justice and other litigants;

13.4 the reasonableness of the explanation for the delay;

13.5 the importance of the issue to be raised in the intended appeal; and

13.6 the prospects of success.[5]

14. 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).”

15. From the dictum in Melane it was held that these factors are interrelated and should not be considered separately.

CONSIDERATION OF THE MERITS

16. In evaluating the merits of the application the Tribunal will consider the following factors –

16.1 The application for condonation is not opposed by the NCR;

16.2 Marong does not appear to be denying the allegations made by the NCR but wishes to make submissions in respect of the possible sanctions to be imposed. This appears to be a case that is suitable for settlement between the parties; and

16.3 It would be in the interest of justice to allow the filing of the answering affidavit, which will enable the parties to settle the matter.

17. The Tribunal finds that the factors listed above constitute good cause in these specific circumstances. The Tribunal therefore grants the application and the late filing of Marong’s answering affidavit is condoned.

18. As the filing of Marong’s answering affidavit has been condoned, the NCR is granted an opportunity to file a replying affidavit.

ORDER

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

19.1 Condonation is hereby granted to Marong for the late filing of the answering affidavit;

19.2 The NCR may file an a replying affidavit in response to the answering affidavit within 10 business days after the judgment is issued to the parties; and

19.3 No order is made as to costs.

DATED 26 JUNE 2018

[signed]

Adv J Simpson

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.