Mercedes-Benz Financial Services South Africa (Pty) Ltd v National Credit Regulator (NCT/107156/2018/56(1)) [2019] ZANCT 47 (23 April 2019)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/107156/2018/56(1)

In the matter between:

MERCEDES-BENZ FINANCIAL SERVICES SOUTH AFRICA (PTY) LTD APPLICANT

and

NATIONAL CREDIT REGULATOR

RESPONDENT

In the condonation application between:

MERCEDES-BENZ FINANCIAL SERVICES SOUTH AFRICA (PTY) LTD APPLICANT

Coram:

Mr. Potwana – Presiding member

________________________________________________________________________

CONDONATION JUDGEMENT

(Condonation for the late filing of a supplementary affidavit)

THE PARTIES

1. The Applicant is Mercedes-Benz Financial Services South Africa (Pty) Ltd; a company that is duly incorporated and registered in terms of the company laws of the Republic of South Africa; with its registered address at 123 Wierda Road, Swartkopz, Centurion. The Applicant is registered with the National Credit Regulator as a credit provider in

terms of Section 40 of the National Credit Act 34 of 2005 (“the NCA”).

2. The Respondent is the National Credit Regulator (“NCR”); a juristic person established in terms of Section 12 of the NCA.

TYPE OF APPLICATION AND JURISDICTION

3. In this application; the Applicant seeks condonation for the late filing of its supplementary affidavit. The application is made in terms of Rule 34 of the Tribunal Rules.[1]

4. In terms of Section 142(3)(c) of the NCA[2] read with Rule 34 of the Tribunal Rules; the National Consumer Tribunal (“the Tribunal”) has jurisdiction.

BACKGROUND

5. On 28 March 2018; the Respondent served a compliance notice on the Applicant in terms of Section 55 of the NCA. The Applicant responded by filing an objection. On 28 November 2018; a pre-hearing conference

was held at the offices of the Tribunal. Subsequently; a minute of the pre-hearing conference was issued to the parties. Item 2.1 of the pre-hearing minute states -

“The Applicant will make an election whether to file further affidavits and exercise it by 14 December 2018, subject to the Tribunal Rules.”

6. On 14 December 2018; the Applicant served its supplementary affidavit on the Respondent and the Tribunal by email. On 18 December 2018; the Applicant filed the supplementary affidavit with the Tribunal.

FACTS

7. On 21 January 2019; the Tribunal addressed an email to both parties in which it expressed its intention to set the matter down for hearing. In this email; the Tribunal stated that the supplementary affidavit was filed late and therefore not properly before the Tribunal as it was received on 18 December 2018.

8. On 23 January 2019; the office of the Registrar of the Tribunal sent an email to the parties stating; inter alia; that:

“As per the determination of the Registrar of the Tribunal the applicant is required to file a condonation application that meets our filing requirements and this should be filed by 1st February 2019, no later than 16h00 close of business.”

9. On 31 January 2019; Applicant filed an application for condonation.

The application is supported by an affidavit. The basis for the Applicant’s application for condonation is that; it served the supplementary affidavit; as contemplated in the pre-hearing minute; “by way of email on the respondent and on the Tribunal.” Copies of this email are annexed to the affidavit and marked “CA3.1” and “CA3.2”.

10. The Applicant contended that; on the proper interpretation of Rules 30 and 31 of the Tribunal Rules; the present application was unnecessary. The basis for this contention was that; on 14 December 2018; the Applicant sent a copy of its supplementary affidavit to the Respondent and the Tribunal. This electronic delivery was followed by

a physical delivery of the supplementary affidavit at the Tribunal’s offices on 18 December 2018. This manner of delivery complied with what is prescribed by Rule 30(2) read with Rule 30(1)(a) of the Tribunal Rules. Given that 17 December was a public holiday; physical delivery of the supplementary affidavit occurred within one day of the electronic delivery. Therefore; the Applicant complied with the provisions of the Tribunal Rules.

11. The Applicant submitted that it would suffer substantial prejudice if the application for condonation was refused. It submitted that the delay had not affected the administration of justice; and that it was plainly in the interest of justice that the Applicant be granted condonation.

12. The Respondent served and filed an answering affidavit. It submitted that the Applicant’s supplementary affidavit should be treated as pro non scripto. The Respondent contended that the supplementary affidavit was not served or delivered in accordance with the Tribunal Rules as it was not accompanied by a Form TI.r30A as set out in Rule 30(1)(a) of the Tribunal Rules.

13. The Respondent submitted that; the filing of the Applicant’s affidavit was to be done as per the procedure set out in Practice Note 01 of 2018 that was issued by the Registrar on 18 May 2018. This procedure required that an application for condonation in terms of Rule 34(1)(a) and )(d) be filed with a supplementary affidavit. The Respondent argued that; by including the supplementary affidavit in the indexed bundle of documents; the Applicant failed to comply with the Tribunal’s Rules. Also; the Applicant’s email attaching the index was sent to the Tribunal and the Respondent at 17h05. This was outside the Tribunal’s operating hours of 09h00 to 13h00 and from 14h00 to 16h00 as specified in Rule 2(1) of the

Tribunal Rules.

14. The Respondent pointed out that the Applicant’s condonation application dealt solely with the late filing of the Applicant’s supplementary affidavit; and not with the Applicant’s departure

from the Tribunal Rules. The Respondent sought clarification on the status of the supplementary affidavit.

15. The Applicant filed a replying affidavit. In this affidavit; the Applicant submitted that two of the points relied upon by the Respondent were technical in the extreme. The Applicant argued that the procedure envisaged in the Practice Note was not applicable as the filing of the supplementary affidavit was “mandated by the Tribunal”.[3] It argued that its failure to file its supplementary affidavit under cover of Form TI.r30A was a technical failure that caused absolutely no prejudice to the respondent; and was not a failure for which the respondent required the applicant to seek condonation.

16. The Applicant argued against the Respondent’s contention that; as the Tribunal’s Rules do not make provision for the filing of a supplementary affidavit; the Applicant’s supplementary affidavit was required to be accompanied by an application for condonation in accordance with Rules 34(1)(a) and (d). The basis for the Applicant’s argument was that; an application for condonation was unnecessary in circumstances where the party filing a supplementary document or affidavit was doing so in terms of a directive that was issued by the Tribunal. The Applicant submitted that if the Tribunal held a different view; the Applicant was not aware that it should apply for condonation

before or simultaneously with the filing of the supplementary affidavit; “and bona fide believed that it had the leave of the Tribunal to file the affidavit”. [4]

17. The Applicant submitted that the Respondent conceded that no prejudice was suffered as a result of the alleged late filing.

ISSUES TO BE DECIDED

18. The Tribunal must decide; on a balance of probabilities; whether the Applicant’s application for condonation for the late filing of its supplementary affidavit should be condoned.

THE LAW

19. Rule 34 (1) of the Tribunal Rules states that:

“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.”

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

21. 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”[5]. It can also be defined to mean “overlook or forgive (wrongdoing)”[6].

22. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[7] it was held that the standard of considering an application of this nature is the interests of justice.

23. 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:

23.1. the nature of the relief sought;

23.2. the extent and cause of the delay;

23.3. the effect of the delay on the administration of justice and other litigants;

23.4. the reasonableness of the explanation for the delay;

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

23.6. the prospects of success.[8]

24. In Melane v Santam Insurance Company Limited[9] 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).”

25. From the dictum in Melane, it is clear that the above factors are interrelated and should not be considered separately.

CONSIDERATION OF THE MERITS

26. The nature of the relief sought; namely; condonation for the late filing of a supplementary affidavit; is ill-conceived. Such an application can only be made; in terms of Rule 34(1)(a); when a party to the proceedings was granted leave; in terms of Rule 34(1)(d); to file the supplementary affidavit but failed to do so within the stated time. The reason is that; the Tribunal Rules do not make provision for the filling of a supplementary affidavit. Therefore; a party who wishes to file such an affidavit should seek condonation for departing from the rules or procedures in terms of Rule 34(1)(d) of the Tribunal Rules. In the present matter; the Applicant never sought and was never granted condonation to file a supplementary affidavit. It follows that the Applicant cannot seek condonation for the late filing of a supplementary affidavit.

27. However; it is noted that the minute of the pre-hearing conference did not explicitly state that the Applicant had to seek condonation if it wished to file a supplementary affidavit. In the absence of a clear and specific minute or directive to seek condonation to file a supplementary affidavit; I find that; based on a preponderance of probabilities; it is conceivable that the Applicant mistakenly believed that the Tribunal’s minute of the pre-hearing conference granted it leave to file the supplementary affidavit.

28. Notwithstanding the Applicant’s bona fide mistaken belief; and as correctly pointed out by the Respondent; the Applicant ought to have made an application to file a supplementary affidavit. The Applicant still bears the onus of showing good cause why it should be allowed to file a supplementary affidavit.

CONCLUSION

29. The Tribunal finds that the application for the late filing of a supplementary affidavit was ill-conceived and premature.

30. If the Applicant wants to file a supplementary affidavit; it must seek condonation for departing from the Tribunal Rules and procedures. In view of the deadline stated in the minutes of pre-hearing; 14 December 2018; the Applicant should consider serving and filing an application for the late filing of the supplementary affidavit in addition to or simultaneously with the application to file the supplementary affidavit.

ORDER

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

31.1. The application to condone the late filing of the Applicant’s supplementary affidavit is premature;

31.2. The Applicant may file an application to condone the filing of its supplementary affidavit within 30 days of the issuing of this judgement;

31.3. The Applicant may file the application for the late filing of its supplementary affidavit simultaneously with the application to file a supplementary affidavit; and

31.4. No order is made as to costs.

Thus done and signed at Centurion on 23 April 2019.

[signed]

……………..

Mr A Potwana

Presiding Tribunal 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 (as amended).

[2] Section 142(3)(c) of the NCA provides that the Chairperson of the Tribunal must assign applications to permit late filing to a single member of the Tribunal “sitting alone”.

[3] Paragraph 11 of the Applicant’s Replying Affidavit.

[4] Paragraph 29 of the Applicant’s Replying Affidavit.

[5] Oxford English Dictionary, Second Edition at pg 151.

[6] Collins English Dictionary and Thesaurus, Fourth Edition 2011, at pg 170.

[7] 2003 (11) BCLR 1212 (CC) at para[11].

[8] 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.

[9] 1962 (4) SA 531 (A) at 532C-F.