Mnweba v National Credit Regulator (NCT/129993/2019/59 NCA- Rule 34) [2019] ZANCT 73 (20 May 2019)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/129993/2019/59 NCA- Rule 34

In the matter between:

BONGANI MNWEBA

APPLICANT

and

NATIONAL CREDIT REGULATOR

RESPONDENT

Coram:

Adv. J. Simpson - Presiding Tribunal member

CONOONATION RULING ANO REASONS

APPLICANT

1. The Applicant in this matter is Bongani Mnweba, a major male (hereinafter referred to as "Mr Mnweba" or "the Applicant").

Mr Mnweba is also the Applicant in the main matter.

RESPONDENT

2. The Respondent is the National Credit Regulator (hereinafter referred to as "the Respondent" or "the NCR"). The NCR is a regulatory institution created by section 12 of the National Credit Act 34 of 2005 ("The NCA".)

BACKGROUND

3. Mr Mnweba was a registered debt counsellor with registration number NCRDC 1894. He was first registered in October 2013. He engaged in the practice of a debt counsellor and all his debt review clients paid their monthly contributions through a Payment Distribution Agent called DC Partners. Mr Mnweba received his monthly after-care fees from DC Partners. During August 2014 he received an email from the NCR informing him of a complaint lodged against him by a client. During October 2014 he did not receive his usual fees from DC Partners. He was informed by DC partners that the NCR had instructed it not to make any payments to him, due to him not co-operating with the NCR.

4. He did not receive any response to his queries to DC Partners and the NCR. During December 2015 he started making further inquiries

regarding the matter but still did not receive a response. Mr Mnweba then became severely depressed and required medical attention and assistance.

5. During January 2017 he again started engaging with the NCR. He received a notice from the NCR dated 15 May 2017. The Notice stated that his registration as a debt counsellor had lapsed. The Notice does not state from when the lapsing took place. During 2018 he had further engagements with the NCR but there was no progress on the issue.

6. On 3 April 2019 Mr Mnweba filed an application with the Tribunal in terms of section 59(1) of the NCA[1]. He is asking the Tribunal to review the decision of the NCR. Based on his application he is asking for the following orders:-

6.1 Declare that the instruction given by the NCR to DC Partners was unlawful;

6.2 To order the NCR to pay R10 024100.00in damages to Mr Mnweba; and

6.3 To direct that the NCR reinstate his registration as a debt counsellor as from September 2014.

7. In April 2019 Mr Mnweba also filed an application to condone the late filing of the main application. His application does not state the basis of the condonation. The issue however relates to Row 4 of table 2 of the Rules[2], which requires that the applicant lodge the section 59(1) application within 20 business days of the Regulator's decision or later if the Tribunal permits. This Ruling concerns the application for condonation.

8. In support of his application for condonation, Mr Mnweba submits that he suffered from severe depression from 2014. He attached medical notes by his psychiatrist from that period. He lost track of time during this period. He has now recovered and is in a position to proceed with the matter. He submits that the NCR will not suffer any prejudice as they were still dealing with the issue in 2018.

9. The handwritten notes on the medical records do not appear in any chronological order. A stamp with the date 29 April 2016 can be seen. One of the notes refers to the date of 23 February 2017.

APPLICABLE SECTIONS OF THE ACT AND CASE LAW

10. Rule 34 (1) provides "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.”

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

12. Row 4 of Table 2 contained in the Rules provides that the Applicant must file the Section 59(1) application "Within twenty business days of the date of the Regulator's decision, or later if the Tribunal permits".

13. To condone means to "acceptor forgive an offence or wrongdoing". The word stems from the Latin term condonare, which means to “refrain from punishing''[3] . It can also be defined to mean "overlookor forgive (wrongdoing)”[4].

14. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[5] it was held that the standard of considering an application of this nature is the interests of justice.

15. 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:

15.1 the nature of the relief sought;

15.2 the extent and cause of the delay;

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

15.4 the reasonableness of the explanation for the delay;

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

15.6 the prospects of success[6]

16. In Melane v Santam Insurance Company Limited[7] 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 151LJ 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.)"

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

CONSIDERATION OF THE MERITS

18. The NCR has not opposed the application for condonation. It is therefore only the version of Mr Mnweba that needs to be considered.

19. The decisions by the NCR, which Mr Mnweba is asking to be reviewed, took place many years ago. It is not clear from the application for how long Mr Mnweba was incapacitated but it appears to have been for some years at least. It can be argued that Mr Mnweba could have lodged the application much sooner. The Tribunal will however consider that his unfortunate condition at the time was a major cause of the delay. The NCR's decisions clearly had a profound effect on Mr Mnwebe and were serious in nature. It is in the interest of justice that Mr Mnweba be granted an opportunity to have his application heard.

20. The Tribunal can note however that Mr Mnwba's claim for damages is not provided for in section 59 of the NCA. The Tribunal does not have any powers to award damages. The condonation is therefore only granted in respect of the late filing of the application and does not provide any confirmation that a claim for damages may be heard or considered.

21. As the application for condonation is not opposed, the factors considered above will be regarded as sufficient to grant the application for condonation.

ORDER

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

22.1 The application to condone the late filing is granted; and

22.2 No order is made as to costs.

DATED ON THIS 20TH DAY OF MAY 2019.

Adv. J. Simpson

Presiding Tribunal Member

[1] 59. Review or appeal of decisions.- (1) A person affected by a decision of the National Credit Regulator under this Chapter may

apply to the Tribunal to review that decision, and the Tribunal may make an order confirming or setting aside the decision in whole or in part. (2) An order contemplated in subsection (1) may include an order setting aside any condition attached to a registration if the Tribunal is not satisfied that the condition is reasonable and justifiable, having regard to the objects and purposes of this Act, the circumstances of the application or review, as the case may be, and the provisions of section 48. A decision by the Tribunal in terms of this section is subject to appeal to, or review by, the High Court to the extent permitted by section 148

[1] 59. Review or appeal of decisions.- (1) A person affected by a decision of the National Credit Regulator under this Chapter may

apply to the Tribunal to review that decision, and the Tribunal may make an order confirming or setting aside the decision in whole or in part.

(2) An order contemplated in subsection (1) may include an order setting aside any condition attached to a registration if the Tribunal is not satisfied that the condition is reasonable and justifiable, having regard to the objects and purposes of this Act, the circumstances of the application or review, as the case may be, and the provisions of section 48.

A decision by the Tribunal in terms of this section is subject to appeal to, or review by, the High Court to the extent permitted by section 148

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

Tribunal, 2007

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

[4] Collins English Dictionary and Thesaurus. Fourth Edition2011, at pg170

[5] 2003 (11) BCLR 1212 (CC) at para[11].

[6] 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.

[7] 1962 (4) SA 531 (A) at 532C·F