National Credit Regulator v Adams t/a SA Credit Solutions (Pty) Ltd (NCT-116600-2018-57(1)) [2019] ZANCT 70 (14 May 2019)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case Number: NCT-116600-2018-57(1)

In the matter between:

NATIONAL

CREDIT REGULATOR

APPLICANT

and

ZAHID ADAMS t/a SA CREDIT SOLUTIONS (PTY) LTD

RESPONDENT

Coram:

Dr. MC Peenze – Presiding Tribunal Member

Adv. J Simpson- Tribunal MemberMs. Diane Terblanche – Tribunal Member

POSTPONEMENT

RULING

INTRODUCTION

1. Details of the Parties

1.1 The Applicant is the National Credit Regulator (the "NCR"), a juristic person established by section 12 of the National Credit Act, 34 of 2005 (the "NCA"); and

1.2 The Respondent is Zahid Adams trading under the name and style of SA Credit Solutions (Pty) Ltd, with registration number NCRDC426.

BACKGROUND

2. This is an application in terms of Section 57(1)(c) of the NCA, wherein the Applicant seeks the Tribunal for an order to cancel the registration of the Respondent as a Debt Counsellor; because the Respondent has allegedly repeatedly contravened the NCA, the

regulations[1] and the conditions of the Respondent's registration.

3. The Respondent initially failed to file its Answering Affidavit and applied for Condonation. The Condonation ruling directed that the answer be filed by no later than 15 March 2019. The answer was filed at 00:03 am on the 16th of March 2019. It was therefore ruled late by the Registrar and was not included into the pleadings.

4. The Registrar continued, according to the Rules of the Tribunal, to set the matter down on a default basis for hearing. The matter was heard on 9 May 2019.

THE

HEARING

5. At the hearing, both parties were present, in spite of the matter having been set down on a default basis. The Applicant was represented by Ms Leanne Schwartz. The Respondent was represented by Ms Lizelle Squirra.

6. The Respondent explained its presence as an attempt to request a postponement in order to properly file another application for

condonation for the second late filing of its answering affidavit.

7. The Applicant opposed the request for postponement and the Tribunal invited both parties to present argument on the request for

postponement.

BRIEF OUTLINE OF PARTIES' ARGUMENTS

The Respondent

8. The Respondent indicated that Counsel was only briefed the day before and was not adequately informed of the reasons for the delay by the client in filing the Answering Affidavit in time. The reason for the late briefing was due to the Respondent's confusion about the date of the hearing. The Respondent thought the hearing was only the following week.

9. The fact that the answering affidavit was filed only 3 minutes late was mentioned as a matter of importance. Although the condonation itself cannot be considered by the Tribunal as part of the Application for Postponement, it was submitted that a postponement should be considered in order to allow a Condonation Application to be officially considered.

10. According to the Respondent, the main matter is complex and severe. It would therefore be in the interest of justice to postpone the case in order to consider arguments of both parties on all factual issues.

The Applicant

11. The Applicant indicated that the request for postponement is not justified, in that both the Applicant and the Tribunal had been

ambushed. The Application for Postponement was also not properly before the Tribunal Members.

12. The Applicant referred to the first postponement order, where the Respondent was requested to show earnest in the process, in the light of the seriousness of the charges, which the Respondent seemingly failed to do.

13. The Applicant emphasized the need to finalize matters expeditiously in the interest of justices; and argued that the unavailability of counsel is not adequate reason to grant a postponement according to case law.

CONCLUSION

14. The general principle for granting a postponement in South African civil law is that a party who applies for a postponement applies for an indulgence and must therefore show good cause for the interference with the other party's procedural right to proceed and the general interests of justice in having matters finalized.[2] It lies within the Tribunal's discretion whether or not to grant the indulgence sought. Prejudice to either party must be taken into account.

15. The Tribunal considered all arguments of the parties; and decided to grant the postponement in order to provide the Respondent with the opportunity to explain the 3-minute lateness in the filing of its Answering Affidavit in terms of the Condonation requirements of the Tribunal. The Registrar confirmed that the application for condonation had already been filed with the Tribunal the night

before.

16. The Tribunal does not act on abstract ideas of justice and equity but must act on principle.[3] This principle is, in the case of the Tribunal, that the final judgement in the main matter is not a foregone conclusion. The Tribunal, after hearing the evidence, may reach a verdict in favour of the Respondent or the Applicant.

17.

ORDER

17.1 The matter is postponed sine die;

7.2 In the event that the Tribunal would grant condonation, the normal rules of the Tribunal will follow;

17.3 Should the condonation not be granted; the Tribunal will set down the matter for hearing on a default basis; and

17.4 No order is made as to costs.

Dated at CENTURION on this 14 May 2019.

(Signed)

Dr. MC Peenze

Presiding Tribunal Member

Adv. J Simpson (Tribunal Member) and Ms. D Terblanche (Tribunal Member) concurring.

[1] Regulations made under section 171 of the Act on 31 May 2006 and amended on 30 November 2006

[2] Harms “Civil Procedure in the Supreme Court”, Juta.

[3] See Williamson v Schoon 1997 3 SA 1053 (T), Harms supra.