National Credit Regulator v Shoprite Investments Limited and Others (32946/2015/140(1)NCA) [2016] ZANCT 58 (19 December 2016)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION

Case number: 32946/2015/140(1)- NCA Rule 15(1)

In the matter between:

National Credit Regulator

Applicant

and

Shoprite Investments Limited

1st Respondent

Shoprite Insurance Company Limited

2nd Respondent

Tribunal panel

Adv. J. Simpson (Presiding member)

Ms. D Terblanche (Member)

Mr. FK Sibanda (Member)

Date of hearing – 9 November 2016

JUDGMENT AND REASONS

[1] The Applicant is the National Credit Regulator (“NCR” or the “Regulator”), a juristic person established in terms of Section 12 of the National Credit Act, Act 34 of 2005 (“the Act”), with its physical address at 127 15th Road, Randjespark, Midrand, in the Gauteng Province.

[2] The 1st Respondent is Shoprite Investments Limited and the 2nd Respondent is Shoprite Insurance Company Limited (hereinafter “Shoprite Investments”, “Shoprite Insurance”

or “Shoprite” or “Respondents” respectively).

[3] This current application is brought by the Regulator in terms of Rule 15(1) of the Rules[1] to amend or supplement its’ founding affidavit filed in support of its Rule 32 application (the main referral) dated 12 October 2015.

[4] For ease of reference the parties are referred to in this application as they are in the main application.

[5] The Applicant brought the current application for the Tribunal to rule on whether it may supplement the founding affidavit.

[6] The referral to the Tribunal is in relation to a number of complaints and alleged contraventions of the reckless credit and the costs of credit provisions of the Act by the Respondents.

[7] Applicant made this application after its receipt of the Respondents’ answering affidavits to the main referral.

[8] In terms of the amendment application the Applicant wishes to supplement its founding affidavit to state the facts surrounding the -

a. Initiation of its complaint against the First Respondent as contemplated by section 136(2) of the NCA, and

b. Scope of the investigation of the complaints against the First Respondent.

[9] Applicant claims it left these factual statements out due to an oversight. Applicant further avers that the amendment, if granted, will not cause any prejudice to the Respondents.

[10] The Respondents object to the Tribunal granting the amendments on the grounds that -

a. An affidavit, being a sworn statement under oath, cannot be amended;

b. The reason for not having included the sections of texts the Applicant seeks to introduce i.e. “due to an oversight” is firstly inadequate and secondly not properly substantiated; and

c. Several of the allegations sought to be introduced via the amendments are overly vague or unspecific and / or unsubstantiated by the detail required by the circumstances.

[2] Rule 15 of the Rules provides as follows:

“(1) An Applicant or a Respondent may any time prior to the conclusion of a hearing of the matter, apply by way of form TI.r15 for an order authorising an amendment of documents filed in connection with the proceedings (our emphasis), save that where all parties to the proceedings consent in writing to the proposed amendment, such amendment may be effected by merely delivering the amended documents to the Tribunal and the parties.

(2) A party affected by the amendment may respond within a time allowed by the Tribunal.”

[3] Firstly, we will consider the scope of the amendment allowed, based on the interpretation of the plain language of the rule mindful of the fact that the Respondents’ counsel argued that “…an affidavit, being a sworn statement under oath, cannot be amended”. Various authorities were cited and exhaustive arguments put forward to support this assertion.

[4] The Tribunal was invited by Respondent’s Counsel to consider Loungefoam (Pty) Ltd and others vs The Competition Commission of South Africa and others CAC Case number 102/CAC/June 10, in support of their argument. On studying this judgment it became apparent to the Tribunal that though there are many similarities in the legislation that established and regulates the credit and competition regulatory authorities and institutions there are also telling differences. One of these differences is in fact contained in the provisions regarding amendments. Whereas the Competition

regulations in Rule 18(1) circumscribe amendments in terms of Rule 18(1) and limit them to amendments of the Form CT1(1), there is no such limitation in Rule 15(1) of the Rules of Proceedings of Matters before the National Consumer Tribunal. On the plain reading of Rule 15 that the Tribunal may issue “…an order authorising an amendment of documents filed in connection with the proceedings…”.

[5] The next question is then whether this difference in the wording of the rules of the Competition Tribunal and the National Consumer Tribunal respectively overcomes the objection of the Respondents to Applicant’s Founding Affidavit being amended.

[6] In deciding this we considered the effect of the amending texts on the founding affidavit. In comparing the proposed texts to the original texts the amendments sought in this application seem to amount to an amplification or supplementation of the Applicant’s founding affidavit. It does not appear to contradict the contents of the affidavit sought to be amended. In fact the same effect could have been achieved by the Applicant filing an application with the Tribunal to file a supplementary affidavit.

[7] In the matter of Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 279C Schreiner JA said the following (and granted an amendment):

“There is no introduction of a fresh cause of action but only a clarification of a step in the proceedings which it is assumed has insufficiently or imperfectly set out the one cause of action that throughout has been relied upon.”

[8] With regard to the objection that the reason for the amendment is not sufficient and without basis: In this regard Respondent’s

counsel referred to and quoted from the case of Euroshipping Corporation of Monrovia vs Minister of Agriculture and others 1979(2) SA 1072 (C) 1080 - 1087 “…the applicant for an amendment is, however, required to furnish an explanation for seeking the amendment and to satisfy the court that the original omission from the pleadings were not mala fide”. The Tribunal does not agree that it is highly unlikely that the explanation, namely the alleged oversight to include the facts it now seeks to include in its founding affidavit, is mala fide. That much is clear from the timing of the amendment sought after receipt of the Respondents’ answering affidavits and the gaps in the factual allegations being pointed out to Applicant.

[9] It does not however leave the Respondents without recourse and remedy.

[10] It is uncontroverted that there are strict constraints within which the Tribunal may order costs within the ambit of the Act. The Tribunal is mindful that it cannot order costs to offset financial prejuduce caused by an amendment. That the Tribunal cannot do that can however never mean the legislature would engage in an exercise of futility of empowering the Tribunal to authorise an amendment knowing it cannot order costs. In the view of the Tribunal it would be consistent with the reading of the Act, Rules and Regulations to allow the opposing parties time, instead of costs, to file further answers to the supplemented founding affidavit.

[11] The Tribunal is of the view that the amendments sought are not overly vague, unspecific or unsubstantiated.

[12] The factual assertions made in the affidavit, if the amendments are authorised by the Tribunal, will in due course be subjected to arguments or opposing evidence and be measured by the standard of proof required in terms of the Act.

[13] Furthermore any material disputes of fact and of the documents and their contents are best left to be determined at the hearing of the matter, when all the parties will be able to fully ventilate all the disputes between them, with witnesses in support of their respective versions if so required.

[14] The learned writer Herbstein & Van Winsen in Civil Practice of the High Court 5th Edition at page 683 writes as follows on the aspect of excipiability of the amendment:

“An amendment should be refused on the ground of excipiability only if it is clear that the amended pleading will (not may) be excipiable (see Krische v Road Accident Fund 2004 (4) SA 358 (W). If the excipiability of the pleading is merely arguable or can be cured by the furnishing of particulars then it is proper to grant the amendment where the other considerations are favourable. It will be left to the aggrieved party to file exception if he so wishes.”

ORDER:

[15] The Tribunal accordingly makes the following order:

a. The amended documents as filed by the NCR are hereby regarded as part of the pleadings

b. Permitting the Respondent to file a further answering affidavit on the Applicant’s amended documents within fifteen (15) days of date of issue of this order; and

c. No order as to costs.

Dated at Johannesburg this 19th day of December 2016.

[signed]

Ms. D Terblanche

Member

CONCURRING:

Adv. J. Simpson (Presiding Member) and Mr FK Sibanda (Member)

[1] Regulations for Matters relating to the functions of the Tribunal and Rules for the Conduct of Matters before the Tribunal, GN 789 in GG 33205 of 28 August 2007 as amended