Nivasol CC Trading as Brother Cash Loans v National Credit Regulator (NCT/100942/2018/57(1) Rule 34) [2018] ZANCT 40 (14 June 2018)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/100942/2018/57(1) Rule 34

In the matter between:

NIVASOL CC TRADING AS BROTHER CASH LOANS

APPLICANT

and

NATIONAL CREDIT REGULATOR

RESPONDENT

Coram:

Ms H Devraj - Presiding member

CONDONATION RULING

INTRODUCTION

1. In this application for condonation:

1.1. The Applicant, which is the Respondent in the main matter, is Nivasol CC trading as Brother Cash Loans a registered credit provider whose registration number with the National Credit Regulator (NCR) is NCRCP6684.

1.2. The Respondent, which is the Applicant in the main matter, is the National Credit Regulator, a juristic person established by section 12 of the National Credit Act, 34 of 2005 (the Act).

1.3. The Applicant and the Respondent will be referred to as they appear in the main matter.

BACKGROUND

2. In the main matter; the Applicant seeks an order to declare the Respondent to be in repeated contraventions of various sections of the Act and Regulations. As well as the refund of consumers that were charged fees and charges in excess of the prescribed maximum amounts allowed for in the Act. In the result, the Applicant also moved for de-registration of the Respondent and for the imposition of an administrative fine.

3. The Applicant alleges that the Respondent failed to conduct proper affordability assessments as required by the Act. By failing to conduct a proper affordability assessment, the Applicant in the main matter further alleges that the Respondent therefore granted credit recklessly.

4. Furthermore, the Applicant in the main matter alleges that the Respondent charged consumers excessive fees and charges, failed to utilise the correct credit form of credit agreements and failed to state or set out the costs of credit on advertisements.

5. On 8 January 2018, the Applicant filed the application in the main matter on the National Consumer Tribunal (the Tribunal.)

6. In terms of Rule 13 of the Tribunal Rules, the Respondent in the main matter was required to file its Answering Affidavit within 15 business days of receiving the application. The Applicant in the main matter served the application on the Respondent, via registered mail on 22 December 2017. The case file contains correspondence of a Notice of Complete Filing being issued on 16 February 2018, which indicates that a complete set of documents were filed with the Tribunal on 14 February 2018. The Notice of Complete Filing further stated that the Respondent needed to file its Answering Affidavit within 15 business days of this date.

7. In light of this correspondence, the due date for the filing and serving of the Answering Affidavit would therefore have been 7 March 2018. However, Rule 13 is clear that the Answering Affidavit must be filed within 15 business days of receiving the application and not as per a date determined by the Registrar. In this particular matter, it is not clear when the Respondent in the main matter would have received the complete application.

8. On 7 March 2018, the Respondent in the main matter fried a condonation application for the extension of time for the filing of

its Answering Affidavit. It also requested that condonation be granted for any other departure from the rules or procedures.

ISSUE TO BE DECIDED

9. The issue I am required to decide is whether the application to condone the extension of time for the filing of the Answering

Affidavit should be granted or not.

BRIEF FACTS BY THE RESPONDENT IN THE MAIN MATIER

Reasons for the lateness

10. The Respondent in the main matter submits that counsel was instructed to oppose the main matter on 23 January 2018. However, counsel was unable to meet with the Respondent as the Respondent was on a trip to China and returned to South Africa on 6 March 2018. Counsel could only meet with the Respondent during the week of 12 to 16 March 2018 and therefore required an extension of time for the filing of the Answering Affidavit. The Respondent also submits that communication with counsel has been a challenge as he is not proficient in English and as such requires the assistance of a translator. The Respondent in the main matter submits that the delay was caused merely due to extenuating circumstances.

Prejudice

11. The Respondent in the main matter submits that it is in the interest of justice that he be afforded an opportunity to be heard before the Tribunal in terms of the audi alteram partem rule.

THE APPLICANT'S OPPOSITION TO THE CONDONATION APPLICATION

12. The Applicant in the main matter did not oppose the condonation application.

LEGAL PRINCIPLES

13. It is convenient to set out the relevant statutory and regulatory provisions as well as the case law governing the condonation

application.

14. Rule 34 (1) (b)[1] provides that a "party may apply to the Tribunal in Form Tl r.34 for an order to extend or reduce the time allowed for filing or serving". Rule 34 (2) states that the Tribunal may grant the order on good cause shown.

15. Rule 13 (1) and (2) respectively provide that:

"Opposing an application or referral

(1) Any Respondent to 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.

(2) An answering affidavit to an application or a referral other than an application for interim relief must be served on the parties and filed with the Registrar within 15 business days of receipt by such party of the application."

16. 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].

17. In Head of Department, Department of Education, Limpopo Province v Settlers Agriculture High School and Others[4] it was held that the standard for determining an application of this nature is the interests of justice.

18. Whether it is in the interests 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 the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success.[5]

19. In Melane v Santam Insurance Company Limited[6] it was held that:

"In deciding whether sufficient cause has been shown, the basic principle 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 therefor, the prospects of success and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to

harden the arteries of what should be a flexible discretion. What is needed is

an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. And the Respondent's interests in finality must not be overlooked

20. The dictum in Melane reveals that these factors are interrelated and should not be considered separately.

CONSIDERATION OF THE MERITS

21. I now turn to the merits of the condonation application.

Lateness

22. According to Rule 13(2) of the Tribunal Rules, the Respondent in the main matter should have filed its Answering Affidavit within 15 business days of receiving the application. The main application was filed with the Tribunal on 8 January 2018 and served on the Respondent on 22 December 2017. However, it would appear that a complete set of documents were filed with the Tribunal on 14 February 2018. The Respondent in the main matter has not submitted the date on which it received the main application. However, in this particular matter, the Respondent filed its condonation application to extend the time for the filing of its answering affidavit on 7 March 2018. The Respondent also requested that it be allowed to file its answering affidavit by 7 April 2018 or by a date determined by the Tribunal. Based on the submissions, made by the Respondent, the Tribunal accepts the explanation provided by the Respondent for extending the time period for the filing of the Answering Affidavit. The Respondent also applied for the extension within a reasonable period of time.

23. In my view, the Respondent in the main matter will suffer prejudice if it is not provided with an opportunity to respond to the serious allegations against it.

Prospects of success and importance of the main matter

24. This matter is important to the Respondent in the main matter and the allegations raised are serious. One of the orders sought by the Applicant in the main matter is that of de-registration of the Respondent in the main matter. This will have dire consequences for the Respondent in the main matter.

CONCLUSION

25. For these reasons I am persuaded that it is important that the Respondent in the main matter is provided with the opportunity to respond to the issues raised by the Applicant in the main matter. It is also in the interests of justice that all the facts are before the Tribunal and that the condonation application be granted to enable the parties to fully ventilate their respective cases before the Tribunal.

ORDER

26. Accordingly , the Tribunal orders that:

26.1 The condonation application for the extension of time for the late filing of the Answering Affidavit is granted;

26.2 The Respondent in the main matter must file its Answering Affidavit within 15 business days from the date that this ruling is issued; and

26.3 There is no order as to costs.

Thus handed down; in Centurion; this 14th Day of June 2018

____________________

H DEVRAJ

PRESIDING MEMBER

[1] Regulations for Matters Relating to the Functions or the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal 2007

[2] OxfordEnglish 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.

[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-.E