South Africa Order

National Consumer Tribunal

Ralph v Auto C Motorworx CC (NCT/109285/2018/75(1)(b)) [2018] ZANCT 77 (4 September 2018)

Civil Procedure Default Order Condonation Application Postponement Service of Documents

Citation: [2018] ZANCT 77
Status: Order
Jurisdiction: South Africa
Court: National Consumer Tribunal
Panel: H Devraj
Case number: NCT/109285/2018/75(1)(b)

More details

Court: National Consumer Tribunal
Panel: H Devraj
Case number: NCT/109285/2018/75(1)(b)

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Professional case brief

Research organized from the available case record

Source document

Holding and result

The Tribunal determined that the interests of justice would be best served by allowing the Respondent an opportunity to regularize its position through a condonation application for the late filing of its answering affidavit and to ensure proper service on the Applicant. The Tribunal found that both parties should be heard before a default order is considered, and that the Respondent's procedural error did not warrant immediate default judgment. The postponement was granted with a clear deadline for the condonation application, failing which the matter would proceed on a default basis.

Court disposition

The matter is postponed to allow the Respondent to file and serve a condonation application for the late filing of its answering affidavit. If the Respondent fails to comply by the specified date, the matter will proceed on a default basis.

Orders

The matter is postponed for the Respondent to file and serve a condonation application for the late filing of its answering affidavit by no later than 7 September 2018.
Should the Respondent fail to file and serve the condonation application by 7 September 2018, the matter will be set down again on a default basis.
No order as to costs.

Material facts

Parties

Thomas Ralph

Applicant

Auto C Motorworx CC

Respondent

Procedural history

Posture

Postponement Application / Preliminary Hearing; Postponement Order Issued

Questions and positions

Legal issues

01
Whether the Respondent should be granted a postponement to file a condonation application for the late filing of its answering affidavit.
02
Whether the Respondent's failure to serve the answering affidavit on the Applicant warrants a postponement.
03
Whether the interests of justice require both parties to be heard before a default order is made.

Party arguments

Applicant: The Applicant did not oppose the Respondent's request for postponement and made no substantive submissions against the postponement.
Respondent: The Respondent appeared at the hearing and requested a postponement, arguing that although an answering affidavit was filed with the Tribunal, it was not served on the Applicant due to lack of awareness of the requirement. The Respondent sought time to file a condonation application for the late filing and to properly serve the affidavit.

Court’s reasoning

Legal principles

01
Rule 25(3) of the Tribunal Rules

The Tribunal may make a default order after considering necessary evidence and if satisfied that application documents were adequately served.

Ratio, limits and disposition

Ratio decidendi

The Tribunal determined that the interests of justice would be best served by allowing the Respondent an opportunity to regularize its position through a condonation application for the late filing of its answering affidavit and to ensure proper service on the Applicant. The Tribunal found that both parties should be heard before a default order is considered, and that the Respondent's procedural error did not warrant immediate default judgment. The postponement was granted with a clear deadline for the condonation application, failing which the matter would proceed on a default basis.

Obiter and limits

The Tribunal emphasized the importance of procedural fairness and the need for both parties to be heard before a default order is made.
No order as to costs was made, reflecting the preliminary nature of the proceedings.

Court disposition

The matter is postponed for the Respondent to file and serve a condonation application for the late filing of its answering affidavit by no later than 7 September 2018.
Should the Respondent fail to file and serve the condonation application by 7 September 2018, the matter will be set down again on a default basis.
No order as to costs.

Source and reliance status

National Consumer Tribunal

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Judgment text

The complete available source text.

Source document

National Consumer Tribunal

Order

[2018] ZANCT 77

IN THE NATIONAL

CONSUMER TRIBUNAL

HELD IN

CENTURION

Case number: NCT/109285/2018/75(1)(b)

In the matter between:

THOMAS

RALPH

APPLICANT

and

AUTO

C MOTORWORX

RESPONDENT

Coram:

Ms. H Devraj -

Presiding Member

Date of Hearing – 27 August 2018

POSTPONEMENT

ORDER

1. The Applicant in the main matter is Thomas Ralph, an adult male, hereinafter referred to as (“the Applicant”).

2. The Respondent in the main matter is Auto c Motorworx CC, hereinafter referred to as (the “Respondent”). Its registered

business address is 178 Pruimbos Avenue, Weltevreden Park, Extension 24, Roodepoort.

3. The matter was set down on 28 August 2018, on a default basis. According to Rule 25(3):-

The Tribunal may make a default order-

(a) after it has considered or heard any necessary evidence; and

(b) if it is satisfied that the application documents were adequately served.

4. The Respondent made an appearance at the hearing and requested a postponement. The Respondent argued that he has filed an answering

affidavit on the Tribunal but was not aware that he needed to serve the document on the Applicant. He requested a postponement in order to file a condonation application for the late filing of the answering affidavit and to serve the answering affidavit on the Applicant.

5. The Applicant did not oppose the request for postponement.

6. The Tribunal decided that in the interest of justice it would be better to have the full matter before the Tribunal and to have both parties heard.

ORDER

7. The Tribunal made the following order:-

7.1 The matter is postponed for the Respondent to file and serve a condonation application for the late filing of its answering affidavit in terms of the Tribunal Rules. The condonation application must be served and filed no later than 7 September 2018.

7.2 Should the Respondent fail to file and serve the condonation application by 7 September 2018, the matter will be set down again on a default basis.

7.3 There is no order made as to costs.

DATED 4 September 2018

(signed)

Ms. H Devraj

Presiding Member

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rule 25(3) of the Tribunal Rules

Legislation

Legislation referenced in the available case record.

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