SA Taxi Securitisation (Pty) Ltd v National Credit Regulator (NCT/31877/2015/56(1)) [2017] ZANCT 51 (13 January 2017)

IN THE NATIONAL

CONSUMER TRIBUNAL

HELD

IN CENTURION

Case Number: NCT/31877/2015/56(1)

In the matter between:

SA TAXI SECURITISATION (PTY) LTD

APPLICANT

and

THE

NATIONAL CREDIT REGULATOR

RESPONDENT

Coram:

Adv HFN Sephoti -

Presiding Member

APPLICATION FOR CONDONATION FOR NON-COMPLIANCE WITH TRIBUNAL RULES

APPLICANT

1. The Applicant is SA taxi Securitisation (Pty) Ltd , a public company duly registered and incorporated in terms of the Company Laws of the Republic of South Africa and having its principal place of business in Johannesburg, Gauteng (hereinafter referred as the Applicant)

2. The Applicant is represented by Ms Marie-Lou Bester, a Director with the law firm MLB Incorporated, operating from 109 Westwold Way, Saxonworld in Johannesburg.

3. The Applicant filed a Form T.I r34 in support of a condonation application in terms of Rule 34 of the Rules of the Tribunal[1].

RESPONDENT

4. The Respondent is the National Credit Regulator (“ the NCR”); an organ of state within the public administration established in terms of Section 12 of the National Credit Act 34 of 2005 (“the NCA”). The NCR has its address at 127 Fifteenth Road, Randjespark, Midrand, (“hereinafter referred to as the Respondent”).

5. The application for condonation has not been opposed by the Respondent. .

APPLICATION

TYPE

6. This is an application in terms of Rule 34 of the Rules of the Tribunal, for condoning the non-compliance with the Tribunal’s rules and proceedings.

7. The Applicant states that the non-compliance stems from a number of factors, including but not limited to: (a) repeated requests for notice of complete filing from the National Consumer Tribunal (“the NCT”) following the filing of a notice of objection in terms of section 56 of the National Credit Act (“the NCA”) to the Respondent’s compliance notice; (b) receipt of the Respondent’s answering affidavit on 07 December 2015, some two and a half months after the Applicant’s objection, with only 3a couple of days to spare before Respondent’s legal representatives offices closed for the holidays.

8. This Application was made within 03 days of receipt of the Respondent’s answering affidavit and the Applicant proceeded to set out reasons for the Tribunal to consider in making a condonation determination.

9. The Applicant is seeking an extension of time to for the delivery of its answering affidavit.

BRIEF

BACKGROUND OF THE COMPLAINT

10. On 22 September 2015, at 12:51 pm the Applicant’s objection in terms of section 56 of the NCA to the Respondent’s compliance notice was served on the Respondent and filed with the Registrar of the NCT;

11. On 22 September 2015 at 4:59 pm, the Applicant’s attorney of record, Ms Bester, sent an email to the NCT on email address

registry@thenct.org.za attaching proof of the required payment in an amount of R 1000,00 and proof was again sent on 06 October 2016;

12. Applicant’s filing notice (form TI.r30A) was served on the Respondent on 08 October 2016;

13. Several engagement were had with the NCT, with Ms Bester repeatedly requesting notice of complete filing until same was issued on 16 November 2016;

14. On 07 December 2015, Respondent served its answering affidavit on MLB offices, two and a half months after the Applicant’s objection in terms of section 56 of the NCA to the Respondent’s compliance notice which notice was dated 2 September 2015;

15. In terms of Rule 14(1) the Applicant is required to file its replying affidavit on or before 22 December 2015;

16. Ms Bester’s offices were closing on 18 December and would reopen on 4 January 2016, during which period she would have been out of the country;

17. Counsel on brief on the matter, had at that time, also closed for the December holidays and would only return to work on the 11 January 2016;

18. The Chief Executive Officer and the deponent to the applicant’s founding affidavit, Mr Terry Kier, left for December vacation already on the 09th December 2015 and would only be returning on the 11th January 2016;

19. Respondent in their answering affidavit refer to correspondence exchanged between one Anita Eksteen of CTU and Messrs Bradley Shiras, Clyde Trope and Rajen Govender all of whom are necessary witnesses for the Applicant;

20. Mr Shiras had since left South Africa and is residing in England and would need to be contacted; Mr Trope was no longer in the employ of the Applicant but Applicant has been reliably informed by his new employer that he was already on leave for the December holidays and Mr Govender who also left the employment of the Applicant, had not been traced and attempts were being made to locate him.

21. With all of the above said, the Applicant would, despite its best efforts, not be in a position to deliver its replying affidavit by 22 December 2015 and therefore sought an indulgence form the Tribunal to deliver its replying affidavit no later than 22 January 2016.

22. The Applicant had discussions with the Respondent’s legal representatives and further addressed a letter to them detailing the above before filing their application for condonation.

APPLICABLE

RULES OF THE TRIBUNAL

23. Rule 34

“Condonation of late filing and non-compliance with rules

“(1) A party may apply to the Tribunal in Form TI.r34 for an order to:

(a) condone the 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.

(2) The Tribunal may grant the order on good cause shown.”

THE

HEARING

24. The hearing date for the main matter depends on the outcome of this application, and in this instance, indeterminable.

LEGAL

PRINCIPLES

25. The Rules provide the Tribunal with a discretion to grant condonation on “good cause shown”.

26. The discretion to condone non-compliance with the Tribunal’s rules on the basis of “good cause” has been dealt with in numerous court decisions. In Mofokeng v Attorney General,[2] for example, the court had to consider the meaning of “good cause” in Rule 94(1) of the Rules of Court and held that this meant substantially the same as “sufficient cause” in Rule 12 of the Appellate Division.

27. This issue was dealt with by the Appellate Division (now the Supreme Court of Appeal) in the case of Melane v Santam Insurance Company Limited.[3] In this case the court stated the following:

“The approach is that the Court has 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. 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 15 ILJ 610 (LAC) at 613E.

28. From this judgment it can be seen that the Tribunal must consider the facts of this particular matter; it must act fairly to both parties and it must take a number of factors into consideration including inter alia the degree of lateness, the explanation therefor and the prospects of success regarding the merits of the matter.[4]

The court held that these factors are interrelated and should not be considered separately.[5]

29. The Rules do not circumscribe the Tribunal’s discretion and therefore as with the courts, the Tribunal has a wide discretion in these matters. The onus is on the Applicant to show good cause and that it is entitled to condonation.[6]

FACTORS

TO BE CONSIDERED BY THE TRIBUNAL

30. In Cairns’ Executors v Gaarn[7] the court stated that it is impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the

granting of indulgence and that any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely

made very extensive. The court held that it is highly desirable not to abridge the court’s discretion. The applicant for condonation must show something which entitles him to ask for the indulgence of the court and what that something is, depends on the circumstances of each particular application.

31. For the purposes of this judgment the Tribunal has considered the following factors:

20.1 The degree of lateness;

20.2 The explanation therefor; and

20.3 The prospects of success of the Respondent’s defence.

The degree of lateness and explanation therefor

32. The courts do not usually grant condonation unless they are satisfied that the applicant has shown that the degree of lateness or

non-compliance with the prescribed time frame is not excessive and that the applicant has provided an explanation for every aspect of the period of the lateness or the failure to comply with time frames. It was held in Saloojee & Another NNO v Minister of Community Development[8] that an excessive delay would require an extraordinarily good explanation.

33. In Independent Municipal & Allied Trade Union obo Zungu v SA Local Government Bargaining Council & Other,[9] the court held that in explaining the reason for delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one.

34. The court in General Accident Insurance Co SA Ltd v Zampelli[10] held that the “circumstances or ‘cause’ must be such that a valid and justifiable reason exists why compliance did not occur and why non-compliance can be condoned”. In Standard General Insurance Co Ltd v Eversafe (Pty) Ltd[11]the court stated that:

“It is well established that an applicant for any relief in terms of Rule 27 has the burden of actually proving, as opposed to merely alleging, the good cause that is stated in Rule 27(1) as a jurisdictional prerequisite to the exercise of the court’s discretion: Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352G. The applicant for any such relief must, at least, furnish an explanation of his default sufficiently full to enable the Court to understand how it really came about and to assess his conduct and motives (Silber v Ozen Wholesalers (supra at 353A). Where there has been a long delay, the Court should require the party in default to satisfy the Court that the relief sought should be granted: Gool v Policansky 1939 CPD 386 at 390.

35. The period between 7 December and 10 December 2015, when the answering affidavit was served on the Applicant and when the Applicant addressed the matter listing all the factors mentioned above why they would not be in a position to file their replying affidavit is a very short time clearly indicating that the Applicant had not wasted any time after receipt of the answering affidavit to address the matter. Besides this period, it was the Applicant who persisted with emails and telephone calls to the NCT trying to get the notice of complete filing. The Applicant had all times, followed up and took pains to ensure compliance to rules and processes of the NCT and ensured that their matter was being addressed.

36. It is unfortunate that at the time of the filing of the answering affidavit, all of Applicant’s witnesses were not available and so was their Counsel.

37. The Applicant launched their application on 10 December 2015, three (03) days after receipt of the answering affidavit to this Tribunal asking for condonation for non-compliance with the Tribunal Rules.

Prospects of Success

38. In the Melane-case the court stated that even if a good explanation for the delay is provided, an application for condonation should be refused in circumstances where there are no prospects of success.[12]

39. It is also important to note that when dealing with prospects of success it is necessary for the Tribunal to consider the merits of the matter.

40. In Penrice v Dickinson,[13] for example, the Appellate Division held that in an application for condonation, the merits of the appeal may in some cases be an important factor and that if there is sufficient information before the court to enable it to decide whether the appeal has or has not a reasonable prospect of success, it had to decide the question because if the appeal is hopeless, the “great expense of prosecuting it would be a mere waste of money”. This view was reiterated in the Melane- matter where the court stated that “if there are no prospects of success there would be no point in granting condonation”.

Requests for Notice of Complete Filing

41. Since Applicant filed its objection in terms of section 56 of the NCA, no less than eight (8 )contact sessions (either by mail or telephonic conversations) was initiated with the staff of the NCT requesting or reminding them of the notice of complete filing.

42. It was only on 16 November that Applicant received notice of complete filing which was dated 29 October 2015.

43. This was after Applicant had on 29 October sent an email to staff of the NCT attaching completed and signed TI.r35 form together with proof of payment to the amount of R1 000.00.

44. The Applicant did not waste any time in lodging the application for condonation, detailing reasons why it was not possible to comply with the rules of the NCT.

45. Given the importance and seriousness of the matter, it is in the best interest of justice that the full facts regarding the matter be placed before the Tribunal. The Applicant filed an objection to the Respondent’s notice of compliance and it is only fair that all the facts be put before the Tribunal to determine this matter as the Applicant is convinced that they have a bona fide defence.

ORDER

46. The Tribunal, having considered all the documents filed of record, and all the factors relevant to the determination of this application, makes the following ruling:

a. Condonation is granted to the Applicant for the late filing of the replying affidavit;

b. No order is made as to costs.

Dated and signed on this 13th Day of January 2017

[signed]

________

Adv HFN Sephoti

Presiding Member

[1] For the Conduct of Matters before the National Consumer Tribunal published under GN789 in GG30225 of 28 August 2007 as amended by GenN428 in GG34405 OF 29 June 2011.

[2]OFS 1958 (4) SA (O).

[3] 1962 (4) SA 531 (A) at 532C-F.

[4] See Mbutuma v Xhosa Development Corporation Ltd, 1978 1 SA 681 (A)where the Appellate Division held that condonation could be granted under the Rules of the Appellate Division if the applicant satisfied the Court that sufficient cause had been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause had been shown, the Court would consider all the relevant facts and circumstances of the particular case, such as the degree of non-compliance with the Rules, for example, the length of the delay, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice. In Nedcor Investment Bank Ltd v Visser NO 2002 (4) SA 588 (T) at 591 Patel AJ (as he then was) referred to rule 27(3) which requires ‘good cause’ to be shown by the plaintiff and stated that the Court has a wide discretion. See also C Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) at 216H-217A.

[5] Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A) at 532C-F.

[6] See for example Cairns’ Executors v Gaarn1912 AD 181.

[7] 1912 AD 181 at 186.

[8] 1965 (2) SA 135 (A) 141 B-H.

[9] (2010)31 ILJ 1314(LC)para 13.

[10] 1988 (4) SA 407(C) at 410I-J.

[11] 2002 (3) SA 87 (W) at 93. See also Sanford v Haley NO 2004 (3) SA 296 © at 302. Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) [2002] 4 B All SA at [6].

[12] See alsoImmelman v Loubser and Another 1974 (3) SA 816 (A) where the court, in dealing with the failure to note an appeal timeously, stated that a reasonable prospect of success on appeal is also an important consideration.

[13] 1945 AD 6