First National Bank, (A division of FirstRand Bank Limited) v Naidoo (NCT/99995/2018/148) [2018] ZANCT 44 (11 May 2018)

First National Bank, (A division of FirstRand Bank Limited) v Naidoo (NCT/99995/2018/148) [2018] ZANCT 44 (11 May 2018)

The Tribunal held that the powers of a single member are limited by the National Credit Act and the Tribunal Rules. Once a condonation order is made, the member is functus officio and no other single member may vary, recall, or condone non-compliance with that order. The Tribunal Rules do not provide for condonation of non-compliance with a Tribunal order, only with the Rules themselves. The second condonation order was therefore made without jurisdiction and is set aside. However, the respondent, as a lay person, acted on advice from Tribunal staff and should not be prejudiced for procedural confusion caused by administrative actions. The Tribunal directed that the respondent's...

Citation
[2018] ZANCT 44
Parties
Appellant: First National Bank (A division of FirstRand Bank Limited); Respondent: Ray O’Neil Naidoo
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
11 May 2018
Case Number
NCT/99995/2018/148
Procedural Posture
Civil Appeal / Appeal Against Second Condonation Order Before Tribunal Panel
Outcome
Appeal upheld; second condonation order set aside and dismissed.
Judges
Fati Manamela, Penelope Beck-Paxton, Maleho Nkomo
Legal Topics
Condonation, Functus Officio, Reckless Lending, National Credit Act, Tribunal Rules
Civil Procedure Banking and Finance Condonation Functus Officio Reckless Lending National Credit Act Tribunal Rules

Case Brief

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Parties

First National Bank (A division of FirstRand Bank Limited)

Appellant

Ray O’Neil Naidoo

Respondent

Procedural Posture

Civil Appeal / Appeal Against Second Condonation Order Before Tribunal Panel

Legal Issues

  1. 1 Whether a single Tribunal member may reconsider or vary a prior condonation order issued by another member.
  2. 2 Whether the second condonation application was competent in terms of the National Credit Act and Tribunal Rules.
  3. 3 Whether the respondent's failure to comply with the timeframe in the first condonation order could be condoned by a second order.

Ratio Decidendi

The Tribunal held that the powers of a single member are limited by the National Credit Act and the Tribunal Rules. Once a condonation order is made, the member is functus officio and no other single member may vary, recall, or condone non-compliance with that order. The Tribunal Rules do not provide for condonation of non-compliance with a Tribunal order, only with the Rules themselves. The second condonation order was therefore made without jurisdiction and is set aside. However, the respondent, as a lay person, acted on advice from Tribunal staff and should not be prejudiced for procedural confusion caused by administrative actions. The Tribunal directed that the respondent's...

Court Disposition

Appeal upheld; second condonation order set aside and dismissed.

Orders

  • The second condonation order made by Dr Peenze is set aside and dismissed.
  • The Registrar must issue a notice to the parties giving the respondent (appellant in this matter) an opportunity to file an answering affidavit to the application for leave to refer, and affording the applicant the opportunity to reply in terms of the Rules.