Voight trading as Cash Loans (Sole Proprietor) v National Credit Regulator In re: National Credit Regulator v Voight trading as Cash Loans (Sole Proprietor) (NCT/129036/2019140(1)NCA) [2019] ZANCT 142 (19 July 2019)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/129036/2019 140(1) NCA – Rule 34

In the matter between:

JOHANN VOIGT trading as

CASH LOANS (SOLE PROPRIETOR)

APPLICANT

And

NATIONAL CREDIT REGULATOR

RESPONDENT

IN RE:

NATIONAL CREDIT REGULATOR

APPLICANT

CASH LOANS (SOLE PROPRIETOR)

RESPONDENT

Coram:

Adv J Simpson

– Presiding member

CONDONATION RULING AND REASONS

APPLICANT

1. The Applicant in this matter is Johann Voigt, a natural person who trades as Cash loans as sole proprietor (Hereinafter referred to as “the Applicant” or “Mr Voigt”). The Applicant

is the Respondent in the main matter.

2. The National Credit Regulator cited the Applicant as “Mr Vogit” in all its pleadings. This is however not the correct spelling of the Applicant’s surname as reflected on the NCR’s own registration documents that it attached. The Applicant’s answering affidavit further confirms the correct spelling as “Voigt”. The spelling of the surname has therefore been corrected on this judgment.

RESPONDENT

3. The Respondent is the National Credit Regulator, a juristic person established by Section 12 of the National Credit Act, 2005 (“the NCA”),(hereinafter referred to as “the Respondent or “the

NCR”). The Respondent in the Applicant in the main matter.

BACKGROUND

4. Mr Voigt was a registered credit provider with registration number NCRCP 4789. The NCR submits that he has failed to pay his annual registration fees and his registration has therefore lapsed. It did an investigation on the Applicant during 2016. Mr Voigt failed to conduct affordability assessments and charged excess interest on credit agreements. It is asking for a fine to be imposed, an independent audit to be done and consumers to be refunded.

5. The main application was served on Mr Voigt’s representative by email on 29 March 2019, with his consent. The Tribunal registrar issued a Notice of filing on 2 April 2019. No answering affidavit was received within the 15 business day period and the Tribunal Registrar set the matter down for hearing on 18 June 2019. On 9 June 2019 the

Applicant filed an application to condone the late filing of the answering affidavit and also filed the answering affidavit itself.

6. Mr Voigt submits that he received the notice of filing from the Registrar on 2 April 2019. It was never his intention to enter into litigation with the NCR as he could not afford it. He was at all times trying to settle the matter with the NCR. Despite his attempts to settle, it appears to him that the NCR is not willing to engage with him. He therefore has no choice but to defend the matter. He submits that no prejudice will be suffered by the late filing and asks that it be condoned. It appears Mr Voigt denies receiving the original application. It appears he only received notice of the

application when he received the Notice of filing from the Tribunal Registrar.

7. Based on Mr Voigt’s responses in his answering affidavit, he appears to admit to a number of the allegations made against him. He however seeks to provide explanations for why the transgressions occurred.

8. The NCR has not opposed the application for condonation.

APPLICABLE SECTIONS OF THE ACT AND CASE LAW

9. Rule 34 (1) [1]states “A party may apply to the Tribunal in Form TI r.34 for an order to:-

(a) condone 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.”

10. Rule 34 (2) states “The Tribunal may grant the order on good cause shown”.

11. Rule 13 (1) states “Any person required by these Rules to be notified of 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.

13(2) An answering affidavit to an application or referral other than an application for interim relief must be served on the parties and filed with the Registrar within 15 business days of the date of the application”.

12. 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].

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

14. Whether it is in the interest of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of a discretion, based on an objective conspectus of all the facts. Factors that are relevant include but are not limited to:

14.1 the nature of the relief sought;

14.2 the extent and cause of the delay;

14.3 the effect of the delay on the administration of justice and other litigants;

14.4 the reasonableness of the explanation for the delay;

14.5 the importance of the issue to be raised in the intended appeal; and

14.6 the prospects of success.[5]

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

“The approach 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 therefore, 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. The courts have traditionally demonstrated their reluctance to penalize a litigant on account of the conduct of his representative but it emphasized that there is a limit beyond which a litigant cannot escape the results of the representative’s lack of diligence or the insufficiency of the information tendered. (Salojee & Another NNO v Minister of Community Development 1965 (2) A 135 (A) 140H-141B; Buthelezi & Others v Eclipse Foundries Ltd 18 ILJ 633 (A) at 6381-639A).”

16. From the dictum in Melane it was held that these factors are interrelated and should not be considered separately.

CONSIDERATION OF THE MERITS

17. The NCR has not opposed the application for condonation. It is therefore not denying that Mr Voigt was trying to settle the matter with the NCR.

18. Mr Voigt does not appear to be resisting the bulk of the charges against him. He appears to be requesting a lower fine at the very least.

19. The delay in filing the answering affidavit is not excessive under the circumstances. The Tribunal accepts that he was trying to settle the matter and avoid litigation.

CONCLUSION

20. The Tribunal finds that there is sufficient cause to grant the application to condone the late filing of the answering affidavit.

ORDER

21. Accordingly, for the reasons set out above, the Tribunal makes the following order:-

21.1 The Application to condone the late filing of the answering affidavit is granted;

21.2 The NCR must therefore file its replying affidavit within 10 business days of this Ruling being issued; and

21.3 No order is made as to costs.

DATED ON THIS 19TH DAY OF JULY 2019

(signed)

Adv J Simpson

Presiding Member

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

Tribunal, 2007

[2] Oxford English 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.

[6] 1962 (4) SA 531 (A) at 532C-F.