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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/96399/2017/149(1)

In the matter between:

TSHILIDZI PFARELO SWUHANA                                                                                                 APPLICANT

and

THE NATIONAL CREDIT REGULATOR                                                                                      RESPONDENT

 

Coram

Ms P Beck  - Presiding Member

Dr. MC Peenze – Member

Ms M Nkomo – Member

Date of hearing – 30 January 2018

JUDGMENT AND REASONS

THE PARTIES

1. The Applicant is TSHILIDZI PFARELO SWUHANA, an adult male residing at Stand [...] Thohoyandou Unit C, Limpopo. The Applicant represented himself at the hearing.

2. The Respondent is the NATIONAL CREDIT REGULATOR (“the NCR”); an organ of state and a juristic person 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, (“the Applicant”).  At the hearing, the Respondent was represented by Mr. P. Michaels, as assisted by Ms. A. du Plooy, both employees of the Respondent.

ISSUE TO BE DECIDED

3. The application had been brought in terms of section 149 of the NCA, which section deals with interim relief to complainants. A “Complainant” is defined as a person who has filed a complaint in terms of section 136(1) of the NCA to the National Credit Regulator.

4. The Tribunal must decide whether or not to grant an interim order in respect of a complaint as defined in the NCA, with the intention of providing interim relief that is reasonably necessary to prevent serious, irreparable damage to the Applicant as complainant in terms of the NCA.

5. The relief sought by the Applicant in this application is to provide an interdict preventing the NCR from deregistering the Applicant as a debt counsellor while the Applicant’s appeal against the decision of the NCR is pending before the Tribunal, the latter of which is not the subject matter presently before the Tribunal.

BACKGROUND

6. Matters relating to the jurisdiction of the Tribunal to hear the application for interim relief, as well as the locus standi of the Applicant to bring the application for interim relief were raised by the Respondent during the hearing. These questions relating to jurisdiction and locus standi were not raised in the Answering Affidavit of the Respondent and were raised for the first time during the hearing.

7. The Applicant requested time to consider the Respondent’s legal arguments relating to jurisdiction and locus standi.

8. The parties agreed on the submission of written arguments on the legal questions pertaining to jurisdiction and locus standi.

9. The parties agreed that the matter will thereafter be decided on the papers and that no further appearances before the Tribunal will be necessary to argue the legal questions relating to jurisdiction and locus standi.

10. The Tribunal consequently issued a directive order that –

(a) The Respondent must compile and file a supplementary affidavit, addressing the legal questions pertaining to both jurisdiction and locus standi, before or on 6 February 2018, copied to the Applicant. In the event that the Respondent fails to file a supplementary affidavit, the matter will be considered on the papers filed.

(b) The Applicant may compile and file an answering affidavit before or on 13 February 2018, copied to the Respondent. In the event that the Applicant fails to file an answering affidavit, the matter will be considered on the papers filed.

(c) Judgement will be handed down in due course, based on the papers filed.

11. The Respondent continued to file legal arguments to support its submissions relating to jurisdiction and locus standi, but failed to submit same in the format of a Supplementary Affidavit as directed by the Tribunal. The Applicant continued to file an Answering Affidavit as directed by the Tribunal. However, the Affidavit was based on the submission made by the Respondent when it should have been based on a Supplementary Affidavit.

12. In line with the directive order as issued by the Tribunal, the matter will be considered on the papers filed. Since the Respondent failed to file a Supplementary Affidavit in terms of the directive order, the Tribunal will not consider the document filed by the Respondent, and as a result the reply shall also not be considered.

JURISDICTION

13. Whether parties in a matter before the Tribunal raised the issue of jurisdiction or not, it remains the responsibility of the Tribunal to mero motu ensure that it only entertains matters for which jurisdiction had been assigned in the appropriate legislation, in this particular case the NCA.[1]

14. Jurisdiction to adjudicate on an application for interim relief will be apparent if the requirements for interim relief as laid down in Section 149(1) of the Act are found to exist.[2]

15. Section 149(1) provides as follows:

''At any time, whether or not a hearing has commenced into a complaint, a complainant may apply to the Tribunal for an interim order in respect of that complaint, and the Tribunal may grant such an order if

- (a) there is evidence that the allegations may be true; and (b) if an interim order is reasonably necessary to -

(i) prevent the purpose of this Act from being frustrated;

(ii) the respondent has been given a reasonable opportunity to be heard'

(c) having regard to the urgency of the proceedings; and

(d) the balance of convenience favours the granting of the order."

16. Section 149(1) as quoted above refers to “a complaint” and “a complainant”. It also limits the jurisdiction of the Tribunal to considering “an interim order in respect of that complaint”. In seeking to understand what is meant by “a complaint”, the definitions of the NCA provides clarity by defining “a complainant” as “a person who has filed a complaint in terms of section 136(1) of the Act”. It is trite that “complaint” will have an aligned meaning with similar reference to section 136(1).  It follows therefore that interim relief in terms of section 149(1) only applies and becomes available to a complainant who has filed a complaint in terms of Section 136(1) of the Act.  In fact, a referral in terms of Section 149(1) is conditional upon a complaint having been lodged in terms of Section 136(1) of the NCA.[3]

17. Section 136(1) of the NCA determines as follows:

“Any person may submit a complaint concerning an alleged contravention of this Act or a complaint concerning an allegation of reckless credit to the National Credit Regulator in the prescribed manner and form.”

18. No complaint had been submitted by the Applicant in terms of section 136(1) to the National Credit Regulator, with the implication that the Applicant is not a complainant as defined in the NCA.

19. The powers of the Tribunal to hear applications for interim relief are also set out in the National Consumer Tribunal Regulations 3(2)(a) read with 3(1)(c) thereof, which requires a complaint to have been lodged by the Applicant. Those regulations state as  follows:

"(3)(2) The Tribunal may-

(a)grant interim relief in respect of a matter described in Rule 3(1)(c)."

"(3)(1) The Tribunal may deal with a matter -

(c) originating as a complaint to the Regulator or arising from a complaint, and referred to the Tribunal in terms of s. 137(1), s. 140 or s. 141(1)(b) of the Act"

20. An application for interim relief in terms of Section 149(1), read with Regulations 3(2)(a) and 3(1)(c) must therefore have originated from a complaint to the Respondent. It is clear that the intention of the legislature is that the

 Applicant in an application for interim relief, must have an existing complaint before the Respondent in order to qualify as a complainant

21. Since the Applicant’s relief sought in terms of Section 149(1) in casu does not result from a complaint lodged with the Respondent, the Tribunal does not have the necessary jurisdiction to entertain this matter.

CONCLUSION

22. The Tribunal does not have the jurisdiction to consider the application for interim relief in this matter.

23. Having considered the jurisdiction of the Tribunal in this application, the merits of the matter become irrelevant.

ORDER

24. On the conspectus of the evidence presented regarding the application for urgent relief in terms of section 149 of the NCA, the Tribunal makes the following order:

(a) The application for urgent relief in terms of section 149 of the NCA is dismissed on the basis of no jurisdiction by the Tribunal to adjudicate on the matter.

(b) There is no order as to costs.

DATED AT CENTURION THIS 28^th DAY OF FEBRUARY 2018

 

[signed]

Dr. MC Peenze

Tribunal Member

Ms P Beck (Presiding Member) and Ms M Nkomo (Member), concurring.

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