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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

 Case Number: NCT/95354/2017/75(1)(b)

 

In the matter between:   

                                                                      

ROBERTO MAREE                                                                                        APPLICANT

 

and

 

NISSAN SA (PTY) LTD                                                                                   RESPONDENT

 

IN RE:

 

ROBERTO MAREE                                                                                         APPLICANT

 

and

 

NISSAN SA (PTY) LTD                                                                                    RESPONDENT

                       

Coram:

Mr. A.Potwana  - Presiding Member

Adv. J. Simpson - Tribunal Member                     

Ms. H. Devraj    - Tribunal Member

 

CONDONATION JUDGMENT

 

APPLICANT

 

1.        The Applicant is Roberto Maree an adult major male person. The Applicant is also the Applicant in the main matter.  

 

RESPONDENT

 

2.        The Respondent is Nissan SA (Pty) Ltd a company that is duly registered in terms of the company laws of the Republic of South Africa. The Respondent is also the Respondent in the main matter.  

 

 

TYPE OF APPLICATION

 

3.      In this application the Applicant seeks leave to file a supplementary affidavit.

4.        This application is brought in terms of Rule 34(1)(d) of the Regulations for Matters relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal[1] (“Rule” or “Rules”).

5.        The Respondent has not filed any opposing documents.   

6.        The application is therefore considered as an unopposed application.

 

BACKGROUND

 

7.        According to the Applicant, in June 2016 he bought a new Nissan NP300 (Hereinafter referred to as “the Nissan”). After a month he discovered that the Nissan was badly rusted. After informing the Respondent a certain Kagiso from the Respondent came to inspect the Nissan. Kagiso said the problem was poor workmanship and the Respondent should replace the Nissan. Instead of replacing the Nissan, the Respondent tried to fix it which resulted in a bad cover-up job. The Applicant wants to return the Nissan to the Respondent and get a refund.

8.        The Applicant filed a complaint with the Motor Industry Ombudsman of South Africa (MIOSA) which concluded that the Respondent reserved the right to repair the Nissan. Unhappy with the decision of the MIOSA the Applicant referred his complaint to the National Consumer Commission (Hereinafter referred to as “the Commission”).

9.        In a letter dated 12 September 2017 the Commission informed the Applicant that the Respondent is entitled to repair the Nissan in terms of Section 56(2) of the Consumer Protection Act 68 2008 and recommended that the Applicant returns the Nissan for repairs. The Commission concluded by informing the Applicant that it cannot pursue his complaint and issued a notice of non-referral.

10.     Following the Commission’s letter of non-referral the Applicant approached the Tribunal seeking leave to refer his complaint to the Tribunal. On 30 January 2018 the Tribunal’s Registrar issued a Notice of Complete Filing of the Application. On 27 February 2018 the Tribunal’s Registrar issued a Notice of Set-Down for the hearing of the Applicant’s application for leave to refer on 3 April 2018. On 27 March 2018 the Respondent’s attorneys, Herman de Roubaix Baloyi Swart and Associates Incorporated, filed a notice of intention to oppose the application but did not file an opposing affidavit.

11.      It appears from a document marked “Addendum One” filed by the Applicant together with this application that on 3 April 2018 the hearing was postponed sine die. The reasons for the postponement were that the Respondent’s representative submitted that the Respondent did not receive the documents that were forwarded to the Respondent by the Applicant and the Applicant became aware that he had omitted vital information.

12.       The Applicant seeks leave to file a supplementary affidavit in order to:

 

(1)          Submit the omitted documents;

(2)          Amplify and clarify his case; and

(3)          Have an opportunity to re-submit the application documents and information to the Respondent.

 

13.     On 7 May 2018 the Applicant filed the condonation application together with various annexures in amplification of his complaint.

14.      The Respondent does not oppose the application for condonation.  

 

THE LAW

 

15.          Rule 34 (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.”

 

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

17.          Regarding opposing an application or referral , the relevant Rules provide that -

 

(1)      Rule 13 (1) –

 

“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.”

 

(2)   Rule 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.”

 

(3)   Rule 13(5 )-

 

“Any fact or allegation in the application or referral not specifically denied or admitted in an answering affidavit, will be deemed to have been admitted.”

 

18.      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].

19.      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.

20.      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 on an objective conspectus of all the facts. Factors^[5] that are relevant include but are not limited to:

(a)    the nature of the relief sought;

(b)    the extent and cause of the delay;

(c)     the effect of the delay on the administration of justice and other litigants;

(d)    the reasonableness of the explanation for the delay;

(e)    the importance of the issue to be raised in the intended appeal; and

(f)      the prospects of success – Given that the Respondent opposes the relief sought by the Applicant the prospects of success can be properly determined during the hearing of the application for leave to refer.

 

21.          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).”

 

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

 

CONSIDERATION OF THE CONDONATION APPLICATION

 

23.       The documents that the Applicant wants to serve on the Respondent and submit to the Tribunal are important for the administration of justice.

24.       The Applicant’s numerous efforts in pursuing this matter show that this matter is very important to the Applicant. The issues raised by the Applicant are serious to both parties.

25.       The relief that the Applicant seeks is provided for under the CPA.

26.       In evaluating the application; the Tribunal took into account the above and finds that the Applicant has shown good cause for the Tribunal to permit a departure from the Tribunal’s normal rules of procedure and grant the Applicant leave to file a supplementary affidavit.   

 

ORDER

 

27.         The Tribunal accordingly makes the following order -

 

(1)   The Applicant is granted leave to serve the application documents and the supplementary affidavit to the Respondent and file the same with the Tribunal within 10 business days of the issuing of this judgement;

(2)   Upon service of the documents mentioned in (1) above, the Tribunal’s normal rules of procedure will apply; and

(3)      There is no order made as to costs.

 

DATED and handed down in Centurion this 01 August 2018.

 

 

_

Mr. A.Potwana

Tribunal Member

 

Adv. J Simpson (Tribunal Member) and Ms H Devraj (Tribunal Member) concurring.

 

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