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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case Number: NCT/119696/2018/57(1) Rule 34

 

In the matter between:

                                   

CMR GROUP (PTY) LTD                                                                                                     APPLICANT

                                                                                                                                                           

and

 

NATIONAL CREDIT REGULATOR                                                                                      RESPONDENT

 

IN RE:

 

NATIONAL CREDIT REGULATOR                                                                                      APPLICANT

 

and

 

CMR GROUP (PTY) LTD                                                                                                      RESPONDENT                             

Coram:

Ms H Devraj – Presiding member

 

Date received for adjudication: 22 January 2019

Date of this ruling: 22 January 2019

CONDONATION RULING- FOR THE LATE FILING OF AN ANSWERING AFFIDAVIT

 

INTRODUCTION

1.         In this application for condonation:

1.1.     The Applicant, which is the Respondent in the main matter, is CMR Group (Pty) Ltd. The Applicant is a registered credit provider with the National Credit Regulator (NCR); with registration number NCRCP8692;

1.2.   The Respondent, which is the Applicant in the main matter, is the National Credit Regulator, a juristic person established by section 12 of the National Credit Act, 34 of 2005 (the Act); and

1.3.    For ease of reference in this interlocutory application, the Applicant will be referred to as “CMR Group” and the Respondent will be referred to as “the NCR”.

 

BACKGROUND

2.        In the main matter; the NCR seeks an order to declare CMR Group to be in repeated contravention of various sections of the Act and Regulations. The NCR also seeks an order against CMR Group to refund consumers that were overcharged on fees and interest. In the result, the NCR also moved for de-registration of CMR Group and for the imposition of an administrative fine.

3.        In summary, the NCR alleged that CMR Group entered into secured loan agreements under the guise of “pawn and lease agreements”; entered into credit agreements without conducting proper affordability assessments; entered into reckless credit agreements; and overcharged consumers on interest and fees.     

4.        On 7 November 2018, the NCR lodged the application in the main matter before the National Consumer Tribunal.

5.        In terms of Rule 13 of the Tribunal Rules[1], CMR Group was required to file its Answering Affidavit within 15 business days of receiving the application. The NCR served the application on CMR Group, via e-mail on 7 November 2018. CMR Group consented to service via e-mail on 7 November 2018, as contained in e-mail correspondence with the NCR. In light of this, CMR Group was required to file its Answering Affidavit by 28 November 2018.

6.        On 5 December 2018, CMR Group applied for condonation in terms of Rule 34 for the late filing of its Answering Affidavit.

 

ISSUE TO BE DECIDED

7.         The issue I am required to decide is whether the application to condone the late filing of the Answering Affidavit should be granted or not.

 

BRIEF FACTS BY THE RESPONDENT IN THE MAIN MATTER

 

Reasons for the lateness

8.       CMR Group submitted that upon receipt of the notice of filing from the Registrar on 8 November 2018; it consulted with an attorney on 13 November 2018 to oppose the matter. According to CMR Group, it is currently involved in preparing for civil and possible criminal proceedings against one of its former managers; which may be relevant to the allegations made against it by the NCR.

9.        However, CMR Group averred that the allegations against it extend over a long period of time and are serious in nature. Therefore, it would require a period longer than 15 business days to investigate what transpired; to put together supporting documentation and to adequately and completely respond to the allegations.  On 14 December 2018, CMR Group filed and served its Answering Affidavit.

 

Prejudice

10.      CMR Group submitted that the NCR would not be prejudiced if the condonation for the late filing of its Answering Affidavit is granted. According to CMR Group; the NCR took 1 year and 14 months to lodge an application with the Tribunal; and therefore a 2 week delay in the filing of its Answering Affidavit is not an unreasonable request.

 

THE NCR’s OPPOSITION TO THE CONDONATION APPLICATION

11.          The NCR did not oppose the condonation application.

 

LEGAL PRINCIPLES

12.      It is convenient to set out the relevant statutory and regulatory provisions as well as the case law governing the condonation application.

13.         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.”

 

14.          Rule 34 (2) states that the Tribunal may grant the order on good cause shown.

15.          Rule 3(2)(c) provides that:

            “The Tribunal may consider applications related to an adjudication process—

                        (i) to intervene in proceedings in terms of rules 11 and 12;

                        (ii) to amend documents in terms of rule 15;

                        (iii) to change the forum at which a matter will be heard in terms of section 140 (4) or 141                                 (2) (a);

                        (iv) to condone non-compliance with the rules and proceedings of the Tribunal;

                        (v) for an order of substituted service in terms of rule 30;

                        (vi) to grant a default order in terms of rule 25; or

                        (vii) relating to other procedural matters”;

 

16.          Rule 4(2) provides that:

“If an application relates to a matter contemplated in rule 3 (2) (c) that is not specifically provided

for in Table 2, the Applicant must:

 

(a) apply by way of Notice of Motion in Form TI.r4;

(b) append a supporting affidavit setting out the facts on which the application is based;

(c) serve the Notice and affidavit on the Respondent and other parties to the matter; and

(d) file the application documents and proof of service with the Registrar.”

 

17.         Rule 13 (1) and (2) respectively provide that :

 

“Opposing an application or referral

 

(1) Any Respondent to 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) An answering affidavit to an application or a referral other than an application for interim relief must be served on the parties and filed with the Registrar within 15 business days of receipt by such party of the application.”

 

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 for determining an application of this nature is the interests of justice.

20.      Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of discretion on an objective conspectus of all the facts. Factors that are relevant include but are not limited to the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success.^[5]

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

“In deciding whether sufficient cause has been shown, the basic principle 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 therefor, the prospects of success and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. And the Respondent's interests in finality must not be overlooked

 

22.      The dictum in Melane reveals that these factors are interrelated and should not be considered separately.

 

CONSIDERATION OF THE MERITS

23.       I now turn to the merits of the condonation application.

 

Background

24.      On 7 November 2018; the NCR filed a Section 57 application to amongst others; have CMR Group de-registered. Pleadings closed on 28 November 2018, as the CMR Group had not opposed the matter, within 15 business days of receiving the application.  However, on 5 December 2018, CMR Group filed a Rule 34 application for the late filing of its Answering Affidavit.  It then subsequently filed its Answering Affidavit on 14 December 2018.

 

Lateness

25.      According to Rule 13(2) of the Tribunal Rules, CMR Group should have filed its Answering Affidavit within 15 business days of receiving the application.  The main application was served on CMR on 7 November 2018. Based on the submissions made by CMR Group, it is clear that it was unable to respond to the serious allegations made against it within the 15 day period. The late filing was not excessive.  The Tribunal accepts the explanation provided for the late filing of the Answering Affidavit.

 

Prejudice

26.      In my view, CMR Group will suffer prejudice if it is not provided with an opportunity to respond to the serious allegations against it.

 

Prospects of success and importance of the main matter

27.      This matter is important to CMR Group Trading and the allegations raised are serious. One of the orders sought by the NCR is that of de-registration. This will have dire consequences for CMR Group.

 

CONCLUSION

28.      With regard to the condonation for the late filing of the Answering Affidavit; I am persuaded that it is important that CMR Group be provided with the opportunity to respond to the issues raised by the NCR. It is also in the interests of justice that all the facts are placed before the Tribunal and that the condonation application be granted. This will enable the parties to fully ventilate their respective cases before the Tribunal.

 

ORDER

29.       Accordingly, the Tribunal orders that:

29.1.               The condonation application for the late filing of the Answering Affidavit is granted;

29.2.               The NCR must file its Replying Affidavit within 10 days of receipt of this ruling; and

29.3.               There is no order as to costs.

 

 

Thus handed down; in Centurion; this 22^nd  Day of January 2019.

 

[signed]

H DEVRAJ

PRESIDING MEMBER

 

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