THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 707/2022
In the matter between:
THE NATIONAL CREDIT REGULATOR APPELLANT
and
NATIONAL CONSUMER TRIBUNAL FIRST RESPONDENT
ELAVATION TRADING CC t/a
XCELSIOR FINANCIAL SERVICES SECOND RESPONDENT
XCELSIOR FINANCIAL
SERVICES (PTY) LTD THIRD RESPONDENT
Neutral citation: The National Credit Regulator v National Consumer Tribunal
and Others (707/2022) [2023] ZASCA 133 (17 October 2023)
Coram: PONNAN, MBATHA, HUGHES and WEINER JJA and
NHLANGULELA AJA
Heard: 5 September 2023
Delivered: 17 October 2023
2
Summary: Review of National Consumer Tribunal’s (Tribunal) decision granting
condonation for late filing of supplementary founding affidavit – whether Tribunal
had such power.
3
_____________________________________________________________ _____
ORDER
__________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Lukhaimane J
sitting as court of first instance):
The appeal is dismissed.
_____________________________________________________________ _____
JUDGMENT
_____________________________________________________________ _____
Weiner JA (Mbatha JA concurring)
Introduction
[1] This appeal is concerned with whether the first respondent, the National
Consumer Tribunal (the Tribunal) has the power to condone the filing of a
supplementary founding affidavit (the supplementary affidavit) by the appellant, the
National Credit Regulator (the NCR) in proceedings before it. The se proceedings
concerned an application by the NCR to cancel the registration of the second and
third respondents, Elevation Trading CC and Xcelsior Financial Services (Pty) Ltd
as credit providers.
[2] The NCR was established in terms of s 12 of the National Credit Act 34 of
2005 (the Act). The NCR is responsible for promoting and support ing the
development of a fair, transparent, competitive, efficient and easily accessible credit
4
market to serve the needs of historically disadvantaged, and low income persons and
communities, in a manner consistent with the Act.1
[3] The National Consumer Tribunal (the Tribunal) was established in terms of s
26 of the Act. It is an independent adjudicative body, deriving its mandate from the
Act. Its mandate is to hear and decide on cases involving, inter alia, consumers and
credit providers. A decision of the Tribunal has the same status as one made by the
high court.
[4] The second and third respondents are registered credit providers under the
Act. Elevation Trading CC is a close corporation registered under the C lose
Corporation Act 69 of 1984 and Xcelsior Financial Services (Pty) Ltd is a company
registered under the Companies Act 71 of 2008. These respondents shall be referred
to collectively as the respondents.
[5] The Tribunal found t hat it had the power , in terms of the Act and the Rules
for the Conduct of Matters before the National Consumer Tribunal (the rules), to
condone the filing of the supplementary founding affidavit (the supplementary
affidavit) on good cause shown. It granted condonation and permitted the
respondents to file an answering affidavit in response to the supplementary affidavit
1 The preamble to the Act sets out the objectives: ‘To promote a fair and non-discriminatory market place for access
to consumer credit and for that purpose to provide for the general regulation of consumer credit and improved
standards of consumer information; to promote black economic empowerment and ownership within the consumer
credit industry; to prohibit certain unfair credit and credit-marketing practices; to promote responsible credit granting
and use and for that purpose to prohibit reckless credit granting; to provide for debt re organisation in cases of over
indebtedness; to regulate credit information; to provide for registration of credit bureaux, credit providers and debt
counselling services; to establish national norms and standards relating to consumer credit; to promote a consistent
enforcement framework relating to consumer credit; to establish the National Credit Regulator and the National
Consumer Tribunal; to repeal the Usury Act, 1968, and the Credit Agreements Act, 1980; and to provide for related
incidental matters.’
5
within 15 days , and made no order as to costs (the decision). The respondents
brought a review to set aside the Tribunal’s decision, which succeeded in the
Gauteng Division of the High Court, Pretoria (the high court). This appeal is with
the leave of the high court.
Background
[6] Having received complaints from clients of the respondents , that they were
engaged in various contraventions of the Act, the NCR instituted an investigation
against the respondents . The complaints related to the respondents charging
excessive loan initiation charges, failing to conduct affordability assessments,
extending credit recklessly, charging storing fees and insurance illegally, and using
the consumers’ motor vehicles as security for loans granted to its clients.2
[7] Upon conclusion of the investigation, a report was produced h eaded:
‘Investigations into the A ctivities of Xcelsior Financial Services (Pty) Ltd ’ (the
report). Th e NCR referred the matter to the Tribunal and filed an application in
terms of s 57(1) of the Act,3 seeking the cancellation of the respondents’ registration
as a credit provider. The respondents opposed the referral application and filed an
answering affidavit. Thereafter, the NCR filed a replying affidavit .. The matter was
postponed and re-enrolled for hearing on 15 July 2019.
2 The details of the contraventions are not pertinent to the issues in the appeal
3 Section 57(1) of the National Credit Act 34 of 2005 (the Act) states as follows:
‘(1) Subject to subsection (2), a registration in terms of this Act may be cancelled by the Tribunal on request by the
National Credit Regulator, if the registrant repeatedly-
(a) fails to comply with any condition of its registration;
(b) fails to meet a commitment contemplated in section 48(1); or
(c) contravenes this Act.’
6
[8] Shortly prior to the hearing, on 11 July 2019, the NCR delivered the
supplementary affidavit together with an application for condonation. It applied to
the Tribunal for an order to condone a departure from the rules and procedures as
follows:
‘1. Authorising the Applicant to file a supplementary founding affidavit, (which supplementary
founding affidavit is attached hereto);
2. Giving further directions with regard to the delivery of answering and replying affidavits
pertaining to the supplementary founding affidavit;
3. Granting the Applicant leave to amend its Notice of motion Dated 4 July 2018, by the insertion
in the Table in Part D thereof of the following additional rows.’
27. CONTINUOUS Contravention of Section 106(5)(c)
28.
CONTINUOUS Contravention of Section 106 (1)(b)(ii)
29.
CONTINUOUS Contravention of Section 99(1)(b)
(Alternative claim in the event that it is found
that the respondents’ credit agreements
constitute pawn transactions
[9] In seeking this relief, the NCR explained that, in preparing for the hearing of
the matter on 15 July 2019, it realised that there were some minor issues with the
founding affidavit which needed to be addressed . Although it had made the
necessary factual allegations in the founding affidavit regarding infringements of
7
s 106(5)(c)4 and 106(1)(b)(ii),5 alternatively s 99(1)(b)6 of the Act, it had omitted to
ask the Tribunal to declare that they were contraventions of the Act. The NCR sought
to remedy this in the supplementary affidavit. The NCR also wished to supplement
the founding affidavit by providing a more detailed explanation of the conclusion it
had reached in the founding affidavit, that the agreements that the respondents had
concluded with its customers were not ‘pawn transactions ’7 but ‘secured loan
agreements’.8 Such explanation was provided ex abundante cautela , as the NCR
believed that it was a matter for legal argument.
4 Section 106(5)(c) of the Act states that:
‘(5) With respect to any policy of insurance arranged by a credit provider as contemplated in (4), the credit provider
must –
…
(c) explain the terms and conditions of the insurance policy to the consumer and provide the consumer with a copy of
that policy…’
5 Section 106(1)(b)(ii) provides as follows:
‘(1) A credit provider may require a consumer to maintain during the term of their credit agreement –
…
(b) either –
(i)…) …
(ii) in any other case, insurance cover against damage or loss of any property other than property referred to in
subparagraph (i), not exceeding, at any time during the life of the credit agreement, the total of the consumer's
outstanding obligations to the credit provider in terms of their agreement.
6 Section 99. ((1)(b) states:
‘(1) A credit provider who enters into a pawn transaction with a consumer-
…
(b) must retain until the end of the credit agreement, and at the risk of the credit provider, any property of the consumer
that is delivered to the credit provider as security under the credit agreement-. . . .’
7 Definition as set out in section 1 of the Act –
‘“pawn transaction” means an agreement, irrespective of its form, in terms of which –
(a) one party advances money or grants credit to another, and at the time of doing so, takes possession of goods as
security for the money advanced or credit 20 granted; and
(b) either-
(i) the estimated resale value of the goods exceeds the value of the money provided or the credit granted, or
(ii) a charge, fee or interest is imposed in respect of the agreement, or in 25 respect of the amount loaned or the credit
granted; and
(c) the party that advanced the money or granted the credit is entitled on expiry of a defined period to sell the goods
and retain all the proceeds of the sale in settlement of the consumer’s obligations under the agreement;. . .’.
8 Definition as set out in section 1 of the Act –
‘“secured loan” means an agreement, irrespective of its form but not including an instalment agreement, in terms of
which a person –
(a) advances money or grants credit to another, and
(b) retains, or receives a pledge or cession of the title to any movable property or other thing of value as security for
all amounts due under that agreement;…’.
8
The power of the Tribunal to grant condonation for the filing of the
supplementary affidavit?
[10] The NCR argued that it did. The respondents opposed the application on the
basis that, as a creature of statute, the Tribunal did not have the power to allow the
filing of the supplementary affidavit.
[11] The procedures in the rules provide for the NCR to refer the matter to the
Tribunal and file an application in terms of rules 6 9 and 7 10, with the requisite
documents, including the founding affidavit. Rule 1311 provides for an answering
affidavit to be filed, and, a replying affidavit can be filed in terms of rule 14.12
[12] Other procedures open to a party in the Tribunal include rule 15 which
provides for the amendment of documents. It reads:
‘(1) An Applicant or Respondent may at any time prior to the conclusion of the hearing of the
matter, apply by way of Form TI.r15 for an order authorising an amendment of documents filed in
9 Rule 6, which governs notification of parties and service of application documents, provides as follows:
‘(a) The Applicant must not ify the persons mentioned in column g of Table 2 by serving on them the documents
required under column h of that Table.
(b) The application documents filed with the Tribunal must include a proof of service for every person requiring
notification.’
10 Rule 7, which deals with filing an application, states that:
‘(1) Once notification of an application has been served in terms of rule 6, the application must be filed with the
Registrar.
(2) An application is filed by delivery of the relevant Form and all the documents listed in column e of Table 2, if
applicable, or as required elsewhere in these rules, to the Registrar. (5) The filing of an application must comply with
the general rules for delivery of documents in terms of these rules.’
11 Rule 13 (1), headed ‘Opposing an application or referralreferral’, provides that:
(‘(1) Any Respondent to an application or referral to the Tribunal may oppose the application or referral by serving
an answering affidavit Any Respondent to anon-
(a) the Applicant; and
(b) every other person on whom the application or referral to the Tribunalwas served.’
12 Rule 14, dealing with the reply by the applicant provides that:
‘(1) The Applicant may within 10 business days of being served with an answering affidavit, lodge
a replying affidavit to any new issues raised in the answering affidavit, other than a point of law.’
9
connection with the proceedings save that where all parties to the proceedings consent in writing
to a proposed amendment, such amendment may be effected by merely delivering the amended
documents to the Tribunal and to the parties.
(2) A party affected by an amendment may respond within a time allowed by the Tribunal.’
[13] In regard to the powers of condonation, s 150(e) of the Act provides:
‘150. Orders of Tribunal
In addition to its other powers in terms of this Act, the Tribunal may make an appropriate order in
relation to prohibited conduct or required conduct in terms of this Act, or the Consumer Protection
Act, 2008, including –
…
(e) condoning any non-compliance of its rules and procedures on good cause shown. . .’
[14] Rule 3 re-iterates, in part, s 150. It reads:
‘3. Powers of the Tribunal
…
(2) The Tribunal may-
…
(c) consider applications related to an adjudication process-
…
(iv) to condone non-compliance with the rules and proceedings of the Tribunal;
…
(vii) relating to other procedural matters.’
[15] Rule 3 deals with the powers of the Tribunal and gives effect to the provisions
of s 145 of the Act, which provides for the Rules of procedure. It reads:
‘Subject to the rules of procedure of the Tribunal, the member of the Tribunal
presiding at a hearing may determine any matter of procedure for that hearing, with due regard to
the circumstances of the case and the requirements of the applicable sections of this Act.’
10
[16] Rule 34, in material parts, provides as follows:
‘34 (1) A party may apply to the tribunal in form TI r.34 for an order to:
…
(d) condone any other departure from the rules or procedures.
(2) The Tribunal may grant the order on good cause shown.’
[17] The Tribunal regarded the filing of the supplementary affidavit as a departure
from the its rules and procedures. It decided that it had therefore the power to grant
the application in terms rule 34(1)(d), read with rule 3(2)(c)(iv) and (vii). It granted
condonation, finding, in addition, that good cause had been shown.
[18] The respondents launched review proceedings in the high court to set aside
the Tribunal’s decision, submitting that the Tribunal did not have the power to grant
the order that it did and, in any event, good cause was not shown for condonation to
be granted.
[19] The high court held that the filing of the supplementary affidavit was, in terms
of rule 34(1)(d), a departure from the rules and procedures of the Tribunal and that
‘the only circumstance under which such action can be condoned is upon good cause
shown.’ But it found that because of the lack of a detailed explanation relating to the
delay, good cause had not been shown. It set aside the decision of the Tribunal and
remitted it back to the Tribunal to decide whether or not to grant condonation to the
NCR for the filing of the supplementary affidavit. Quite what that process would
entail, is difficult to comprehend.
11
[20] In this Court , there wa s no appearance on the respondents ’ behalf at the
hearing. It had, however, filed heads of argument in which it again submitted that
the Tribunal, as a creature of statute , cannot determi ne its own procedures. It
contended that the filing of a supplementary affidavit is not provided for under rule
34, and was not merely ‘a departure from the rules or procedures’, but a process
involving the inclusion of additional evidence. It is therefore not covered by rule 3,
but rather by rule 10, which provides that for matters not listed in rule 3, or otherwise
provided for in the rules, an application to the high court for a declaratory order was
required.13
Analysis
[21] In Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others
(Lewis),14 this Court held that t he Act provides for an ‘expeditious, informal and
cost-effective complaints procedure’. Part D of chapter 7 of the Act relates to the
consideration by the Tribunal of ‘complaints, applications and referrals’. Section 142
of the Act sets out the powers and obligations of the Tribunal in conducting a
hearing. It states that the Tribunal is required to conduct hearings in public, in an
inquisitorial manner, as expeditiously and informally as possible, and in accordance
with the rules of natural justice.15
13 Rule 10 provides as follows:
‘Applications in respect of matters not provided for in the rules
(1) A person wishing to bring before the Tribunal a matter which is not listed in rule 3, or otherwise provided for in
these rules, must first apply to the High Court for a declaratory order confirming the Tribunal’s jurisdiction—
(a) to deal with the matter;
(b) to grant the order to be sought from the Tribunal.’
14 Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others [2021] ZASCA 91; 2022 (1) SA 377
(SCA) (Lewis) para 15; see also s 139(c) and 142(b) of the Act.
15 Section 142(a)-(d) of the Act.
12
[22] The approach adopted by the Competition Tribunal in The Competition
Commission v South African Airways was as follows:16
‘The Tribunal is a creature of a particular statute that has as its principal objective the protection
of the public from anti-competitive conduct. This reality accounts for certain of the powers given
us by the legislature including our inquisitorial power and it animates our approach to a range of
simple and complex matters including the status of pleadings before us. In short it ensures that we
adopt, if anything, a more flexible approach to the pleadings before us than would the High Court
in a civil matter. We are not refereeing a conflict between two private rivals; we are securing the
objectives of the Competition Act. We are not refereeing a conflict between two private rivals; we
are securing the objectives of the Competition Act.’17(Emphasis added.)
[23] In my view, the informality of the process in the Tribunal similarly calls for a
more flexible approach in relation to the pleadings filed . As with the Competition
Tribunal, the Tribunal has an inquisitorial role to ensure that all relevant and material
facts are considered and ventilated. It is the role of the NCR and the Tribunal to
protect the public from unscrupulous conduct. The approach adopted in the second
judgment, seeks to place a restriction on the powers of the Tribunal and adopt s a
strict approach, as one might do in civil proceedings. This approach flies in the face
of the express provisions of the Act which require proceedings to be conducted
informally.
[24] The second judgment, in finding that the Tribunal did not have the power to
condone the filing of the supplementeary affidavit, describes the allegations in the
supplementary affidavit as ‘new information ’ which was not included in the
founding affidavit. It refers to the following excerpts in the supplementary affidavit,
16 The Competition Commission v South African Airways (Pty) Ltd [2001] ZACT 44 (SAA).
17 SAA at 5-6.
13
which it states ‘makes plain, the NCR sought in some respects to advance a ‘new
case’ in the supplementary founding affidavit:
‘4. I am deposing to this affidavit to include following, which was not included in the
Applicant’s original founding affidavit:
4.1. That the Respondents repeatedly contravened Section 106(5) (c) and 106(1)(b)(ii) of the
Act;
4.2. That the Respondents have repeatedly contravened section 99(1) (b), as an alternate
contravention in the event that the Tribunal finds that the Respondents’ credit agreements are pawn
transactions;
4.3. To include a more detailed explanation as to why the Applicant submits that the
Respondents’ agreements are secured credit agreements, not pawn transactions.’
[25] However, as the deponent to the supplementary affidavit explains, the facts
relating to each of the contraventions mentioned were contained in the founding
affidavit and the report, but the conclusions and declarators that they amounted to
contraventions of the Act, were erroneously omitted. Thus, in the notice of motion,
to which the founding affidavit in the condonation application is attached, the NCR
seeks relief that these practices be declared as contraventions of the Act. All three of
the sections referred to deal with the insurance for which the respondents required
consumers to pay.
[26] In regard to the contravention of s106(5) (c) of the Act, the NCR had alleged
in the founding affidavit that ‘it is a general business practice of the respondents to
advise consumers that insurance i s required in terms of the loan ’, and ‘they are not
given the opportunity or right to waive the proposed policy and substitute it for a
policy of the consumer’s own choice. Further, the respondents do not provide
14
consumers with a copy of the policy document’. These are clearly contraventions of
s 106(5)(c) of the Act.
[27] From the investigations referred to in the founding affidavit, in terms of s
106(1)(b)(iii) of the Act, the maximum of any loan to a consumer is fixed at the
maximum of 50% of the market value of the consumers’ vehicles. All the credit
agreements sampled during the NCR’s investigation make provision for cons umers
to pay insurance premiums for insurance which covers the full value of the vehicle.
This amounts to a contravention of s 106(1)(b)(iii) of the Act. This section was
expressly mentioned in the report, and is a precursor to s 106 (2),18 which was cited
as another section of the Act that was contravened.
[28] The respondents contended that the agreements were not secured loan
agreements, but pawn transactions . If this is so, the alternative contravention of s
99(1)(b) of the Act becomes applicable. Under that section, a credit provider under
a pawn transaction is prohibited from requiring a consumer to take up or pay for
insurance which covers the risk of loss or damage to the consumer’s vehicles during
the period that the vehicles are held in pledge by the respondents as security for the
consumers’ indebtedness to the respondents. As set out above, i t is common cause
that the respondents required their clients to pay for insurance. The NCR thus sought
to include an order that, in the event that it is held that the respondents have
18 Section 106 (2) of the Act provides that:
‘Despite subsection (l), a credit provider must not offer or demand that the consumer purchase or maintain insurance
that is-
(a) unreasonable; or
(b) at an unreasonable cost to the consumer, having regard to the actual risk and liabilities involved in the credit
agreement.’
15
concluded pawn transactions as opp osed to secured loan agreements, that they had
contravened s 99(1)(b) of the Act.
[29] The final issue which was sought to be introduced in the supplementary
affidavit was an explanation as to why the NCR regarded the respondent s’
agreements as secured loan agreements, rather than pawn transactions (as defined in
the Act). This issue was dealt with in detail in the report. In NCR’s founding affidavit
in support of the application for condonation, the NCR alleged that:
‘. . . [t]he issue regarding categorisation of the credit agreements according to the definitions under
the National Credit Act is, I submit, central to the dispute between the parties. The Respondents
complain that the Applicant’s founding papers do not explain the basis upon which t he Applicant
claims that the agreements are secured loans as opposed to pawn transactions. The Applicant
submits that this was an issue of interpretation of the Act and thus would be addressed
in legal argument at the hearing. and, therefore, it was not st rictly necessary to set out this
argument in its founding affidavit.’
[30] The NCR however, ex abundante cautela , in their supplementary affidavit,
referred to three reasons for the distinction. They contended that:
(a) The respondents were not entitled to retain all of the proceeds of the sale of the
vehicle. If there was a surplus, as required in terms of paragraph (c) of the
definition of ‘pawn transaction’;
(b) Conversely, if there was a shortfall, the credit agreements do not provide that
the proceeds from the sale of the vehicle will constitute full and final settlement
of the consumer’s debt. And the respondents do not accept the proceeds of the
sale as full and final settlement of the debt (also required in terms of paragraph
(c) of the definition);
16
(c) The agreements, on the other hand, meet all of the definitional requirements
required to be considered ‘secured loan’ agreements.
This explanation was based upon the facts set out in the report and the founding
affidavit and are referred to in s 99 (1)(b).
[31] It is thus clear that no new case is made out in the supplementary affidavit. It
made references to the report, which was attached to the founding affidavit. All the
facts relating to the contraventions were contained therein. The interpretation of the
definitions and descriptions in the Act, of pawn transactions and secured loan
agreements, is a matter for legal argument. No new evidence was produced in the
supplementary affidavit, and none will be required at the hearing.
[32] If one has regard to the nature of the allegations contained in the
supplementary affidavit, they seek, in effect, to amend the notice of motion and
founding affidavit, by adding the necessary declarators of the contraventions . The
rules provide fo r three a ffidvaits to be filed, thus this application amounted to a
departure from those rules and procedures . The description of the a lternative
contravention was already set out in the founding affidavit. The NCR could, equally,
have sought an amendment to its notice of motion and founding papers to effect
these insertions, in terms of rule 15. Whether an amendment to an affidavit would
be permissible is not for this Court to decide, but NCR sought instead , to file a
supplementary affidavit, a departure from the procedure set out in rules 6,7,13,14
and 15. In my view, the application clearly falls within the category of ‘any departure
from the rules and procedures’. Rule 10 has no application because the condonation
sought is listed in rule 3 and contrary to the submissions of the respondents , no
further evidence will be required at the hearing.
17
[33] If the appeal is refused on the basis that the Tribunal did not have the power
to make the d ecision which it did, the NCR would be compelled to either bring an
application for an amendment or one in terms of rule 10. This protracted procedure
would have the same result as the condonation now sought, but it would be contrary
to the express provisions of the rules for the proceedings to be conducted
expeditiously and informally.
[34] I am of the view that the Tribunal correctly exercised the general powers of
condonation contained in rules 3, 34 and s 150 of the Act, in holding that the filing
of the supplementary affidavit was a departure from its rules and procedures, which
it could condone.
Good Cause
[35] It is trite that ‘good cause’ is a requirement for condonation and is expressly
referred to in rule 34(2). This requires the exercise of a discretion, on an objective
conspectus of all the facts. 19 The Constitutional Court, in Competition Commission
of South Africa v Pickfords Removals SA (Pty) Limited (Pickfords),20 repeated the
principles laid down in much jurisprudence on this point. It stated that:
‘Courts are afforded a wide discretion in evaluating what constitute s “good cause”,
so as to ensure that justice is done. Ultimately, the overriding consideration is the
interests of justice ’, which are ‘inter-related: they are not individually decisive’.21
The importance of the issue and the strong prospects of success may compensate for
19 Head of Department of Education Limpopo Province v Settlers Agricultural High School and Others [2003] ZACC
15; 2003 (11) BCLR 1212 (CC) para 11; Van Wyk v Unitas Hospital and Others [2007] ZACC 24; 2008 (2) SA 472
(CC); 2008 (4) BCLR 442 (CC) para 20.
20 Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited [2020] ZACC 14; 2020 (10) BCLR
1204 (CC); 2021 (3) SA 1 (CC); [2020] 1 CPLR 1 (CC).
21 PAF v SCF [2022] ZASCA 101; 2022 (6) SA 162 (SCA) at para 15, citing Melane v Santam Insurance Company
Ltd 1962 (4) SA 531 (A) at 532C-F.
18
a long delay.22 The Tribunal took into account that the supplementary affidavit did
not introduce new causes of action and no further evidence was required. Although
the explanation for the delay provided by the NCR was lacking in detail, the
prospects of success were good, and the matter was of importance as t he
contraventions impacted on consumers’ rights . The respondents were given an
opportunity to file an answer to the supplementary affidavit, thus el iminating any
prejudice which they may have suffered. It was therefore in the interests of justice
that the NCR be granted condonation and be be permitted to supplement its founding
affidavit.
Discretion
[36] In setting aside the decision of the Tribunal to grant condonation, the high
court failed to appreciate that its power to substitute it s own determination for that
of the high court, is constrained. This much was stated as follows by Ponnan JA in
Lieutenant Colonel KB O’Brien NO v The Minister of Defence and Military Veterans
and Others (O’Brien):23
‘Importantly, we are not simply at large to interfere with the discretion exercised by the high court.
In that regard, the distinction as to whether the discretion exercised by the high court in granting
condonation was one in the ‘true’ or ‘loose’ sense is important. The importance of the distinction,
as the Constitutional Court explained in Trencon Construction (Pty) Limited v Industrial
Development Corporation of South Africa Limited and Another, is that it dictates the standard of
interference by this court. However, as the Constitutional Court emphasised, ‘even where a
discretion in the loose sense is conferred on a lower court, an appellate court’s power to inte rfere
22 Ibid.
23 Lieutenant Colonel KB O'Brien NO v The Minister of Defence and Military Veterans and Others [2022] ZASCA
178; [2023] 1 All SA 341 (SCA) (O’Brien).
19
may be curtailed by broader policy considerations. Therefore, whenever an appellate court
interferes with a discretion in the loose sense, it must be guarded.’24
Ponnan JA, in O’Brien,25 referred to Florence v Government of the Republic of South
Africa (Florence),26 where Moseneke DCJ stated:
‘Where a court is granted wide decision-making powers with a number of options or variables, an
appellate court may not interfere unless it is clear that the choice the court has preferred is at odds
with the law. If the impugned decision lies within a range of permissible decisions, an appeal court
may not interfere only because it favours a different option within the range. This principle of
appellate restraint preserves judicial comity. It fosters certainty in the application of the law and
favours finality in judicial decision-making.’ (Emphasis added.)
[37] It is clear that the discretion in this matter, is that referred to by Ponnan JA in
the preceding paragraph in O’Brien. The high court was accordingly, not at large to
interfere with discretion, which was not ‘at odds with the law’.
[38] There are two further reasons why the high court erred. The decision of the
Tribunal was clearly interlocutory. I t had no final effect, 27 and was therefore not
reviewable. Secondly, if the Tribunal had the po wer to grant condonation, which I
find it did, the respondents’ decision to review the Tribunal’s deci sion should not
have succeeded for the reasons stated by this Court in Lewis:
‘The NCA provides for an expeditious, informal and cost -effective complaints procedure. The
provisions of the NCA, as I have emphasized, requires a quick informal resolution of complaints.
The notion of an appeal to the high court against a ruling by the Tribunal to allow a direct referral
24 Ibid para 29.
25 Ibid para 30.
26 Florence v Government of the Republic of South Africa [2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10) BCLR
1137 (CC) para 113.
27 International Trade Administration Commission v SCAW South Africa (Pty) Ltd (CCT 59/09) [2010] ZACC 6;
2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC) (9 March 2010)).
20
of a complaint to it is contrary to the purpose of the NCA. The conclusion to which I have come
in respect of the construction of the NCA accords with the approach of the courts to appeals
generally, which militates against appeals which do not contribute to the expeditious and cost
effective final determination of the main dispute between the parties.’28
[39] In the result I would have made the following order:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and is substituted with the
following:
‘The application is dismissed with costs.’
SE WEINER
JUDGE OF APPEAL
Ponnan JA (Hughes JA and Nhlangulela AJA concurring)
[40] I have read the judgment of Weiner JA. For the reasons that follow, I find
myself unable to agree with either the reasoning or conclusion reached by my learned
Colleague.
[41] The second respondent, Elevation Trading CC t/a Xcelsior Financial Services
(Elevation) and the third respondent, Xcelsior Financial Services (Pty) Ltd
(Xcelsior) (collectively referred to as the respondents), are registered credit
providers under the National Credit Act 34 of 2005 (the Act). The appellant, the the
NCR, received complaints against the respondents. It is n ot necessary to detail the
28 Lewis para 19.
21
nature of the complaints; it suffices for the present to state that on the strength of
them, the NCR initiated an investigation into the conduct of the respondents on 16
March 2017, leading it (the NCR) to the conclusion that the conduct of the
respondents repeatedly contravened various provisions of the Act and the
Regulations framed thereunder (the regulations).29
[42] On 4 July 2018, the NCR applied to the first respondent, the Tribunal for the
cancellation of the registration of the respondents as credit providers with immediate
effect; the imposition of an administrative fine on the respondents; and, an order that
the respondents refund their consumers. The application was opposed by the
respondents. On 18 September 2018, the respondents filed their answering affidavit
together with an application for condonation, which was granted by the Tribunal on
22 October 2018. The NCR thereafter filed its replying affidavit on 5 November
2019.
[43] On 10 July 2019, the NCR applied to the Tribunal for:
‘. . . an order to condone a departure from the rules or procedures as follows:-
1. Authorising the Applicant to file a supplementary founding affidavit, (which supplementary
founding affidavit is attached hereto);
2. Giving further direct ions with regard to the delivery of answering and replying affidavits
pertaining to the supplementary founding affidavit;
3. Granting the Applicant leave to amend its Notice of motion Dated 4 July 2018, by the insertion
in the Table in Part D thereof of the following additional rows…’
[44] In support of the application, it was stated that ‘whilst preparing for the
hearing of the matter [it] had come to realise that there were some issues with the
29 The National Credit Regulations 2006.
22
current pleadings . . . which need to be addressed’. It was further asserted on behalf
of the NCR:
‘11. I respectfully submit that it is in the interests of justice that condonation be granted and that
Applicant be allowed to supplement its founding affidavit papers, for the following reasons:-
11.1 By allowing the Applicant to supplement its founding papers, all of the
contraventions which arise from the facts at hand will be able to be fully
ventilated and adjudicated;
11.2 It would not be fair or in the interests of justice that the Respondents be enabled
to escape liability for contravening the Act, based purely on minor deficiencies
in the founding papers. Such a result would be extremely prejudicial to
consumers who were the victims of the Respondent’s unlawful conduct;
11.3 The issue regarding categorisation of the credit agreements according to the
definitions under the National Credit Act is, I submit, central to the dispute
between the parties. The Respondents complain that the Applicant’s founding
papers do not explain the basis upon which the Applicant claims that the
agreements are secured loans as opposed to pawn transactions. The Applicant
submits that this is an issue of interpretation of the Act and thus is to be
addressed by legal argument and, therefore, it was not strictly necessary to set
out this argument in its founding affidavit. However, it is beneficial for the
administration of justice that the Applicant be allowed to supplement its
founding papers to deal with this issue which is central to the dispute between
the parties – this will allow the primary dispute to be fully ventilated.
12. I respectfully submit that the prejudice suffered by the filing of the supplementary founding
affidavit will be minimal, if any. In fact, the Applicant and the consumer protection functions
which it carries out will be prejudiced if the Applicant is precluded from filing the supplementary
papers.’
[45] In opposing the application, Mr Robert Ribeiro, a member of Elevation and a
director of Xcelsior, asserted that:
23
‘The applicant seeks an order that is simply not provided for in the regulations (rules) gove rning
the procedures before the tribunal. The regulations do not provide for the filing of supplementary
founding affidavits (or any other supplementary affidavits).’
[46] The application succeeded before the Tribunal, which evidently took the view
that the application fell to be considered in terms of rule 34(1)(d). It stated:
‘The Tribunal . . . has previously ruled that a supplementary affidavit can be
considered as an application in terms of Rule 34(1)(d); to condone a departure from
the Rules and pro cedures [ Foschini Retail Group (Pty) Ltd v National Credit
Regulator NCT/84881/2017/140(1) NCA – Rule 34].’
[47] On 22 January 2020, the respondents applied to the high court for an order in
the following terms:
‘The order of the first respondent dated 12 September 2019, annexed to the Notice of Motion as
annexure “X”, is reviewed and set aside and the decision whether or not to grant condonation to
the second respondent for the filing of a supplementary founding affidavit is remitted to the first
respondent to consider and decide afresh.’
[48] Although not very elegantly expressed, the thrust of the respondents’
contention before the high court - as I conceive it - was that: first, as a creature of
statute, the powers of the Tribunal are those specificall y assigned to it in terms of
the Act and the regulations; and, second (and this is linked to the first), that the rules
governing proceedings before the Tribunal do not make provision for the filing of a
supplementary founding affidavit. Accordingly, so th e contention proceeded, the
Tribunal’s order permitting the NCR to file a supplementary founding affidavit
constituted a nullity and was thus susceptible to review. 30
30 Master of the High Court Northern Gauteng High Court, Pretoria v Motala NO and Others [2011] ZASCA 238;
2012 (3) SA 325 (SCA); Knoop and Another NNO v Gupta (No 1) [2020] ZASCA 149; [2021] 1 All SA 17; 2021 (3)
SA 135 (SCA) para 33 and 34.
24
[49] In my view, both the NCR and the Tribunal misconceived the enquiry. The
NCR was not, in truth, seeking condonation for its failure to comply with one of the
Rules for the Conduct of Matters before the Tribunal (the rules). It was not asking
the Tribunal to alter a time limit prescribed by the rules or to condone its failure to
comply with a rule. It was, properly construed, seeking the leave of the Tribunal to
file a further affidavit. The application by the NCR was made on form TI.r34, in
terms of which an applicant may apply to ‘condone non -compliance with a rule or
procedure in terms of Tribunal rule 34’.
[50] Rule 34, headed ‘Condonation of late filing and non -compliance with rules’,
provides:
‘(1) A party may apply to the Tribunal in Form TI.r34 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.
(2) The Tribunal may grant the order on good cause shown.’
[51] In this matter, reliance is sought to be placed on rule 34(1) (d). However, I
cannot see how that rule can possibly apply to an application such as the present.
Under the guise of a condonation application, the NCR was seeking the permission
of the Tribunal to do something that may well have falle n outside the scope and
ambit of the rules; namely, the admission of a further affidavit. It seems to me
doubtful that the Tribunal was empowered to permit the filing of a supplementary
founding affidavit. Notably, in the Magistrates Court, which is also a creature of
statute, rule 55(1)(i) expressly provides that ‘the court may in its discretion permit
25
the filing of further affidavits’. I could find no similar provision in the Tribunal’s
rules.
[52] Unlike the high court (as also this Court and the Consti tutional Court), the
Tribunal (like the Magistrates Court) has no inherent jurisdiction to regulate its own
process in the interests of justice. The power of the high court in that regard, is
derived from the common law and now entrenched in s 173 of the C onstitution. In
terms of this power, the high court, which has always been able to regulate its own
proceedings for a number of reasons; including, catering for circumstances not
adequately covered by the rules, as also, generally ensuring the efficient
administration of a court’s judicial functions. 31 It also has the power, unlike the
Tribunal, in the exercise of its inherent jurisdiction to grant procedural relief where
the rules of court make no provision for it.32
[53] As far the high court goes, it has come to be accepted that it is in the interests
of the administration of justice that the well -known and well -established general
rules regarding the number of set of affidavits and the proper sequence of affidavits
should ordinarily be observed ( James Brown & Hamer (Pty) Ltd v Simmons NO ).33
As it was put in the last-mentioned case:
‘Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of
its ordinary sequence, the party tendering it is seeking, not a right, but a n indulgence from the
Court: he must both advance his explanation of why the affidavit is out of time and satisfy the
Court that, although the affidavit is late, it should, having regard to all the circumstances of the
case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy nor
31 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) para 40.
32 Carmel Trading Company Ltd v Commissioner for the South African Revenue Services and Others [2007] ZASCA
160; [2007] SCA 160 (RSA); [2008] 2 All SA 125 (SCA); 2008 (2) SA 433 (SCA).
33 James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) at 660E-H.
26
desirable. In any event, I do not find it necessary to enter upon any recital or evaluation of the
various considerations which have guided provincial Courts in exercising a discretion to admit or
reject a late tendered affidavit (see eg authorities collated in Zarug v Parvathie 1962 (3) SA 872
(N)). It is sufficient for the purposes of this appeal to say that, on any approach to the problem, the
adequacy or otherwise of the explanation for the late tendering of the affidavit will always be an
important factor in the enquiry.’
[54] The principles distilled from the cases dealing with the high court practice
offer guidance as to the manner in which the magistrates court should exercise its
discretion under rule 55(1)(i). The relevant considerations are set out in Porterstraat
69 Eiendomme v PA Venter Worcester.34
[55] Thus, had this matter served before either the high court or the magistrates
court, the NCR would not have been entitled as of right to file a further affidavit.
Whether such permission would be granted in a given case is basically a question of
fairness to both sides.35 Normally, the circumstances would have to be exceptional.36
It has been observed that ‘a litigant who seeks to serve an additional affidavit is
under a duty to provide an explanation that negatives mala fid es or culpable
remissness as the cause of the facts and/or information not being put before the Court
at an earlier stage’. 37 There must furthermore be a proper and satisfactory
explanation as to why the information contained in the affidavit was not put up
earlier, and what is more, the Court must be satisfied that no prejudice is caused to
the opposite party that cannot be remedied by an appropriate order as to costs. 38
34 Porterstraat 69 Eiendomme v PA Venter Worcester 2000 (4) SA 598 (C) at 617B-F.
35 Bangtoo Bros. and Others v National Transport Commission 1973 (4) SA 667 (N) at 680A-B.
36 Ebrahim (Pty) Ltd v Mahomed and Others 1962 (1) SA 90 (D) at 92A-B.
37 Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) para 10 and the cases there cited.
38 Ibid.
27
[56] The statements of the NCR in this matter, fall far short of a satisfactory
explanation as to why it was unable to secure the information prior to deposing to
the founding affidavit, the preparation of the original notice of motion, and the
launching of the application for the deregistration of the respondents. By that stage,
the investi gation by the NCR into the conduct of the respondents had been
completed. Still less do they furnish a satisfactory explanation as to why, at any rate,
the ‘new’ information was not included in the replying affidavit. What is more, as
the following excerpt makes plain, the NCR sought in some respects to advance a
‘new case’ in the supplementary founding affidavit:
‘4. I am deposing to this affidavit to include following, which was not included in the
Applicant’s original founding affidavit:
4.1. That the Respondents repeatedly contravened Section 106(5)(c) and
106(1)(b)(ii) of the Act;
4.2. That the Respondents have repeatedly contravened section 99(1)(b), as an
alternate contravention in the event that the Tribunal finds that the
Respondents’ credit agreements are pawn transactions;
4.3. To include a more detailed explanation as to why the Applicant submits that the
Respondents’ agreements are secured credit agreements, not pawn
transactions.’
[57] The NCR accordingly sought orders, in a ddition to those in the initial notice
of motion, that the respondents had repeatedly contravened ss 106(5) (c) and
106(1)(b)(ii) of the Act, and in the alternative, that the respondents repeatedly
contravened s 99(1)(b).
[58] Accordingly, had this matter served before the high court it is doubtful that
the prospects of the admission of the supplementary founding affidavit would have
28
necessarily led to a more expeditious resolution of the matter or that admitting it into
evidence would not have been unduly prejudicial to the respondents. As the Tribunal
misconceived the nature of the enquiry, it failed to consider whether: firstly, it had
the power to permit the NCR to file a supplementary founding affidavit; secondly,
the source, nature, extent and scope of such power; and, thirdly, assuming that it had
such power, the relevant considerations that it had to have regard to in exercising
that power.
[59] In the circumstances, the order by the high court remitting the matter to the
Tribunal, albeit for different reasons, must stand. Accordingly, the appeal must fail.
As to costs: There was no appearance on behalf of the respondents at the hearing of
the appeal. Moreover, as the parties had misconceived the issue, the point held to be
decisive in the appeal had not been raised by them. Consequently, there should be
no order as to costs in the appeal.
[60] In the result, the appeal is dismissed.
__________________
V M PONNAN
JUDGE OF APPEAL
29
Appearances
For appellant: K Kollapen
Instructed by: VDT Attorneys, Pretoria
Phatshoane Henney Attorneys, Bloemfontein
For second and third respondent: No appearance
Instructed by: J I Van Niekerk Attorneys, Pretoria
Van Wyk & Preller Attorneys, Bloemfontein.