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[2019] ZACT 23
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Bidvest Freight (Pty) Ltd v Sebenza Forwarding and Shipping (Pty) Ltd (LM177Sep18) [2019] ZACT 23 (10 January 2019)
IN
THE NATIONAL CONSUMER TRIBUNAL
HELD
IN CENTURION
Case
Number:
NCT/130744/2019/Section 56 (1)
In
the matter between
MARK
JAMES FULTON
APPLICANT
and
THE
NATIONAL CREDIT
REGULATOR RESPONDENT
Coram:
Prof
Tanya Woker – Presiding member
CONDONATION
JUDGMENT
INTRODUCTION
1.
The Applicant is Mark James Fulton a debt counsellor registered with
the National Credit Regulator (NCR) in terms of the National
Credit
Act, 2005 ( “the Applicant”).
2.
The
Respondent is the NCR a juristic person established by section 12 of
the National Credit Act, 2005 (NCA) tasked with the
responsibility of
inter
alia
monitoring registrants in the consumer credit market to ensure that
prohibited conduct is prevented or detected and prosecuted
[1]
(“the Respondent” or “the NCR”).
BACKGROUND
3.
On 8 May 2019 the Applicant received a Notice of Compliance in
terms of section 55 of the Act from the NCR (“the notice”).
The notice stated that an investigation by the NCR had revealed that
the Applicant was contravening certain provisions of the Act
and he
was required to take certain steps in order to address the said areas
of non-compliance.
4.
The
NCA provides that any person who is issued with such a notice may
apply to the National Consumer Tribunal (“the Tribunal”)
in the prescribed manner or form to review the notice within 15 days
of having received that notice;
[2]
or such longer period as may be allowed by the Tribunal on good cause
shown.
[3]
5.
On 13 May 2019 the Applicant informed
the Respondent that he disputed the allegations contained in the
notice and that he would
be submitting an objection to the notice to
the Tribunal.
6.
On 29 March 2019 the Applicant forwarded
an NCR Form 14 which is headed
National
Credit Regulator, Objection to the Notice in terms of section 56
to the Respondent and the Tribunal.
7.
On
2 April 2019 the Tribunal informed him via an emailed letter that his
objection did not comply with the Tribunal rules
[4]
because certain documents (as required by the rules) needed to
accompany the NCR Form 14.
8.
The Applicant then set about ensuring
that he complied with the rules. He received consent from the
Respondent on 10 April
2019 to file all documents relating to the
Tribunal process by email. He then filed the required documents
with the Respondent
on or about 16 April 2019 and he filed this
application for an extension of time together with the required
documents with the
Tribunal and the Respondent on 24 April 2019.
ISSUE
TO BE DECIDED
9.
The issue I am required to decide is
whether the Applicant’s late filing of certain documents
(required by the Tribunal rules)
to accompany his application for a
review of a notice should be condoned. This judgment is concerned
with that issue only
THE
APPLICANT’S SUBMISSIONS
10.
The Applicant believed that he had filed
his application for a review timeously within the 15 business day
period because he was
under the impression that all he had to do was
file the NCR Form 14. He only became aware of the fact that the
Tribunal rules required
the filing of further documents when he
received the letter from the Tribunal.
11.
Once he received this letter he
immediately commenced drafting the required documents including an
affidavit in support of his application
for a review.
THE
RESPONDENT’S SUBMISSIONS
12.
The Respondent has not opposed this
application and has already filed its answering affidavit.
LEGAL
PRINCIPLES
13.
The
NCA provides in section 56 (1) (b) that the Tribunal may grant an
extension of time in which to file an application for review
“on
good cause shown”. Further, the Tribunal rules provide that a
party may apply to the Tribunal for an order to condone
the late
filing of a document
[5]
and the
Tribunal may grant condonation “on good cause shown”.
[6]
Hence, it can be seen that both the NCA and the Tribunal rules
make provision for late filing under these circumstances provided
good cause is shown.
14.
In
Head
of Department, Department of Education, Limpopo Province v Settlers
Agriculture High School and Others
[7]
it was held that the standard for considering an application of this
nature is the interests of justice. Whether it is in the interests
of
justice to grant an extension of time depends on the facts and
circumstances of each case. Factors 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 application; and
f.
the
prospects of success.
[8]
15.
Similar
facts were also discussed by the court in the earlier case of
Melane
v Santam Insurance Company Limited
[9]
where it was pointed out that a court has a discretion that should be
exercised judicially upon consideration of all the facts.
CONSIDERATION
OF THE MERITS
16.
The Applicant f
iled
the NCR Form 14 within the required 15 day period. This is a
relatively simple document which supplies some basic general
information. This general information states that the notice
and supporting documentation
(if any)
(my emphasis) must be submitted to the Tribunal and the NCR. It
does not state that supporting documentation is in fact required.
The
Tribunal rules however provide that certain documentation is required
and must accompany the NCR Form 14. It is this
documentation
that the Applicant failed to supply within the 15 day period.
17.
Section 56 provides that the Applicant may apply to the Tribunal in
the prescribed manner and form
(my emphasis) which is a clear
indication that there will be (in all likelihood) a process that
needs to be followed.
The Applicant is a
registered debt counsellor and as
such
he should familiarise himself with the rules and processes of the
Tribunal.
18.
However, the Respondent has not opposed the application for an
extension of time and has in fact simply filed its answering
affidavit. It is clear from this that there will be no
prejudice to the Respondent should the application be granted by the
Tribunal.
19.
In addition, the Respondent responded within a reasonable time after
receiving the letter from the Tribunal indicating the documents
he
was required to file. Included in these documents is an
affidavit in which he sets out those factors which he requires
the
Tribunal to consider when it reviews his objection to the notice of
compliance.
20.
In my view it is in the interests of justice that the Tribunal should
consider the reasons why the Applicant objects to the
notice he
received from the NCR.
ORDER
21.
Accordingly, for the reasons set out above, I make the following
order:-
(1) The application for
condonation is granted; and
(2) There is no order as
to costs.
22.
As the Respondent has already filed its answering affidavit, the
normal time periods for the filing of a replying affidavit
by the
Applicant will apply from the date on which this judgment is issued
by the Tribunal.
DATED
ON THIS 21 day of May 2019
(signed)
T
Woker
Presiding
Member
[1]
See section 15
(d)
of the
NCA.
[2]
See section 56 (1) (a).
[3]
See section 56 (1) (b).
[4]
GN 789 of 28 August 2007: Regulations for matters relating to the
functions of the Tribunal and Rules for the conduct of matters
before the National Consumer Tribunal, 2007 (Government Gazette
No.30225). As amended.
[5]
Rule 34 (1).
[6]
Rule 34 (2).
[7]
2003
(11) BCLR 1212
(CC) at para[11].
[8]
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.
[9]
1962
(4) SA 531
(A) at 532C-F.