IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION

Transcription

1 IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION Case number: In the matter between: NATIONAL CREDIT REGULATOR APPLICANT (Respondent in the main matter) and MORTGAGE SECURED FINANCE (PTY) LTD RESPONDENT (Applicant in the main matter) Coram: Prof K Moodaliyar - Presiding member CONDONATION JUDGMENT THE PARTIES 1. The Applicant in this matter is the National Credit Regulator, established in terms of section 12 of the National Credit Act, (the Act), and responsible for inter alia monitoring the credit market to ensure that prohibited conduct is prevented or detected and prosecuted (hereinafter referred to as "the Applicanr). The Applicant in this matter is the Respondent in the main matter. 2. The Respondent is Mortgage Secure Finance (Pty) Ltd, a registered credit provider with registration number NCRCP4865, (hereinafter referred to as "the Respondent"}. The Respondent in this matter is the Applicant in the main matter. 1

2 National Credit Regulator vs Mortgage Secured Finance (Pty) Ltd APPLICATION TYPE 3. This is an application to the National Consumer Tribunal ("the Tribunal") to condone the Applicant's non-compliance with its rules by the late service and filing of its opposing affidavit to the Respondent's main application; for review; launched in terms of section 56 of the Act. 4. The application is brought in terms of Rule 34(1) of the Regulations for Matters relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribuna11 (hereinafter the "Rulen or "Rules"). 5. The Respondent is not opposing the application for condonation and the application is accordingly considered on an unopposed basis. FACTS OF THE MATTER 6. On 12 September 2016 the Applicant served a compliance notice on the Respondent. In terms of the provisions of Section 56(1)(a) of the Act, the Respondent had the right to apply to the Tribunal to review the said compliance notice within a period of 15 (fifteen) days from receipt thereof. Failing such application, the Respondent could still launch such application outside the said time limit but had to apply for condonation for the late filing to the National Consumer Tribunal. 7. The Respondent failed to file its application within the fifteen days and launched an application for condonation for the late filing of its review application. 8. The Applicant opposed the condonation application. 9. On 17 October 2017, the Tribunal published a ruling, granting the Respondent's application for condonation.2 1 Published under GN 789 in GG of 28 August 2007 as amended by GenN 428 in GG of June 2011 (published in terms of the Consumer Protection Act 68 of 2008). GN R203 in GG of 13 March 2015 and GN 157 in GG of 4 February See T.Wokers ruring dated 17 October 2017 in Mortgage Secured Finance {pty) Ltd v The National Credit Regulator. Page 2 of 6

3 National Credit Regulator vs Mortgage Secured Finance (Pty) Ltd 10. The Tribunal's ruling was ed to the Applicant; Hogan Lovells (South Africa) Inc. Hogan Lovells (South Africa) Inc had been duly appointed attorneys for the Applicant at all relevant times. And according to the affidavit filed by Johannes Jacobus Enslin Nel, an attorney and director of the firm Hogan Lovells (South Africa) Inc., the condonation should have been ed to him as well. 11. Mr Nel states that he only discovered the existence of the ruling when he received a telephone call on 9 February 2018 from Ms Tiffany Shadrach of the Tribunal, who told him of such. Ms Shadrach ed the ruling to Mr Nel that day and apologised to Mr Nel for the oversight in her office not including him in the issuing of the condonation ruling. 12. As a result of the circumstances, the Applicant did not file an affidavit opposing the Respondent's main application in terms of Section 56 within the time limits prescribed in the rules for the conduct of matters in the Tribunal. 13. It is against this background that the Applicant subsequently lodged the application for condonation to file its opposing affidavit, alternatively, for an order for the time limit to serve the opposing affidavit being extended; to a date to be determined by the Tribunal. The Tribunal must now decide whether to grant the condonation taking into account various factors. LEGAL PRINCIPLES 14. According to Rule 34(1) of the Tribunal Rules, a party may apply to the Tribunal for an order to, among other things; condone the late filing of a document or application. The Tribunal may grant the order on good cause shown. 15. Whilst the Act does not provide criteria that may be considered when assessing whether to condone non-compliance with Tribunal rules or not, jurisprudence has been developed by the courts over Ume, providing guidance to the Tribunal. 16. For instance, in Melane v Santam Insurance Company Limited3 when dealing with the question of condonation it was held that: (4) SA 531 (A) al 532C F. Page 3 of 6

4 National Credit Regulator vs Mortgage Secured Finance (Ply) Ltd "The approach is that the Court has 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. 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 far a Jang delay." 17. Similarly in Mbutuma v Xhosa Development Corporation Ltd4 the court held that: "The main issue in these proceedings is whether this Court should grant the indulgence sought, notwithstanding the inordinate delay in approaching the court for condonation. The Court has a very wide discretion in these matters. Condonation may be granted under Rufe 13 of the Rules of this Court if the applicant has satisfied the Court that sufficient cause has been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause has been shown, the Courl will consider all the relevant facts and circumstances of the particular case, such as the degree of noncompliance with the Rules, for example the length of the delay, the explanation therefor, the importance of the case, the prospects of success, the respondent's interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice... ff 18. From these two judgments it can be seen that not only must the Tribunal act fairly in arriving at a decision to grant or not to grant condonation, it must also consider a number of factors, including the degree of lateness of the application, the reasons therefor and the prospects for success by the applicant should the matter be heard and the importance of the case to the parties. CONSIDERATION OF FACTORS 19. Whilst there is no exhaustive list of factors to be considered by a court or tribunal when deciding whether or not to condone non-compliance with its rules, the following factors were considered by the Tribunal in this matter: SA 681 (A). Page 4 of 6

5 National Credit Regulator vs Mortgage Secured Finance (Pty) ltd (a) Degree of lateness; (b) Reasons thereof; (c) Prospects of success; and (d) Importance of the matter to the parties. 20. Assuming that the Respondent filed its application in the main matter, after receiving the condonation ruling dated 17 October 2017 from the Tribunal, the Applicant would have had 20 days to file its opposing affidavit. 21. As stated by Mr Nel, he only became aw~re of the outcome of the Respondent's condonation application on 9 February 2018, as it was an oversight from the Tribunal's registry office that he was not included in the when the ruling was issued to the parties involved. 22. It is considered that had Mr Nel been aware of the Tribunal's ruling timeously, the Applicant would have fried an opposing affidavit, whilst keeping within the Tribunal's prescribed rules. 23. The degree of lateness has to be considered in light of the other factors. 24. In the main matter the Applicant conducted an investigation in to the activities of the Respondent after receiving a complaint from consumers (Gert and Jennifer Collins). This complaint had to do with certain fees which were being charged by the Respondent in relation to a mortgage bond granted by the Respondent to them. The Applicant conducted an investigation and issued a compliance notice to the Respondent terms of Section 55(1) of the Act regarding the fees which the Respondent charges consumers. 25. Without attempting to pronounce on the merits of the case at this stage, the Applicant appears to have a prospect of success. However, there are various elements of the case that are in dispute. And the Tribunal can only adequately determine the veracity of each allegation in a full hearing of the matter. 26. The Tribunal will have to adjudicate the matter taking into account the evidence presented by both parties. Page5 of 6

6 National Credit Regulator vs Mortgage Secured Finance (Pty) Lid 27. The Respondent will not suffer any prejudice if the Applicant is permitted to file its opposing affidavit. CONCLUSION 28. Having considered the reasonable explanation by the Applicant regarding the degree of lateness, the prospect of success and the importance of the matter to the Applicant, the Tribunal finds that it will be in the interest of justice to grant condonation for the late filing of the Applicant's opposing affidavit. The importance of the case warrants that it be heard and finalised. 29. Therefore, the Tribunal having considered all the documents filed of record and all the factors relevant to the determination of this application makes the order below. ORDER 30. The application for condonation is granted. Thus done and handed down in Centurion on this 11th day of June Signed K MOODALIYAR PRESIDING MEMBER N:ation~I Consumer Tribunal Ground Floor, Building B u~cfield Office Park 272 West Avenue, Centurion, ~ n:atlon:al ~ons.umc:t trlbufui Page 6 of 6