The National Credit Regulator v National Consumer Tribunal and Others

Following complaints from consumers, the National Credit Regulator (NCR) investigated Elevation Trading CC t/a Xcelsior Financial Services and Xcelsior Financial Services (Pty) Ltd, registered credit providers under the National Credit Act 34 of 2005 (NCA). The investigation alleged various contraventions of the NCA, including excessive charges, reckless lending, unlawful insurance practices and misuse of consumers’ vehicles as security. The NCR referred the matter to the National Consumer Tribunal seeking cancellation of the respondents’ registrations. After filing its founding, answering and replying affidavits, the NCR realised shortly before the hearing that although the founding affidavit contained the factual allegations, it had omitted to seek declaratory relief that certain conduct constituted contraventions of specific provisions of the NCA. The NCR accordingly filed a supplementary founding affidavit together with an application for condonation. The Tribunal granted condonation, finding it had the power to do so. On review, the Gauteng Division of the High Court set aside the Tribunal’s decision, holding that good cause had not been shown. The NCR appealed to the Supreme Court of Appeal.

The appeal was dismissed. The decision of the National Consumer Tribunal granting condonation for the filing of the supplementary founding affidavit remained intact.

The judgment affirms the wide procedural powers of the National Consumer Tribunal to manage its own processes and to condone non-compliance with its rules in the interests of justice. It reinforces the informal, inquisitorial and flexible nature of Tribunal proceedings under the National Credit Act, distinguishing them from rigid High Court civil procedure, and provides guidance on the scope of condonation powers in statutory tribunals.