The National Credit Regulator v National Consumer Tribunal and Others

The National Credit Regulator (NCR) investigated complaints against Elevation Trading CC t/a Xcelsior Financial Services and Xcelsior Financial Services (Pty) Ltd (the respondents), registered credit providers under the National Credit Act 34 of 2005. The NCR concluded that the respondents repeatedly contravened various provisions of the Act. On 4 July 2018, the NCR applied to the National Consumer Tribunal (the Tribunal) for cancellation of the respondents' registration, imposition of an administrative fine, and orders for consumer refunds. The respondents opposed the application and filed an answering affidavit. On 10 July 2019, shortly before the scheduled hearing on 15 July 2019, the NCR applied to file a supplementary founding affidavit, seeking to add allegations of contraventions of sections 106(5)(c), 106(1)(b)(ii), and alternatively section 99(1)(b) of the Act, and to provide further explanation regarding whether the credit agreements were secured loans or pawn transactions. The Tribunal granted condonation and permitted the filing of the supplementary affidavit. The respondents brought a review application to the Gauteng Division of the High Court, Pretoria, which set aside the Tribunal's decision on the basis that good cause had not been shown. The NCR appealed with leave of the high court.

• Whether the National Consumer Tribunal has the power to condone the filing of a supplementary founding affidavit in proceedings before it
• Whether the Tribunal's rules and procedures permit the filing of supplementary affidavits
• Whether the application constituted a departure from the rules and procedures that could be condoned under rule 34(1)(d)
• Whether good cause was shown for the granting of condonation
• Whether the high court was entitled to interfere with the Tribunal's exercise of discretion
• Whether an interlocutory decision of the Tribunal is reviewable

The appeal was dismissed. No order as to costs. The order of the high court remitting the matter to the Tribunal stood, albeit for different reasons than those given by the high court.

The binding legal principle established by the majority is that the National Consumer Tribunal, as a creature of statute, does not possess inherent jurisdiction to regulate its own process and its powers are limited to those specifically assigned to it in terms of the National Credit Act 34 of 2005 and the Rules for the Conduct of Matters before the National Consumer Tribunal. Rule 34(1)(d), which provides for condonation of "any other departure from the rules or procedures", does not empower the Tribunal to permit the filing of a supplementary founding affidavit where the rules do not expressly provide for such a procedure. An application to file a supplementary affidavit is not properly characterized as an application for condonation of non-compliance with a rule, but rather as seeking permission to do something that may fall outside the scope and ambit of the rules. Where a tribunal has misconceived the nature of the enquiry before it and failed to consider whether it has the power to grant the relief sought and the relevant considerations in exercising such power, an appellate court may interfere with the exercise of discretion.

The minority judgment (Weiner JA) observed that the National Credit Act provides for an expeditious, informal and cost-effective complaints procedure, and that the Tribunal has an inquisitorial role to ensure that all relevant and material facts are considered and ventilated. The informality of the process calls for a more flexible approach to pleadings than in civil proceedings. Appealing interlocutory rulings is contrary to the purpose of the Act. The minority also noted that if the appeal were refused on the basis that the Tribunal lacked power, the NCR would be compelled to bring alternative applications, leading to a protracted procedure contrary to the requirement for expeditious and informal proceedings. The majority judgment (Ponnan JA) observed that had the matter served before the high court or magistrates court, the NCR would not have been entitled as of right to file a further affidavit, and permission would normally only be granted in exceptional circumstances with a proper and satisfactory explanation negating mala fides or culpable remissness. The majority also noted that as parties had misconceived the issue and the decisive point had not been raised by them, there should be no order as to costs in the appeal.

This case is significant because it addresses the procedural powers and limitations of the National Consumer Tribunal as a statutory body. It clarifies that unlike the high court, the Tribunal does not possess inherent jurisdiction to regulate its own process and its powers are limited to those specifically conferred by statute and its rules. The case highlights the tension between the informal, expeditious nature of proceedings envisaged by the National Credit Act and the need for procedural certainty and fairness. It demonstrates the importance of clearly distinguishing between applications for condonation of non-compliance with rules and applications for permission to file further affidavits, which may fall outside the scope of the Tribunal's condonation powers. The split judgment reveals different judicial approaches to interpreting the Tribunal's powers and the balance between procedural formality and substantive consumer protection objectives. The case also addresses the limited circumstances in which appellate courts may interfere with discretionary decisions and confirms that interlocutory decisions of the Tribunal are generally not reviewable.