Case  CCT 272/23
[2026] ZACC 23

Hearing Date:  15 May 2025

 Judgement Date: 03 June 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On On Wednesday, 3 June 2026, the Constitutional Court handed down judgment in an application brought by court-appointed liquidators of CMR Group (Pty) Ltd (CMR), Ms Jacolien Barnard N.O. and Ms Beatrice Linda Mills N.O. The liquidators sought leave to appeal a judgment of the Supreme Court of Appeal which upheld a judgment of the High Court of South Africa, Gauteng Division, Pretoria (High Court), finding that the liquidators were not entitled to appeal a decision of the National Consumer Tribunal (Tribunal) to the High Court under section 148(2)(b) of the National Credit Act 34 of 2005 (NCA), as they did not qualify as “participants at a hearing” within the meaning of section 148(2)(b).

Background

CMR was a registered credit provider and operated a “pawn your car and still drive it” scheme. Under the scheme, consumers borrowed money of up to 50% of the value of their vehicles and registeredthe vehicle into the name of CMR while retaining possession and use through the pawn agreement. Rentals did not reduce the principal debt and if consumers defaulted, they forfeited ownership to CMR. If the consumer paid off the debt, the vehicle would be re-registered in the consumer’s name.

In March 2017, the National Credit Regulator (NCR) investigated the scheme and alleged that it contravened multiple provisions of the NCA. It referred the matter to the Tribunal, seeking, amongst other things, declarations that CMR had contravened the NCA, that CMR repay consumers and that CMR’s registration as a credit provider be cancelled.

CMR opposed the application and filed an answering affidavit, in which it raised various defences. A hearing before the Tribunal was postponed after CMR’s attorneys withdrew and informed the Tribunal that CMR had been voluntarily wound up. The matter was re-enrolled for hearing on 30 July 2019, with notice given to the liquidators. Ms Barnard indicated that she would attend the hearing. However, after mistakenly diarising the date incorrectly, she failed to appear at the hearing. The Tribunal proceeded in the absence of the liquidators and, on 12 August 2019, delivered its judgment against CMR. It ordered that CMR’s registration as a credit provider be cancelled; interdicted CMR from entering into further credit transactions with consumers and from operating as a credit provider; declared the agreements under the scheme as reckless and set them aside with CMR to reimburse consumers with all fees and charges paid; interdicted CMR from proceeding with any civil proceedings against consumers and rescind any judgments obtained against consumers; and ordered that CMR appoint an auditor to determine amounts paid by consumers which were to be reimbursed accordingly.

The liquidators appealed to the High Court in terms of section 148(2)(b) of the NCA, and sought the setting aside of certain remedial orders made by the Tribunal. The High Court held that the liquidators were not entitled to appeal under section 148(2)(b) of the NCA. The High Court held that being a “participant in the hearing before the Tribunal is a jurisdictional requirement for the noting of an appeal in terms of section 148(2)(b) of the NCA”. No reasons were provided for this conclusion.

On appeal, the Supreme Court of Appeal agreed with the High Court, and held that “a participant”, as used in section 148(2)(b) of the NCA, requires physical participation in the hearing, either personally or through a legal representative, and that the consideration of an answering affidavit by the Tribunal did not suffice. The Supreme Court of Appeal also held that a party who did not participate in the sense contemplated by it had a remedy in terms of section 165 of the NCA, which provides for the rescission or variation of orders granted by the Tribunal which are, amongst other things, erroneously sought or granted in the absence of a party. It further held that the liquidators should have applied to rescind the order of the Tribunal under section 165, as opposed to appealing it in terms of section 148(2)(b).

In this Court, the liquidators argued that the matter engaged both the constitutional and general jurisdiction of the Court, as it required, among other things, the interpretation of section 148(2)(b) of the NCA, a provision with significant implications for the public at large. On the merits, they contended that the High Court and Supreme Court of Appeal had adopted an overly narrow interpretation of section 148(2)(b) by equating participation with physical attendance, which violates sections 34 and 166 of the Constitution. They submit that there was participation as the Tribunal considered CMR’s answering affidavit in reaching its decision.

The NCR argued that the matter raised no constitutional issue and concerned only the interpretation of the NCA, which is not a constitutional issue. On the merits, the NCR maintained that filing affidavits did not amount to participation in a hearing and that actual attendance remained necessary. It emphasised that rescission existed precisely to address situations where orders were granted in the absence of parties. It submitted that section 34 of the Constitution did not entitle litigants to select their preferred procedure and that the liquidators merely sought to use appeal proceedings where rescission was the proper route.

The first judgment

The first judgment, penned by Opperman AJ (with Dambuza J and Goosen AJ concurring) held that this Court had constitutional jurisdiction to entertain the matter, as it concerned a dispute of the interpretation of statute where one interpretation may be more constitutionally compliant. In addition, it found that the question of who qualifies as a “participant in a hearing” under section 148(2)(b) constituted an arguable point of law with broader public significance beyond the parties.

The first judgment rejected the Supreme Court of Appeal’s view that a party must be physically present at an oral hearing before the Tribunal to qualify as a participant under section 148(2)(b) of the NCA. It held that other conduct during the proceedings, including filing affidavit evidence that is considered by the Tribunal, may also constitute participation.

The first judgment reasoned that the words “participant” and “hearing” cannot be given a narrow dictionary meaning, but must be interpreted in light of the text, context and purpose of the NCA. It holds that the Tribunal is intended to operate informally, inquisitorially and expeditiously, and requiring physical attendance is inconsistent with this design.

at the oral argument stage, but includes evidence presented as required by the Tribunal (in this instance by way of affidavit) and in the run up to the hearing. A party may therefore be a participant in a hearing through written material if that material is considered and evaluated by the Tribunal a situation akin to an opposed motion in a court of law.

Applying this approach, the first judgment held that CMR had participated in the hearing before the Tribunal as the Tribunal considered CMR’s affidavit and dealt with its submissions in its 18 page reasoned decision. The liquidators’ absence from the oral stage of the proceedings therefore did not mean that they did not participate in the hearing.

It also found that rescission under section 165 was not necessarily the liquidators’ only remedy, as there is nothing in the NCA which suggests that a party does not have a choice of remedy. Furthermore, section 165 requires that, in addition to absence, an order be sought or granted erroneously. In this case, the Tribunal was entitled to proceed without the liquidators being present. As such, the first judgment found that section 165 would not have availed the liquidators.

Since CMR had placed evidence before the Tribunal and the Tribunal adjudicated the matter after considering such evidence, the liquidators could not be treated as if they were not participants. The first judgment therefore found that an appeal under section 148(2)(b) remained competent. It would have granted leave to appeal, upheld the appeal, and remitted the matter to the High Court for consideration of the merits of the appeal.

The second judgment

The second, majority judgment penned by Kollapen J (with Madlanga ADCJ, Majiedt J, Mhlantla J, Rogers J and Theron J concurring) agreed that this Court’s jurisdiction was engaged and leave to appeal should be granted. However, it found that the appeal ought to be dismissed.

The second judgment agreed that the issue at heart of the matter was the proper interpretation to be given to the phrase “participant in a hearing before a full panel of the Tribunal” found in section 148(2)(b) of the NCA. However, the second judgment took the view that the first judgment, by accepting that participation before the Tribunal is not limited to physical participation in a hearing, ignored the basic canons of interpretation laid down by this Court and the carefully structured processes and sequencing in the NCA and how it deals with

hearings. In doing so, it arrived at a strained interpretation of words and phrases which are regularly used and that have acquired a common meaning within the judicial and adjudicative system. Finally, it resulted in a conclusion that largely ignored the meaning and purpose of the enactment.

Unlike the first judgment, the second judgment found that the hearing before the panel of the Tribunal is the most conspicuous and significant part of the dispute resolution process and cannot be considered synonymous with the entirety of the proceedings. In fact, said the second judgment, to remove the Tribunal’s oversight of its hearing proceedings, by allowing participation therein on paper, would negate the active and inquisitorial role of the Tribunal and, thereby, undermine the objects, background and purpose of the NCA. In reaching this decision, the second judgment traced the use of the word “hearing” and “participant” throughout the NCA and its Rules and concluded that the NCA encourages participation in a hearing, as it allows the proper ventilation of the dispute, and does so in part by reserving the right of appeal only to those who have participated in a hearing.

Furthermore, the second judgment considers several unacceptable consequences of the first judgment which negate against accepting its interpretation of the impugned provision.

First, the first judgment would require an appeal court, charged with a matter in terms of section 148(2)(b) of the NCA, to conduct a preliminary enquiry to determine whether a physically absent party was, nevertheless, a participant in a hearing. Indeed, the effect of the first judgment would be that, in every case involving an appeal in terms of section 148(2)(b), a court will have to look to the facts and decide whether a party falls within the meaning of “a participant”. This does not accord with the pronouncement in Telkom that a “statute must apply to all subjects equally and that its interpretation cannot vary from one factual matrix to the next” and would inevitably result in legal uncertainty.

Furthermore, the fact-specific approach that the first judgment contended for is only possible if one reads the wording “participant in a hearing before a full panel of the Tribunal” in the impugned provision as “participant in the proceedings before the Tribunal”. This would not be interpreting but legislating and would effectively substitute the clear language used by the Legislature with something different, removed from what the legislative intent signalled. It also runs the grave risk of offending the principle of the separation of powers. The second judgment concluded that there can be no separate interpretative exercise as to what section 148(2)(b) means in each case.

Second, the stance adopted in the first judgment would render the tribunal hearing hollow but would also allow for the piecemeal adjudication of disputes. A party, much like the first applicant sought to do in the present matter, would be allowed to absent itself from the hearing and then be permitted to ventilate new issues on appeal even when those issues should have been raised before and dealt with by the Tribunal. This is antithetical to the consumer-friendly and participatory adjudication mechanism that the NCA creates.

Third, that the NCA envisages participation in the hearings of the Tribunal before resort to an appeal accords in large measure with the rationale underpinning the principle of subsidiarity. The consequence of the applicants’ argument is that they can file an affidavit, avoid the hearing before the panel and proceed to prosecute an appeal even on issues not traversed in the affidavit. In contrast, the second judgment concludes: a party who absented itself from such a hearing avoided the remedy created by the NCA and must then accept the consequences that come with such absence. Here, it is the exclusion of such a party from appealing the decision of the Tribunal from which it absented itself.

On the specific facts of this matter, the second judgment finds that it cannot be said that there was any form of participation in the hearing by CMR, or its liquidators, such as to make them participants for the purposes of section 148(2)(b). By failing to attend the hearing, it precluded itself from participating therein. It was unable to make or respond to oral submissions, it was not able to put questions to witnesses or challenge evidence it did not agree with, nor could it inspect documents. And importantly, its absence had the effect of preventing the other party from challenging its evidence and the panel of the Tribunal from properly exercising its inquisitorial powers. Furthermore, the first applicant also took no steps, when it discovered that the date it diarised was incorrect, to bring this oversight to the attention of the Tribunal – this at a time when the Tribunal was not functus officio (discharged of its function) as it had not yet delivered its judgment. It may have been possible to seek the re-opening of the hearing it had missed.

In conclusion, the second judgment found that a purposive interpretation of section 148(2)(b), read in conjunction with section 165, indicated that, for reasons of simplicity, expediency and cost-effectiveness, the right of appeal under section 148(2)(b) arises only where a party has participated at the hearing of the dispute – this by being physically present and engaged with the hearing. As such, the second judgment ordered that the appeal be dismissed with each party to pay its own costs in this Court.

The Full judgment  here