Barnard NNO v National Consumer Tribunal and Another (CCT 272/23) [2026] ZACC 23 (3 June 2026)

The Constitutional Court of South Africa, in *Barnard NNO v National Consumer Tribunal and Another (CCT 272/23) [2026] ZACC 23*, clarified the jurisdictional prerequisite for appealing decisions of the National Consumer Tribunal (NCT) under section 148(2)(b) of the National Credit Act 34 of 2005 (NCA). The Court held that to be considered a “participant in a hearing” for the purpose of appeal, a party must have actively engaged in the oral hearing stage before the Tribunal. This judgment affirms a strict interpretation of procedural participation, distinguishing it from merely filing papers, and underscores that the appropriate remedy for parties absent from a hearing, even due to error, is an application for rescission under section 165 of the NCA, rather than an appeal. The decision has significant implications for legal practitioners navigating consumer law disputes and challenging Tribunal orders.

The Constitutional Court of South Africa recently delivered a pivotal judgment in *Barnard NNO v National Consumer Tribunal and Another (CCT 272/23) [2026] ZACC 23 (3 June 2026)*, addressing a critical procedural aspect of consumer law litigation. The case centered on the interpretation of section 148(2)(b) of the National Credit Act 34 of 2005 (NCA), specifically defining what constitutes a “participant in a hearing” before the National Consumer Tribunal (NCT) for the purposes of lodging an appeal. This ruling provides much-needed clarity on the jurisdictional requirements for challenging NCT decisions, impacting how legal practitioners advise clients on recourse against Tribunal orders.

At the heart of the dispute were the joint liquidators of CMR Group (Pty) Limited, who sought to appeal adverse findings and remedial orders made by the NCT. Their appeal was initially dismissed by both the High Court and the Supreme Court of Appeal on the grounds that they had not “participated” in the Tribunal hearing. The Constitutional Court's decision to uphold this stance, albeit with a nuanced interpretation, reinforces the importance of active engagement in quasi-judicial proceedings and delineates the proper avenues for relief when procedural missteps occur. This article will delve into the background of the case, analyse the Constitutional Court's reasoning, and discuss the practical implications for legal professionals operating within the consumer credit regulatory framework.

The National Credit Act 34 of 2005 (NCA) was enacted to promote a fair and non-discriminatory marketplace for consumer credit, encourage responsible lending and borrowing, and provide for debt re-organisation in cases of over-indebtedness. Central to its enforcement framework are the National Credit Regulator (NCR) and the National Consumer Tribunal (NCT). The NCR is the primary regulatory authority overseeing the credit industry, while the NCT is an independent adjudicative body established under Section 26 of the NCA, tasked with resolving disputes between consumers and credit providers. Decisions of the NCT carry the same legal weight as those made by a High Court of South Africa.

The factual matrix of the *Barnard NNO* case originated from the business practices of CMR Group (Pty) Limited (CMR), a registered credit provider. CMR operated a controversial “pawn your car and still drive it” scheme, which involved consumers borrowing money against their vehicles, transferring ownership to CMR, but retaining possession and use. The NCR investigated this scheme, alleging multiple contraventions of the NCA, including reckless lending. Following its investigation, the NCR referred the matter to the NCT, which subsequently found CMR to have engaged in prohibited conduct. The Tribunal issued extensive remedial orders, including the declaration of credit agreements as reckless, the setting aside of consumer obligations, and an interdict against CMR from operating as a credit provider.

Crucially, the joint liquidators of CMR, Ms Jacolien Barnard N.O. and Ms Beatrice Linda Mills N.O., were not present at the NCT hearing where these orders were made, reportedly due to a diary error. Aggrieved by the Tribunal's decision, the liquidators sought to appeal to the High Court in terms of section 148(2)(b) of the NCA, which grants a “participant in a hearing” before the Tribunal the right to appeal its decision. Both the High Court and the Supreme Court of Appeal dismissed their appeal, holding that the liquidators had not met the jurisdictional requirement of having “participated” in the Tribunal hearing. This led to the application for leave to appeal before the Constitutional Court, raising a fundamental question about the scope of procedural rights within the consumer credit regulatory landscape.

The Constitutional Court, in a majority judgment penned by Kollapen J, meticulously examined the meaning of “participant in a hearing” as contemplated by section 148(2)(b) of the National Credit Act. The Court affirmed the Supreme Court of Appeal's conclusion that participation requires active engagement at the hearing stage, rather than merely filing papers or being a party to the proceedings. The Court reasoned that the legislative intent behind section 148(2)(b) was to provide an appeal mechanism for those who had the opportunity to present their case and engage with the issues during the actual hearing. This interpretation aligns with the adversarial nature of hearings, where parties are expected to advance their arguments, cross-examine witnesses, and respond to submissions.

The liquidators had argued that such a narrow interpretation of “participation” would violate constitutional rights, including access to courts. However, the Constitutional Court distinguished between the right to appeal and other avenues for relief. It highlighted that the NCA provides an alternative remedy in section 165, which allows for the variation or rescission of a Tribunal decision or order. The Court found that, given the liquidators' absence from the hearing, even if due to an error, the appropriate procedural path for them was to apply for rescission of the NCT's orders, rather than attempting to appeal a decision from a hearing in which they did not actively participate. This distinction is crucial, as rescission addresses procedural irregularities or errors in judgment, while an appeal typically challenges the substantive merits of a decision made after a full hearing.

While the majority adopted a strict interpretation, a minority judgment by Opperman AJ (with Dambuza J and Goosen AJ concurring) offered a broader perspective. The minority contended that the liquidation of CMR significantly altered the context of the proceedings and that the High Court erred in declining jurisdiction based solely on the interpretation of section 148(2)(b). The minority suggested that other forms of engagement, such as the filing of affidavit evidence that was considered by the Tribunal, could constitute sufficient participation for the purposes of appeal. This divergence underscores the complexity of defining “participation” in quasi-judicial settings and the tension between strict procedural adherence and ensuring substantive justice, particularly when a party's representative capacity (NNO) adds another layer of legal responsibility. Ultimately, the majority’s view prevailed, setting a clear precedent for future appeals from the NCT.

The Constitutional Court's judgment in *Barnard NNO v National Consumer Tribunal and Another* provides definitive guidance on the interpretation of “participant in a hearing” under section 148(2)(b) of the National Credit Act. For legal practitioners, the key takeaway is that active engagement in the oral hearing stage before the National Consumer Tribunal is a jurisdictional prerequisite for lodging an appeal against its decisions. Mere filing of papers, without physical or representative attendance and engagement at the hearing, will not suffice to establish the right to appeal.

This ruling necessitates a careful review of litigation strategies when dealing with NCT proceedings. Practitioners must ensure that their clients, or their representatives, actively participate in all scheduled hearings to preserve their right of appeal. In instances where a party is absent from a hearing, even inadvertently, the appropriate recourse is an application for rescission of the Tribunal’s order in terms of section 165 of the NCA, rather than an appeal. This distinction is vital to avoid costly and time-consuming procedural missteps. The judgment reinforces the importance of procedural diligence and clarity in the enforcement of consumer protection laws in South Africa, ensuring that the avenues for challenging quasi-judicial decisions are properly understood and utilised.