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

The Constitutional Court, in *Barnard NNO v National Consumer Tribunal and Another (CCT 272/23) [2026] ZACC 23*, has provided crucial clarity on the interpretation of “participant in a hearing” under section 148(2)(b) of the National Credit Act 34 of 2005 (NCA). The Court dismissed an appeal by liquidators who sought to challenge National Consumer Tribunal (NCT) remedial orders, finding that their mere filing of an answering affidavit, without active engagement at the hearing, did not qualify them as participants for the purpose of an appeal. This judgment reinforces the procedural distinction between appeals and rescission applications, directing parties absent from NCT hearings to pursue rescission under section 165 of the NCA rather than an appeal.

The recent Constitutional Court judgment in *Barnard NNO v National Consumer Tribunal and Another (CCT 272/23) [2026] ZACC 23* marks a significant development in South African consumer law, particularly concerning the procedural avenues available for challenging decisions of the National Consumer Tribunal (NCT). Handed down on 3 June 2026, the case grappled with the precise meaning of “participant in a hearing” as stipulated in section 148(2)(b) of the National Credit Act 34 of 2005 (NCA), a jurisdictional prerequisite for appealing an NCT decision to the High Court.

This ruling has profound implications for legal practitioners advising clients involved in proceedings before the NCT, especially those who, for various reasons, may not have actively engaged during the hearing phase. The Constitutional Court's decision to uphold the lower courts' findings, albeit with a split bench on the interpretative approach, underscores the importance of active participation in administrative tribunal proceedings and clarifies the appropriate remedial paths for aggrieved parties. This article will delve into the background of the case, analyse the Court's reasoning, and discuss the practical consequences for legal professionals navigating the intersection of consumer protection and insolvency law.

The genesis of this dispute lies in the business practices of CMR Group (Pty) Ltd (CMR), a registered credit provider operating a controversial “pawn your car and still drive it” scheme. The National Credit Regulator (NCR) investigated CMR, alleging multiple contraventions of the NCA, including charging excessive interest, failing to conduct affordability assessments, and imposing prohibited charges. Consequently, the NCR referred the matter to the NCT, seeking various declarations and remedial orders, including the cancellation of CMR's credit provider registration and the reimbursement of consumers.

CMR initially opposed the application, filing an answering affidavit. However, the company was subsequently placed under voluntary winding-up, leading to the appointment of Jacolien Barnard N.O. and Beatrice Linda Mills N.O. as joint liquidators. A hearing before the NCT was scheduled, and despite receiving notice, Ms. Barnard, due to an administrative error, failed to attend. The NCT proceeded with the hearing in the liquidators' absence, in accordance with its rules, and issued comprehensive remedial orders against CMR (in liquidation). These orders included the cancellation of CMR's registration, interdicts against further credit transactions, declarations of reckless credit agreements, and mandates for consumer reimbursement.

Aggrieved by these orders, particularly those perceived to interfere with their statutory duties as liquidators, Barnard N.O. and Mills N.O. sought to appeal to the High Court in terms of section 148(2)(b) of the NCA. This section permits “a participant in a hearing before the Tribunal” to appeal a decision to the High Court. The High Court and subsequently the Supreme Court of Appeal (SCA) both dismissed the appeal, holding that the liquidators did not qualify as “participants in a hearing” because they had not actively attended or engaged during the actual hearing, despite having filed an answering affidavit. This set the stage for the Constitutional Court to definitively interpret the jurisdictional requirement for appeals from the NCT.

The core legal question before the Constitutional Court was the interpretation of the phrase “participant in a hearing” in section 148(2)(b) of the NCA. The liquidators contended for a broad interpretation, arguing that the filing of an answering affidavit and notification of intent to attend should suffice for participation. The NCR, conversely, argued for a narrower construction, asserting that actual engagement at the hearing stage was necessary, and that the appropriate remedy for an absent party was a rescission application under section 165 of the NCA.

The Constitutional Court, in its majority judgment penned by Kollapen J, ultimately sided with the NCR, dismissing the appeal. The Court affirmed that the term “participant in a hearing” implies active engagement at the hearing stage, distinguishing it from merely filing papers in the preliminary phases of the proceedings. This interpretation aligns with the procedural integrity of administrative tribunals, where the opportunity to present arguments, cross-examine, and respond to evidence is central to the concept of a 'hearing'. The Court effectively held that while the liquidators were parties to the proceedings, their absence from the hearing meant they were not 'participants' in the sense required for an appeal under section 148(2)(b).

Crucially, the majority judgment highlighted that the NCA provides an alternative remedy for parties in the liquidators' position: a rescission application under section 165. This mechanism allows for the setting aside of an order granted in the absence of a party, provided certain conditions are met, such as showing good cause. The Court implicitly reinforced the principle that specific statutory remedies should be pursued where available, rather than attempting to force a square peg into a round hole by misinterpreting appeal provisions. The minority judgment, authored by Opperman AJ, offered a different perspective, arguing for a broader interpretation of “participant” that would include parties whose affidavits were considered by the Tribunal, even if they were not physically present. This divergence underscores the complexity of interpreting procedural statutes, particularly when balancing access to justice with the need for orderly administrative processes.

This judgment has significant implications for the interplay between the NCA and insolvency law. While the case did not directly address the substantive conflict between debt review and sequestration (which has been a subject of extensive academic debate and prior case law like *Investec Bank Ltd v Mutemeri* and *Naidoo v ABSA Bank*), it indirectly touches upon the procedural challenges faced by liquidators when dealing with entities subject to consumer protection measures. The NCT's remedial orders against CMR, an entity in liquidation, highlight the potential for overlapping jurisdictions and the need for liquidators to be acutely aware of their procedural rights and obligations within the consumer protection framework. The decision effectively channels parties who miss a hearing towards rescission, ensuring that the appeal mechanism is reserved for those who actively engaged in the decision-making process being challenged.

The Constitutional Court's decision in *Barnard NNO v National Consumer Tribunal and Another* serves as a critical reminder to legal practitioners regarding the strict interpretation of procedural requirements for appeals from administrative tribunals. The ruling firmly establishes that for a party to be considered a “participant in a hearing” under section 148(2)(b) of the NCA, active engagement at the hearing stage is indispensable; merely filing papers is insufficient. This clarification is vital for attorneys representing credit providers, consumers, or, as in this case, liquidators, who find themselves before the NCT.

Practitioners must advise clients that if they are unable to attend an NCT hearing, or if an order is granted in their absence, the appropriate course of action is generally to seek rescission of the order in terms of section 165 of the NCA, rather than attempting to appeal. This judgment reinforces the importance of diligent attendance and active participation in all stages of administrative proceedings to preserve the right to appeal. Failure to do so may result in appeals being struck down on jurisdictional grounds, incurring unnecessary costs and delays. Attorneys should therefore meticulously manage their diaries and ensure robust representation at NCT hearings to avoid being procedurally barred from challenging adverse decisions.