IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION HANS REINHARD PETTENBURGER-PERWALD OBO JOHANNES PETRUS VAN VUUREN

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1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION In the matter between: Case number: (P) NCA HANS REINHARD PETTENBURGER-PERWALD OBO JOHANNES PETRUS VAN VUUREN ID NO [ ] APPELLANT and NEDBANK LIMITED ABSA BANK LIMITED IEMAS FINANCIAL SERVICES TRUWORTHS LIMITED EDCON (PTY) LIMITED FIRST RESPONDENT SECOND RESPONDENT THIRD RESPONDENT FOURTH RESPONDENT FIFTH RESPONDENT Coram: Adv J Simpson Presiding Member Ms L Best Panel Member Ms H Devraj Panel Member Date of Hearing 25 August 2014 JUDGMENT AND REASONS APPELLANT 1. The Appellant is Hans Reinhard Pettenburger-Perwald, a major male registered as a debt counsellor in terms of the National Credit Act 34 of 2005 ( the Act ) with registration number NRDC49 (hereinafter

2 referred to as the Appellant ). The Appellant lodged the appeal on behalf of Johannes Petrus Van Vuuren, a major male (hereinafter referred to as Mr Van Vuuren ). 2. At the hearing of the appeal an employee of the Appellant, Mr Rynhard De Lange (hereinafter referred to as Mr De Lange ), appeared on behalf of the Appellant via Skype video and audio transmission. RESPONDENTS 3. The Respondents are Nedbank Limited, ABSA Bank Limited, IEMAS Financial Services, Truworths Limited and Edcon (Pty) Limited (hereinafter referred to as the Respondents ). 4. At the hearing of the matter there was no appearance by any of the Respondents or any representative on their behalf. APPEAL 5. The Appellant brought an appeal in terms of Section 148(1) of the Act, against a decision of a single member. 6. The appeal was heard on 25 August 2014 by a full panel of the Tribunal. JURISDICTION 7. The Tribunal has jurisdiction to hear this matter in terms of Section 148 of the Act in that a party may appeal a decision by a single member to a full panel of the Tribunal. BACKGROUND 8. On 21 November 2013, the Appellant applied to the Tribunal for a debt re-arrangement agreement to be confirmed as an order of the Tribunal in terms of Section 138 of the Act, under case number NCT/12010/2013/138(1)(P). 9. On 29 April 2014, the debt re-arrangement agreement application was considered by a single member, Professor Dumisa, who then refused to grant the application. Professor Dumisa stated the following reasons for the basis of the refusal:- Page 2 of 6

3 The balance as at the date of Acceptance for IEMAS Account No on the draft consent order signed by the applicant, does not correspond with the workings consented to by the credit provider. It is not clear how Nedbank has arrived at the final repayment figure of R based on the interest rate of 8.50% per annum. This amount is excessive on the outstanding debt of R According to the appeal that was filed by the Appellant, the grounds for appeal were that the refusal was based on the IEMAS account not corresponding with the acceptance letter and yet a letter of complete filing was received. Furthermore, the Appellent states that the Tribunal member makes reference to a Nedbank final instalment of R , however there is no such installment on the draft consent order that was filed with the Tribunal. THE HEARING 11. Mr De Lange, in his submission, indicated to the Tribunal that he was not sure how the Tribunal Member arrived at the amount of R for Nedbank as this amount is not reflected on the draft consent order, nor is it reflected on the acceptance letter from Nedbank. 12. Mr De Lange submitted that the balance for IEMAS, as submitted on the second draft consent order that was filed with the Tribunal, does contain the correct amount as per the acceptance letter of the credit provider. 13. Mr De Lange finally submitted that they had received a notice of complete filing from the Registrar and therefore could accept that the application submitted was complete and correct. CONSIDERATION OF THE EVIDENCE 14. The Tribunal takes note of the submission that a notice of complete filing was issued by the Registrar. However, such a notice does not bind the Tribunal in its adjudication of a matter and the final decision that is reached. A notice of complete filing is an administrative function performed by the Registrar s office which only considers the formal filing requirements as set down in Table 2 of the Rules of the Tribunal 1. The Tribunal, in reaching a decision in a matter, considers all the relevant procedural and substantive legal issues at that point. 1 Rules for the conduct of matters before the National Consumer Tribunal, Page 3 of 6

4 15. The Tribunal considered the acceptance letter from Nedbank and compared it to the second draft consent order that was filed. The Tribunal cannot find any errors in this regard. The Tribunal is not certain how Professor Dumisa arrived at an amount of R as this amount is not reflected anywhere in the documents. It appears to the Tribunal that Professor Dumisa may have used the monthly payments and the interest rate indicated on the acceptance letter from Nedbank to calculate the total amount the consumer would pay on the loan. Professor Dumisa therefore appears to be questioning whether the Agreement on the Nedbank loan would not contravene the in duplum rule as reflected in Section 103(5) of the Act. 16. Section 103(5) of the Act states the following Despite any provision of the common law or a credit agreement to the contrary, the amounts contemplated in section 101(1)(b) to (g) that accrue during the time that a consumer is in default under the credit agreement may not, in aggregate, exceed the unpaid balance of the principal debt under that credit agreement as at the time that the default occurs. 17. The Tribunal did not hear any argument from any parties regarding Section 103(5) and no submissions were made in this regard on the Appeal application. The Tribunal is further not aware of any case law specifically dealing with the applicability of Section 103(5) to debt re-arrangement agreements. The Tribunal will therefore confine itself to noting that Section 103(5) contains numerous references to the word default. According to the section, the amounts that accrue during the time that a consumer is in default may not exceed the unpaid balance of the principle debt. In the context of a debt re-arrangement agreement being made an order of the Tribunal in terms of Section 86(8) of the Act, the consumer has reached an agreement with the credit provider regarding the payment of the debt. The consumer is therefore not in default while paying the debt in accordance with the agreement and order of the Tribunal. Section 103(5) would therefore not appear to find application in an instance of this nature. 18. The Tribunal notes that a second draft consent order was filed on 5 December 2013 as there were inaccurate amounts contained in the first draft. It appears that Professor Dumisa only considered the first draft and did not see the second draft consent order that was filed. While the balance on the IEMAS loan was incorrect on the first draft it was subsequently corrected in the second draft. However the matter does not end there. The acceptance letter from IEMAS also makes reference to separate service fees or linked insurance to the amount of R being payable on the loan. This fee is reflected as a separate payment in addition to the monthly instalment of R The second draft Page 4 of 6

5 consent order that was filed with the Tribunal only makes reference to the monthly instalment amount and does not refer to the separate fee that is payable In terms of Section 86(8) of the Act, the consumer and each credit provider concerned accept that proposal, the debt counsellor must record the proposal in the form of an order, and if it is consented to by the consumer and each credit provider concerned, file it as a consent order in terms of Section 138. Furthermore, in terms of the Rules of the Tribunal, there needs to be a signed copy of the agreement reached between the parties to the dispute resolution, formulated as an order of the Tribunal. The second draft consent order that was filed does not capture the service fee/insurance linked amount as per the acceptance letter from IEMAS and therefore cannot be regarded as constituting an agreement between the parties. CONCLUSION 20. The Tribunal finds that the basis for the refusal for the application for a consent order by Prof Dumisa can be set aside. 21. However, the Tribunal is unable to replace the refusal by granting the consent order applied for, as the acceptance letter from IEMAS does not correspond with the second draft consent order that was filed with the Tribunal. ORDER Accordingly, the Tribunal makes the following order: 22. The appeal against the basis of the refusal of the application by the Presiding Member succeeds. 23. The refusal of the application for the consent order however remains. 24. The Appellant is at liberty to file an entirely new application to have the debt re-arrangement agreement made an order of the Tribunal. Furthermore, the draft consent order submitted with the new application should correctly and clearly state the monthly instalment as well as the service fee/insurance linked amount as per the acceptance letter from IEMAS. 25. No order is made as to costs. Page 5 of 6

6 DATED ON THIS 08 th DAY OF SEPTEMBER 2014 [signed] Ms H Devraj Member Adv J Simpson (Presiding Member) and Ms L Best (Member) concurring. Page 6 of 6