IN THE NATIONAL CONSUMER TRIBUNAL

Transcription

1 IN THE NATIONAL CONSUMER TRIBUNAL HELD AT CENTURION Case number: (1) In the matter between: NOZIPHO ANGEL LANGA APPLICANT and LORENCO LEWIS 1 ST RESPONDENT AFRICAN BANK LIMITED FOSCHINI RETAIL GROUP (PTY) LTD CAPFIN (PTY) LTD BAYPORT SECURITIZA TION (RF) LTD NEDBANK LIMITED 2ND RESPONDENT JRD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT Coram: Mr. A. Potwana Prof J Maseko Ms. H. Devraj Date of Consideration - Presiding Member Executive Chairperson I Tribunal Member Tribunal Member 11 September 2017 JUDGMENT AND REASONS THE PARTIES

2 Judgment and Reasons 1. The Applicant is Nozipho Angel Langa; an adult female, with resident address at Emkhindini Area of Melmoth, in the Kwazulu/Natal Province. She is also a consumer as defined in section 1 of the National Credit Act, No 34 of 2005 rthe NCA"). 2. At the hearing of the 11 1 h September 2017; the Applicant did not appear in person but was represented by Du Toit Attorneys of Bench Mark Building, 1 Larch Nook Street, Zwartkop in Centurion. 3. The First Respondent is Mr. Lorenco Lewis, a Debt Counsellor (as defined in section 1 of the National Credit Act, No 34 of 2005 (Uthe NCA"). He is registered as such by the National Credit Regulator (NCR) with Registration Number NCRDC The second; third, fourth; fifth and sixth Respondents are all Credit Providers bound in a consent order issued by this Tribunal dated 18 August Such consent order was for a debt re-arrangement agreement to be made an order of the Tribunal in terms of section 138 of the NCA. 5. None of the Respondents were represented at the hearing of the 11th September 2017, and none appeared. JURISDICTION 6. The Applicant lodged an application with the Tribunal in terms of section 165 of the NCA. This section deals with applications for the varying or rescission of an order granted by a panel of the Tribunal. And in this case, the application was against an order issued by a single member of the Tribunal in accordance with section 138(1) of the NCA; read with section 86(8)(a) of the Act 7. The Tribunal has jurisdiction to hear this matter as one lodged under section 165 of the Act, but provided it meets the standard that that section prescribes in peremptory terms. ISSUES TO BE DECIDED 8. In an application lodged under section 165 of the Act; the Tribunal must determine whether there are grounds to rescind or vary the order granted on 18 August And in the advent that the Tribunal finds in the affirmative, the Tribunal is to rescind or vary the said Order as prayed in the application under consideration. But it first has to be clear as to which of these two alternatives is the Applicant seeking as relief as it cannot be both of them. A rescission; for instance, eliminates the order under consideration; while a variation merely changes it - in plain language. The Applicant ticked both alternatives on the Form Tl.r30A; which on its own made this matter not determinable. 2

3 BACKGROUND Judgment and Reasons 9. After the consumer had applied, through the Debt Counsellor, in terms of section 138(1) of the NGA, to have a debt re-arrangement agreement made an order of the Tribunal, in 2016, the order was granted by Adv. John Simpson - Tribunal Member on 18 August The application was considered by a single member of the Tribunal (as already stated), and the order was granted on 18 August 2015; under the case reference NCT/24307/2015/138(1 )(P) 11. On 11 May 2017; the Applicant lodged an application with the Tribunal for the rescission as well as the variation of the abovementioned order granted on 18 August This Ruling is a direct result and response to this said application for variation and rescission of the said order. 12. The Respondents in the matter did not oppose the application in its current form. And yet, proof of service has been found in the case file to having been made via on the 11 May And since the matter was not opposed, it was necessary to decide whether it could proceed without their attendance. CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS 13. On the 11 May 2017 the Applicant filed the application in terms of section 165 of the Act with the Tribunal. 14. The notice correctly reminded the Respondents to respond within 15 days by serving an answering affidavit on the Applicants, in line with the applicable rules of the Tribunal. The Respondents however failed or elected not to do so. 15. The matter was then set down for hearing and adjudication by this panel of the Tribunal. 16. In terms of Rule 24 (3) of the Tribunal Rules, the Tribunal may make a default order after it has considered the necessary evidence and if it is satisfied that the application documents were adequately served. 17. The Tribunal was satisfied that the application documents were adequately served and decided that the matter should continue because there were no bases for staying the hearing. THE GROUNDS OF THE VARIATION/RESCISSION 18. In the body of the application, it was not submitted on behalf of the Applicant that the order under consideration had been erroneously sought or granted in the absence of the Applicant. 3

4 19. The Applicant; instead; avers in Para 2.2 page 12 of the Application, that: "... the primary reason for my application was due to the fact that I had been unable to pay my creditors as my debts exceed my affordability... " 20. At Para 2.3, of the application, the Applicant also asserts that: "To date, my financial circumstances have dramatically improved." Judgment and Reasons 21. The Applicant therefore seems to apply that the order granted on 18 August 2015, be rescinded or varied because she now is able to meet her obligations. APPLICABLE LAW 22. Section 165 of the NCA provides that: "The Tribunal, acting of its own accord or on application by a person affected by a decision or order, may vary or rescind its decision or order - (a) erroneously sought or granted in the absence of a party affected by it; (b) in which there is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or (c) Made or granted as a result of a mistake common to all the parties to the proceedings". CONSIDERATION OF THE FACTS AND THE LAW 23. In interpreting the question of an order that is "erroneously sought or granted"; the Tribunal has previously 1, decided similar matters relying on the decisions and Rules of the High court, which were consulted. 24. Rule 42(1)(a} of the High Court provides that: "The court may, in addition to any powers it may have, mero motu or upon the application of any party affected, rescind or vary: an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby... " 1 Ned bank Limited v M.A. Rafutho and Others NCT/21963/2015/165 4

5 Judgment and Reasons NCT /84265/2017 / This rule was described, in the matter of Promeria Drukkers & Uitgewers {Edms) Bpk2 as "a procedural step designed to correct expeditiously an obviously wrong judgment or order."3 26. The court even opined that: "Relief will be granted under this Rule if there was an irregularity in the proceedings; if the court lacked legal competence to have made the order; and if the Court, at the time that the order was made, was unaware of facts which, if known to it, would have precluded the granting of the order ( see Nyingwa v Moolman)4." 27. There is very little guidance to be found in case law regarding the term "erroneously sought". The term uerroneously sought" is also not defined in the Legal Dictionary of Words and Phrases. 28. In the matter of Nyingwa v Moo/man N the court held as follows: ult therefore seems that a judgement has been erroneously granted if there existed at the time of its issue, a fact of which the Judge was unaware, which would have precluded the granting of the judgment and which would have induced the Judge, if he had been aware of it, not to grant the judgment." 29. A similar decision was made in the matter of Naidoo and Another v Mat/ala N.O. and Others6 in which the court referred to Nyingwa and held that: uln general terms a judgment is erroneously granted if there existed at the time of its issue a fact of which the judge was unaware, which would have precluded the granting of the judgment and which would have induced the judge, if aware of it, not to grant the judgment" 30. The court in the Naidoo-matter further held that: (4) SA 411 (C) per Erasmus Jin Bakhoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471 E-F; see also First National Bank of SA v Van Rensburg NO and Others: In re First National Bank of SA v Jurgens and Others 1994 (1) SA 677 (T) at 618C See footnote 4 below 1993 (2) SA 508 (TKGD) (1) SA 143 5

6 "It follows that if material facts are not disclosed in an ex parte application - see Schlesinger v Schlesinger 1979 (4) SA 342 (W)... the order will be erroneously granted." 31. It was said in the matter of Bakoven Limited v JG Howse7 that: "Once it is held that the judgment in question was erroneously granted, it is not necessary for an Applicant (in the position of the present Defendant) to show "good cause" in the context of an explanation for the default and a bona fide defence." Judgment and Reasons 32. Although section 165 of the NCA is headed "variation of order" the section lays down the circumstances under which an order may be varied or rescinded (My own emphasis). 33. From this it is clear that the Tribunal is not only entitled to vary an order, it may also rescind an order provided the circumstances set out in s165 are present. And the prayer in this application is for both a rescission as well as a variation of the order dated 18 August This is the framing of the Application, despite the fact the rescission and variation are provided for in the alternative as they cannot occur simultaneously. 34. Taking into consideration the facts of this particular matter, the Tribunal is of the view that the order was not erroneously sought by the debt counsellor because the motivation and grounds do not allege this. Nor does the evidence submitted purport to claim or imply this in any shape or form. 35. Section 86 (8) provides that if the consumer and each credit provider accepts that proposal the debt counsellor may record that proposal in the form of an order and file it as a consent order with the Tribunal in terms of section 138. And this is how the order under consideration had been brought about. 36. It has already been pointed out above that the Applicant ticked both alternatives (of rescission and variation) on the Form Tl.r30A; which rendered the application indeterminable. And the reasons for this indeterminacy, include: (1) The fact that only a matter before the Tribunal can be determined by the Tribunal. And the failure to decide which of the alternatives between rescission and variation, is to be determined, means there is no mater placed before the Tribunal to determine under section 165( 1) of the Act. (2) Even if the Applicant were to be allowed to make an election between the two alternative remedies, at the hearing stage, this would result in an irregularity. The (2) SA 466 (E) 6

7 Judgment and Reasons irregularity would emanate from the fact that the case that the Respondents were supposed to have answered would not have been the same as that which would result in the oral amendment of such remedy made at the hearing. This is in terms of the audi alteram partem rule; which needs no further elaboration. 37. It is quite trite that the ground on which the Applicant, in casu, seeks a rescission and a variation of the given order, does not fall within the competent grounds prescribed under section 165 of the Act. ORDER 38. Under the circumstances and for the reasons stated above, the Tribunal orders that: ( 1 ) The Application for the rescission and variation of the order dated 18 August 2015, under case reference number NCT/24307/2015/138(1)(P); is hereby refused. (2) The order granted by the Tribunal on 18 August 2015; under case number NCT/23407/2015/138(1) (P) remains in force. (3) There is no order as to costs and none has been requested. Thus; handed down in Centurion this 11th Day of September 2017 PROF. JOSEPH M. MASEKO EXECUTIVE CHAIRPERSON Authorised for issue by National Consumer Tribunal Case Number: ~ -'61.f-~ b5 ~C.J 7 - )kt' 0.,.,~off~ O"\ -13 " Nation;! Consumer Tribunal Ground Floor. Buildlng B Lakc!icld Office P~rk 272 West Avenue, Centurion nation al cans.umcr tribunal I With Mr. A. Potwana (Presiding Member) and Ms. H. Devraj (Tribunal Member) concurring. 7