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 Case Number: NCT/15054/2014/165(1) (P) NCA In the matter between: DIANNA JANE MARTIN MARTINUS JOHN MARTIN 1ST APPLICANT 2ND APPLICANT And ABSA BANK LIMITED NEDBANK LIMITED AFRICAN BANK LIMITED DIRECT AXIS a division of FIRST RAND BANK LIMITED 1sr RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT Coram: Adv J Simpson Ms L Best Adv N Sephoti Presiding member Member Member Date of hearing 30 November 2015 JUDGMENT AND REASONS APPLICANTS 1. The Applicants are Dianna Jane Martin and Martinus John Martin, residing at 69 Conistan Ave, Conistan Park, Steenberg (hereinafter referred to as the "Applicants"). 2. At the hearing the Applicants were represented by Mr Zimmerman, an attorney from Liddle and Associates.
Manin v 111eooanK ana omers 1 :iu::i'i 3. Mr Zimmerman appeared before the Tribunal via Skype audio and video transmission. RESPONDENT 4. The 2nd Respondent is Nedbank Limited, a registered credit provider with the National Credit Regulator (hereinafter referred to as "the Respondent"). 5. At the hearing the 2nd Respondent was represented by Ms Hill of VHIAttorneys. 6. There was no appearance at the hearing by any of the other Respondents in this matter APPLICATION TYPE 7. The Applicants brought an application in terms of Section 165(1) of the National Credit Act, 34 of 2005 (hereinafter referred to as "the Act") to the Tribunal to vary the debt re-arrangement order with case number NCT/2891/2011/138(1)(P) granted to the 1st Applicant, which was made an order of the Tribunal on 25 March 2012. BACKGROUND 8. The 1st Applicant applied to the Tribunalfor a debt re-arrangement to be confirmed as an order of the Tribunal in terms of Section 138(1) of the Act, under case number NCT/2891/2011/138(1)(P). Presiding member, Adv. F.K Manamela, confirmed the debt re-arrangement as an order of the Tribunalon 25 March 2012. 9. On 24 February 2014, the Applicants brought an application in terms of Section 165(1) to vary the debt-rearrangement that was made an order of the Tribunal on 25 March 2012. 10. The variation sought was that the 2nd Applicant be included as the 2nd Applicant in the consent order NCT/2891/2011/138(1)(?) granted by Adv. F.K Manamela as the Presiding member, and that the credit agreement between the 2nd Applicant and the Respondent, home-loan account number [8...], further be included in the said consent order. Page 2of 10
Marun v NeooanK ana omers 1ouo'I 11. The basis of the Applicants' application, as contained in the application form, can be summarised as follows : 11.1 Being married in community of property, the Applicants' joint estate should have been placed under debt review in the initial instance, and this was omitted from the original TribunalOrder sought; 11.2 The order sought omitted the details of the 2nd Applicant, and in addition to this, the 2nd Applicant's home-loan account number [8...] with the Respondent was also omitted from the debt review process. 12. The variationis thus sought on the grounds that the Tribunal Order: 12.1 Was erroneously sought in the 2nd Applicant's absence;and 12.2 Contains an omission, being the credit agreement (home-loan account number [8...]) between the 2nd Applicant and the Respondent. APPLICABLE SECTIONS OF THEACT 13. The application is brought in terms of Section 165 of the Act, which states the following: "Variation of order 165. 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 theproceedings ". Page 3of 10
Martin v NeooanK ana omers 1:iuo-. THE HEARING 14. The matter was heard on 30 November 2015 in Centurion. PRELIMINARY POINTS 15. On the papers, the Respondent had filed an Opposing Affidavit, opposing the application and raising a point in limine that the credit agreement home-loan account number [8...] be excluded from the debt review process and any related processes, including the current variation application, as this was already subject to legal proceedings in the Western Cape High Court. 16. At the start of the hearing, the Applicants' representative addressed the Tribunal Panel and indicated that the High Court had subsequently issued an order that the property against which the home-loan account number [8...] was secured became executable. In terms of this High Court order (number 22575), the home loan which is part of the initial variation application must now be excluded from the variation. 17. Accordingly, the Applicants withdrew that part of the Application - that the home-loan be included under the varied order. 18. The Respondent's representative confirmed that as a result of this withdrawal, the Respondent does not oppose the Applicants' amended variation application, namely that the 2nd Respondent be included in the original consent order that was granted. Page 4of 10
Mamn v r1eooank ano otners 1:iv:>4 19. The Tribunal thus proceeded to hear the Applicants' application to include the 2 d Applicant in the order. APPLICANTS' SUBMISSION 20. The basis of the amended application can be summarised as follows: 20.1. The Applicants are married in community of property and have a joint estate. As such the initial debt re-arrangement application should have been a joint application by both Applicants. The Applicants aver that not to have included the 2nd Applicant in the initial debt re-arrangement application was an error on the part of the debt counsellor who assisted them to apply to the Tribunal and seek the initial debt rearrangement order. 20.2. Being married in community of property, the 1st Applicant in fact did not have the legal capacity to bring the debt re-arrangement application on her own as the single applicant in the first place. 20.3. The Applicants submit that the basis for the variation is s165(a),namely that the order...was erroneously sought or granted in the absence of a party affected by it..., in this instance the 2nd Applicant. Further that being married in community of property and the order having been granted in the absence of the 2nd Applicant, s165(c) is applicable in that the order was...made or granted as a result of a mistake common to all the parties to the proceedings... 20.4. Finally, no-one would be prejudiced or be adversely affected by the joinder of the 2nd Applicant to the original debt rearrangement that was granted in 2012. There will be no direct impact on the credit providers who are Respondents in this application as the Applicants have been making debt re-payments each and every month and in the amounts stipulated in the agreements and incorporated into the initial debt re-arrangement order issued by the Tribunal. Variation of this initial order to include the 2nd Applicant would ensure that the order is in complete compliance with the law. Page 5of 10
Mamn v NeooanK ana omers 1::iu::i'I CONSIDERATION OF THE LAW APPLICABLE TO THE EVIDENCE 21. Section 165 of the Act provides for a rescission or variation of an order granted by the Tribunal, the Tribunal "acting of its own accord or on application by a person affected by a decision or order." Section 165 further prescribes that such a rescission or variation may only be granted in the following instances: 21.1. When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it; 21.2. There is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or 21.3. Made or granted as a result of a mistake common to all the parties to the proceedings. These grounds will be detailed under separate headings: 22. Erroneously sought or granted The courts have held that in an application for variation or rescission of an order, the Applicant bears the onus of establishing that the order was erroneously granted. 1 The court considered the meaning of the words "erroneously granted". This is dealt with in the Bakoven-case 2 where it was stated: An order or judgment is 'erroneously granted' when the Court commits an 'error' in the sense of 'a mistake in a matter of law appearing on the proceedings of a Court of record' (The Shorter Oxford Dictionary). It follows that a Court in deciding whether a judgment was 'erroneously granted' is, like a Court of Appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the common law, the applicant need not show 'good cause' in the sense of an explanation for his default and a bona fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala and Another v Pierre 1979 (4) SA 27 (T) at 1 Bakoven Ltd v G J Howes (Ptv) Ltd 1990(2) SA 446 at page 469 B. 2 Bakoven Ltd v G J Howes (Ptv) Ltd 1990(2) SA 446. Page 6of 10
Manin v NeooanK ana omers 1:iu:i11 30C-D). Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission. Accordingly the words "erroneously granted" mean that the Tribunal must have committed an error or mistake in law. The court, in the matter of First National Bank of SA Bpk v Jurgens and Another, 3 the learned Judge Leveson stated: That leaves me only with the task of considering para (a) of the same sub-rule which makes provision for rescission or variation of an order or judgment erroneously sought or erroneously granted. I look first at the remedy available before the rule came into force. Ordinarily a court only had power to amend or vary its judgment if the court had been approached to rectify the judgment before the Court had risen. That relief was available at common law and with the only relief that could be obtained until the provisions of rule 42 were enacted. The proposition at common law is simply that once a court has risen it has no power to vary the judgment for it is functus officio. Firestone South Africa (Ply) Ltd v Genticuro AG, 1977(4) SA 298 (A). A principal judgment could be supplemented if an accessory had been inadvertently omitted, provided that the court was approached within a reasonable time. Here the judgment was granted two years ago and a reasonable time has expired. The question then is whether the limited relief at common law has been extended by this provision. In the first place I must express considerable doubt that power exists in the Rules Board to amend the common law by the creation of a Rule.Leaving aside that proposition, however, the question that arises is whether the present case is one of a judgment 'erroneously sought or granted', those being the words used in Rule 42(1)(a). The ordinary meaning of 'erroneous' is 'mistaken' or 'incorrect'. I do not consider that the judgment was 'mistakenly sought or 'incorrectly sought'. The relief accorded to the plaintiff was precisely the relief that its counsel requested. The complaint now is that there is an omission of an accessory feature from the judgment. I am unable to perceive how an omission can be categorised as something erroneously sought or erroneously granted. I consider that the rule only has operation where the applicant has sought an order different from that to which it was entitled under its cause of action as pleaded. Failure to mention a form of relief which would otherwise be included in the relief granted is not in my opinion such an error. 3 (1993(1) SA 245 at page 246 to 247. Page 7of 10
Manin v NeooanK ana omers 1:iu:i11 23. Ambiguity. or an obvious error or omission. but only to the extent of correcting that ambiguity, error or omission This ground for variation is clearly applicable in instances where an order granted by the Tribunal is vague or uncertain, or an obvious error occurred in the granting thereof. The applicable provision is unambiguous in stating that the order will only be varied to the extent of such an ambiguity, error or omission. 24. Mistakes common to all the parties to the proceedings. The applicable provision relates to an error which occurred in the granting of the order and requires that the error is common to all the parties. CONSIDERATION OF THE EVIDENCE 25. Section 138 of the Act, read with Section 86(8)(a), provides that if a debt counsellor makes a recommendation in terms of section 86(7)(b), and the consumer and each credit provider concerned accept the 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 of the Act. On this basis the Tribunal then confirms such a debt re.-arrangement as an Order of the Tribunal. 26. The evidence before the Tribunal, is that the 1st Applicant was the sole applicant in the initial debt re.-arrangement order filed with the Tribunal in terms of Section 138 of the Act. The 2nd Applicant was not included in the application and there was no indication in the application of the 1st Applicant being married. The Tribunal member, on 25 March 2012, thereby granted the order, on the basis of the information provided and confirmed the order that was sought by the 1st Applicant. There was no ambiguity, obvious error or omission when the order was granted. Therefore -Section 165 (b) is not applicable in this matter. application for the debt review order was erroneously sought by the debt counsellor. The debt 27. It can however be argued that Section 165 (a) may be applicable to this matter in that the Page 8of 10
Manin v r.eooank ano omers 1ouo'I counsellor should never have applied for an order where only the one party to a marriage in community of property was included. 28. The Tribunal was however not comfortable with the possibility of varying the existing order to include a party that was never included in the original application. This would offend against the the audi alteram partem principle. The correct way of including an additional party to an application would be by an application for joinder before the order is granted. In this instance, this did not happen. 29. A variation of the initial order to include the 2nc1 Applicant would also not sufficiently meet the very specific procedures set out in s138 read with s86 of the Act. These procedures serve to ensure that all the required parties are notified and agree before the order can be granted by the Tribunal. 30. During the hearing, the Tribunal canvassed the possibility of rescinding the consent order with the parties before it. A rescission would allow for the 1st and 2nd Applicants to jointly file a new application in terms of s138 of the Act. Neither of the representatives for the Applicants or for the Respondent had any objection to this proposal, even though rescission was not part of the original application currently before the Tribunal. 31. The compelling reason for the Tribunal to decide to rescind the original consent order is that parties married in community of property, as is the case of the Applicants, have a joint estate. One party to such a marriage cannot be placed under a debt review individually. Both parties to the marriage need to be jointly placed under debt review. Therefore the most logical process to follow is to rescind the order and allow the Applicants to file a fresh application in both their names. 32. Section 165 provides that rescission or variation of Tribunal orders may be granted in specific circumstances. Where the requirements for variation or rescission have been met, as is the case in this matter, the Tribunal is empowered to rescind its orders irrespective of whether the parties have applied for a rescission. Page 9of 10
Mamn v NeooanK ana omers 1:iuoq ORDER 33. Accordingly, the Tribunal makes the following order:- 32.1 The application to vary the order NCT/2891/2011/138(1)(P) granted to the 1s1 Respondent on 25 March 2012, is hereby dismissed. 32.2 The order NCT/2891/2011/138(1)(P) granted to the 1st Respondent on 25 March 2012 is hereby rescinded. 32.3 The 1st and 2nd Applicants are at liberty to lodge an new application for a consent order. 32.4 No order as to costs. DATED ON THIS 19 DAY OF DECEMBER 2015 [Signed] Ms L. Best Tribunal Member Adv J Simpson and Adv Sephoti concurring National consumer Tribunal Ground Floor, Building B Lakefield Office Park 272 West Avenue, Centurion, 0157 www.thenct,co,za national consumer tribunal Page 10of 10