Absa Bank Limited v Senay Sager and Others (NCT/112462/2018/165) [2018] ZANCT 126 (20 September 2018)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/112462/2018/165

In the matter between:

ABSA

BANK

LIMITED

APPLICANT

and

SENAY SAGER (NCRDC: 2484)

FIRST

RESPONDENT

NONHLANHLA

CORAH NXELE

SECOND

RESPONDENT

SIFISO

LUCKY MTHETHWA

THIRD

RESPONDENT

CAPITEC

BANK

LIMITED

FOURTH RESPONDENT

DIRECT AXIS (SA) (PTY) LTD,

AGENT

FOR CALL

DIRECT

FIFTH

RESPONDENT

ON

BEHALF OF FIRSTRANO BANK LIMITED

DIRECT AXIS (SA) (PTY) LTD, ON BEHALF OF

FIRSTRAND

BANK LIMITED

SIXTH RESPONDENT

EDGARS, ON BEHALF OF EDCON (PTY) LTD

SEVENTH RESPONDENT

FINCHOICE (PTY)

LTD

EIGHTH RESPONDENT

FIRST NATIONAL BANK,

A

DIVISON OF FIRSTRAND BANK LIMITED

NINTH RESPONDENT

FOSCHINI RETAIL GROUP {PTY) LTD

TENTH RESPONDENT

THE

MOTOR FINANCE CORPORATION

(MFC),

A DIVISION OF NEDBANK LIMITED

ELEVENTH RESPONDENT

NEDBANK

LIMITED

TWELFTH RESPONDENT

SOUTHERN

VIEW FINANCE UK LIMITED

T/A

CAPFIN

THIRTEENTH RESPONDENT

TRUWORTHS

LIMITED

FOURTEENTH RESPONDENT

WOOLWORTHS (PTY) LTD

FIFTEENTH RESPONDENT

Coram:

Adv J Simpson - Presiding Tribunal Member

Ms H Devraj -

Tribunal Member

Mr. A Potwana - Tribunal Member

Date of Hearing - 18 September 2018

Date of judgment - 20 September 2018

JUDGMENT

AND REASONS

APPLICANT

1. The Applicant in this matter is ABSA Bank Limited. a registered credit provider (hereinafter referred to as "ASSA" or the "Applicant").

2. At the hearing the Applicant was represented by Mr T Sehlabela of Hammond Pole Attorneys.

RESPONDENTS

3. The 1ST Respondent is the debt counsellor for the 2nd and 3rd Respondents. The 2nd and 3rd Respondents are the consumers who are under debt review. The 4th to 15th Respondents are all registered credit providers (hereinafter collectively referred to as "the Respondents").

4. There was no appearance by any of the Respondents or any representatives on their behalf at the hearing.

APPLICATION

TYPE

5. The Applicant brought an application in terms of Section 165 of the National Credit Act[1] to the Tribunal to vary (or alternatively rescind) the debt rearrangement agreement, which was made an order of the Tribunal on 5 July 2016 under case number NCT/43218/2016/138.

CONSIDERATION

OF THE EVIDENCE ON A DEFAULT BASIS

6. On 2 August 2018, the Applicant filed the Section 165 application with the Tribunal. The Application was served on all the Respondents by registered post and by e-mail on 18 July 2018. The Registrar issued a notice of filing to the parties on 3 August 2018. A notice of set down was issued to all the parties on 29 August 2018.

7. In terms of Rule 13 of the Rules of the Tribuna1[2], the Respondents had to respond within 15 business days by serving an answering affidavit on the Applicant. The Respondents however failed to do so.

8. The Applicant did not file an application for a default order in terms of Rule 25(2.)

9. The Registrar however set the matter down for hearing on a default basis due to the pleadings being closed.

10. Rule 13(5) provides as follows:

"Any fact or allegation in the application or referral not specifically denied or admitted in the answering affidavit, will be deemed to have been admitted"

11. Therefore, in the absence of any answering affidavit filed by the Respondents, the Applicant's application and all of the allegations contained therein are deemed to be admitted.

12. The Tribunal is satisfied that the application was adequately served on the Respondents. The matter therefore proceeded on a default basis.

BACKGROUND

13. During 2016, the debt counsellor, Senay Sager, applied for an order confirming the debt restructuring agreement between the parties as an order of the Tribunal. The order was granted by the Tribunal on 5 July 2016 under case number NCT/43218/2016/138.

14. The Applicant submits that the order by the Tribunal contains three accounts relating to ABSA, namely, a home loan account and two credit card accounts. The order states that the interest rate which shall be applied to the home loan account will be 0% and the rate on the two credit accounts will be 0.01%. The Applicant submits that it accepted the debt counsellor's proposal for these rates due to an internal error. It never intended to accept these interest rates.

15. The Applicant approached the debt counsellor in October 2016 requesting him to agree to an increase in the interest rate to 9% and a new repayment plan on all the three accounts. The debt counsellor responded in January 2017 advising that ABSA could proceed with the request for variation. It appears ABSA is regarding this response by the debt counsellor as consent to the variation of the order.

16. The Applicant submits that the Applicant is being prejudiced by the fact that the loan will not be settled, due to the ever increasing

interest that is accumulating on the account. It therefore appears to the Tribunal that the Applicant is not adhering to the order of the Tribunal in relation to the interest rates of 0% and 0.01%.

17. The Applicant requests the Tribunal to vary the order in accordance with the new counter proposal it made as to the interest rate and the monthly instalments.

APPLICABLE

SECTIONS OF THE ACT

18. The application is brought in terms of Section 165(a) (b) and (c) 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 the proceedings".

19. The original Application was filed as a consent order application in terms of Section 138(1) of the Act, which provides that:

" If a matter has been-

(a) resolved through the ombud with jurisdiction, consumer court or alternatively;

(b) investigated by the National Credit Regulator, and the National Credit Regulator and the respondent agree to the proposed terms of an appropriate order. the Tribunal or a court, without hearing any evidence, may confirm that resolution or agreement as a consent order."

SECTION 165 OF THE ACT

20. Section 165 of the Act provides for a rescission or variation of an order granted by 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:

20.1 When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it;

20.2 There is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

20.3 Made or granted as a result of a mistake common to all the parties to the proceedings.

CONSIDERATION

OF THE EVIDENCE

Res judicata

21. While preparing for this hearing it was noticed that the application appeared very similar to a previous application dealt with. The Tribunal judgment in the matter of Absa Bank Limited v Sager and Others (NCTfl9160/2017/165) [2017] ZANCT 106 (21 September 2017) SAFLII was then found and noted. For ease of reference the judgment is attached as "Annexure A".

22. The parties, the facts and the submissions made are essentially the same in both matters. The application for a variation or alternatively a rescission of the order was denied in the previous judgment. It appears to the Tribunal that the Applicant in this matter merely

redrafted some aspects of its affidavit and launched this application on essentially the same facts as the previous application. Although the doctrine of Res judicata is more commonly raised as a defence, the Tribunal has inquisitorial powers and cannot idly sit by and ignore the fact that there was a previous judgment on the matter. It is in the interests of justice that the Tribunal note the previous judgment and raise it.

23. During the hearing the previous judgment was brought to the attention of Mr Sehlabela and he was requested to make submissions in this regard. He stated that he was only made aware of this previous judgment that morning and had not read it. He stated that he would however persist with his application. He submitted that the previous application was for a rescission of the order but the current application is for a variation. He further submitted that it would be in the interest of justice to grant the variation. He was unable to cite any case law reference to substantiate his argument.

24. In the matter of A B Chafer Motor Holdings CC v Fairweather (J1894/99) [2000] ZALC 101 (15 September 2000) SAFLII the court referred to the requisites of res judicata, as stated by Hoffman and Zeffertt the South African Law of Evidence 4th ed at 337 as follows:

“... that a prior final judgement had been given in proceedings involving {a) the same subject matter, (b) based on the same res or thing, (c) between the same parties, or, put in another way, if the cause of action has been finally litigated in the past by the parties, a later attempt by one of them to proceed against the other on the same cause, for the same relief, can be met by the exception res judicata."

25. The court further referred to the matter of National Union of Mine Workers v Elansfontein Colliery (Pty) Ltd (1999) 20 ILJ 878 (LC). In which the court held that the requisites for the plea of res judicata are:

"that the matter adjudicated upon, on which the defence relies must have been for the same cause, between the same parties, and the same thing must have been demanded: Horowitz v Brock and other 1998 (2) SA 160 (A) at 178 H tor.

26. It is very clear that the parties, the facts and the relief sought in the current application are in every material respect the same as those raised in the previous judgment. The doctrine of res judicata is applicable. The Tribunal has already adjudicated on and refused the application by the Applicant. There is no basis for the Tribunal to consider the same material facts, between the same parties for the same relief. Although there are circumstances where the doctrine of res judicata can be relaxed to some degree[3]; there is no basis for such an approach in this matter. Based on the fact that the current application (brought by the same firm of attorneys) does not contain any reference to the previous judgment of the Tribunal; it appears that the Applicant is determined to avoid complying with the Tribunal's order.

27. The Tribunal must note that it is very troubling that this application was processed and filed without any reference to the previous

judgment. This omission is of concern, whether the omission was intentional or due to an oversight. The negative implications of the Tribunal considering the same application, between the same parties, on a successive basis, are serious. The Tribunal Registrar may have to implement measures to monitor whether applicants are lodging similar applications in the hope of achieving a different outcome.

28. It can finally be noted that a purported consent to a variation of an order does not provide the application with any more merit than the previous application. Section 165 of the Act does not provide for any instance whereby an order can be varied by consent.

ORDER

29. Accordingly, the Tribunal makes the following order:-

29.1 The application to vary or alternatively rescind the order, is refused.

29.2 There is no order as to costs.

Thus done and signed at Centurion on 18 September 2018.

{signed}

Adv. J Simpson

Presiding Member

Ms HDevraj (Tribunal Member} and Mr. A Potwana (Tribunal Member) concurring.

[1] Act 34 of 2005 (hereinafter referred to "the Act")

[2] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters

before the National Consumer Tribunal 2007 (Government Gazette No 30225). As amended

[3] See:Smith v Porritt & others 2008 (6) SA 303 (SCA).