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

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

The Tribunal found that the present application was materially identical to a previous application by the same applicant, involving the same parties, facts, and relief sought. The previous application for rescission or variation had already been adjudicated and refused. The Tribunal held that the doctrine of res judicata applies, barring reconsideration of the same matter. The applicant's attempt to distinguish the present application as a variation rather than a rescission was rejected, as the substance and relief sought were the same. The Tribunal further held that purported consent to variation does not override the statutory requirements of Section 165, which do not allow for...

Citation
[2018] ZANCT 126
Parties
Applicant: Absa Bank Limited; Respondent: Senay Sager; Respondent: Nonhlanhla Corah Nxele; Respondent: Sifiso Lucky Mthethwa; Respondent: Capitec Bank Limited; Respondent: Direct Axis (SA) (Pty) Ltd, Agent for Call Direct; Respondent: Direct Axis (SA) (Pty) Ltd, on behalf of Firstrand Bank Limited; Respondent: Edgars, on behalf of Edcon (Pty) Ltd; Respondent: Finchoice (Pty) Ltd; Respondent: First National Bank, a division of Firstrand Bank Limited; Respondent: Foschini Retail Group (Pty) Ltd; Respondent: The Motor Finance Corporation (MFC), a division of Nedbank Limited; Respondent: Nedbank Limited; Respondent: Southern View Finance UK Limited t/a Capfin; Respondent: Truworths Limited; Respondent: Woolworths (Pty) Ltd
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
20 September 2018
Case Number
NCT/112462/2018/165
Procedural Posture
Review Application / Application for Variation or Rescission of Tribunal Order Under Section 165 of the National Credit Act
Outcome
Application to vary or rescind the Tribunal order is refused.
Judges
J Simpson, H Devraj, A Potwana
Legal Topics
National Credit Act Section 165, Debt Restructuring, Res Judicata, Variation of Order
Banking and Finance Civil Procedure National Credit Act Section 165 Debt Restructuring Res Judicata Variation of Order

Case Brief

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Parties

Absa Bank Limited

Applicant

Senay Sager

Respondent

Nonhlanhla Corah Nxele

Respondent

Sifiso Lucky Mthethwa

Respondent

Capitec Bank Limited

Respondent

Direct Axis (SA) (Pty) Ltd, Agent for Call Direct

Respondent

Direct Axis (SA) (Pty) Ltd, on behalf of Firstrand Bank Limited

Respondent

Edgars, on behalf of Edcon (Pty) Ltd

Respondent

Finchoice (Pty) Ltd

Respondent

First National Bank, a division of Firstrand Bank Limited

Respondent

Foschini Retail Group (Pty) Ltd

Respondent

The Motor Finance Corporation (MFC), a division of Nedbank Limited

Respondent

Nedbank Limited

Respondent

Southern View Finance UK Limited t/a Capfin

Respondent

Truworths Limited

Respondent

Woolworths (Pty) Ltd

Respondent

Procedural Posture

Review Application / Application for Variation or Rescission of Tribunal Order Under Section 165 of the National Credit Act

Legal Issues

  1. 1 Whether the Tribunal should vary or rescind its previous debt rearrangement order under Section 165 of the National Credit Act.
  2. 2 Whether the doctrine of res judicata applies to bar the present application.
  3. 3 Whether consent between parties can justify variation of a Tribunal order under Section 165.

Ratio Decidendi

The Tribunal found that the present application was materially identical to a previous application by the same applicant, involving the same parties, facts, and relief sought. The previous application for rescission or variation had already been adjudicated and refused. The Tribunal held that the doctrine of res judicata applies, barring reconsideration of the same matter. The applicant's attempt to distinguish the present application as a variation rather than a rescission was rejected, as the substance and relief sought were the same. The Tribunal further held that purported consent to variation does not override the statutory requirements of Section 165, which do not allow for...

Court Disposition

Application to vary or rescind the Tribunal order is refused.

Orders

  • The application to vary or alternatively rescind the order is refused.
  • There is no order as to costs.