Absa Bank Ltd v Sager and Others (NCT/108118/2018/165) [2018] ZANCT 50 (31 July 2018)

Absa Bank Ltd v Sager and Others (NCT/108118/2018/165) [2018] ZANCT 50 (31 July 2018)

The Tribunal found that the order confirming the debt re-arrangement agreement was based on an erroneous acceptance letter from ABSA, which did not reflect the true agreement between the parties. The repayment terms were clearly incorrect and not in accordance with the parties' intentions. As the respondents failed to oppose the application or file answering affidavits, the applicant's allegations were deemed admitted. The Tribunal concluded that the order was erroneously sought by the debt counsellor in the absence of ABSA and that rescission was warranted under section 165(a) of the National Credit Act.

Citation
[2018] ZANCT 50
Parties
Applicant: Absa Bank Ltd; Respondent: Benay Sager; Respondent: Nimesh Kantilal Keshav; Respondent: Deepti Keshav; Respondent: Direct Axis (SA) (Pty) Limited on behalf of Firstrand Bank Ltd; Respondent: Jet, on behalf of Edcon (Pty) Ltd; Respondent: RCS Cards (Pty) Ltd; Respondent: Standard Bank of South Africa Limited; Respondent: Truworths Limited; Respondent: Wesbank, a division of Firstrand Bank Ltd
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
31 July 2018
Case Number
NCT/108118/2018/165
Procedural Posture
Rescission Application / Hearing on Default Basis
Outcome
Application to rescind the Tribunal order is granted.
Judges
F Sibanda, J Simpson, A Potwana
Legal Topics
National Credit Act Section 165, Rescission of Order, Debt Rearrangement, Default Proceedings
Banking and Finance Civil Procedure National Credit Act Section 165 Rescission of Order Debt Rearrangement Default Proceedings

Case Brief

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Parties

Absa Bank Ltd

Applicant

Benay Sager

Respondent

Nimesh Kantilal Keshav

Respondent

Deepti Keshav

Respondent

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

Respondent

Jet, on behalf of Edcon (Pty) Ltd

Respondent

RCS Cards (Pty) Ltd

Respondent

Standard Bank of South Africa Limited

Respondent

Truworths Limited

Respondent

Wesbank, a division of Firstrand Bank Ltd

Respondent

Procedural Posture

Rescission Application / Hearing on Default Basis

Legal Issues

  1. 1 Whether the Tribunal order confirming the debt re-arrangement agreement should be rescinded under section 165 of the National Credit Act.
  2. 2 Whether the order was erroneously sought or granted in the absence of a party affected by it.
  3. 3 Whether the repayment terms reflected in the order were based on an error.

Ratio Decidendi

The Tribunal found that the order confirming the debt re-arrangement agreement was based on an erroneous acceptance letter from ABSA, which did not reflect the true agreement between the parties. The repayment terms were clearly incorrect and not in accordance with the parties' intentions. As the respondents failed to oppose the application or file answering affidavits, the applicant's allegations were deemed admitted. The Tribunal concluded that the order was erroneously sought by the debt counsellor in the absence of ABSA and that rescission was warranted under section 165(a) of the National Credit Act.

Court Disposition

Application to rescind the Tribunal order is granted.

Orders

  • The order confirming the debt re-arrangement as an order of the Tribunal, case number NCT/46982/2016/138, dated 26 June 2017, is hereby rescinded.
  • There is no order as to costs.