Bornman v National Credit Regulator (798/12) [2013] ZASCA 130; [2014] 2 All SA 14 (SCA); 2014 (3) SA 384 (SCA) (26 September 2013)

Bornman v National Credit Regulator (798/12) [2013] ZASCA 130; [2014] 2 All SA 14 (SCA); 2014 (3) SA 384 (SCA) (26 September 2013)

The Supreme Court of Appeal found that the appellant, while registered as a debt counsellor and practising as an attorney, failed to comply with the statutory requirements of the National Credit Act. He did not make the required determinations of over-indebtedness, failed to keep adequate records, and deviated from the prescribed debt review process. The appellant deducted collection fees, retainers, and legal fees from consumers in contravention of both his conditions of registration and the Act. The Tribunal was correct in declaring these actions as prohibited conduct and ordering the refund of all such fees to consumers. The appellant's explanations regarding the nature of the fees and...

Citation
[2013] ZASCA 130
Parties
Appellant: Christoph Bornman; Respondent: National Credit Regulator
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 2013
Case Number
798/12
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
The appeal is dismissed with costs.
Judges
Lewis, Ponnan, Malan, Shongwe, Saldulker
Legal Topics
National Credit Act, Debt Counsellor Registration, Fee Guidelines, Prohibited Conduct, Refund of Illegal Fees
Commercial and Corporate Civil Procedure National Credit Act Debt Counsellor Registration Fee Guidelines Prohibited Conduct Refund of Illegal Fees

Case Brief

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Parties

Christoph Bornman

Appellant

National Credit Regulator

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the appellant contravened the National Credit Act and his conditions of registration as a debt counsellor.
  2. 2 Whether the appellant was entitled to charge and retain collection fees, retainers, or legal fees from consumers under debt review.
  3. 3 Whether the National Consumer Tribunal had the power to order the refund of such fees to consumers.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant, while registered as a debt counsellor and practising as an attorney, failed to comply with the statutory requirements of the National Credit Act. He did not make the required determinations of over-indebtedness, failed to keep adequate records, and deviated from the prescribed debt review process. The appellant deducted collection fees, retainers, and legal fees from consumers in contravention of both his conditions of registration and the Act. The Tribunal was correct in declaring these actions as prohibited conduct and ordering the refund of all such fees to consumers. The appellant's explanations regarding the nature of the fees and...

Court Disposition

The appeal is dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The appellant is ordered to refund all past and current clients all amounts taken from his trust account as collection commission, retainer, legal fees, or any other charge not provided for in the fee guidelines, within thirty days of the order.