Botha v Koekemoer t/a The Debt Expert 2 and Others; Mafakane v MSA Consultants t/a Consumer Financial Services and Others (7723/2017; 750/2018) [2018] ZALMPPHC 20 (11 May 2018)

Botha v Koekemoer t/a The Debt Expert 2 and Others; Mafakane v MSA Consultants t/a Consumer Financial Services and Others (7723/2017; 750/2018) [2018] ZALMPPHC 20 (11 May 2018)

The National Credit Act does not provide for the unilateral withdrawal of a debt review application by the applicant or for termination by the debt counsellor after a recommendation has been made. Only a court, upon hearing all relevant evidence, including the applicant's wish to withdraw, may reject the application and thereby terminate the debt review process. In these cases, the debt counsellors failed to refer the applications to the magistrates' court as required, and the applicants were never declared over-indebted by a competent court. The court refused to issue declaratory orders as prayed and directed that the applications be referred to the magistrates' court for proper hearing...

Citation
[2018] ZALMPPHC 20
Parties
Applicant: Adri Botha; Respondent: Bernice Koekmoer (NCRDC760) t/a The Debt Expert 2; Respondent: Direct Axis (Pty) Ltd; Respondent: Finchoice (Pty) Ltd; Respondent: Nedbank Ltd; Respondent: Rainbow Finance c/o Of Furniture; Respondent: Wesbank – Vehicle Finance; Applicant: Richard Mafakane; Respondent: MSA Consultants t/a Consumer Financial Services; Respondent: Capitec Bank Ltd; Respondent: Consumer Friend
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
11 May 2018
Case Number
7723/2017; 750/2018
Procedural Posture
Urgent Application / Unopposed Motion Court; Application for Declaratory Relief
Outcome
Both applications are dismissed. The matter is referred to the respective magistrates' courts for hearing.
Judges
G.C Muller
Legal Topics
National Credit Act, Debt Review Termination, Magistrates Court Jurisdiction, Over Indebtedness, Declaratory Relief
Banking and Finance Civil Procedure National Credit Act Debt Review Termination Magistrates Court Jurisdiction Over Indebtedness Declaratory Relief

Case Brief

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Parties

Adri Botha

Applicant

Bernice Koekmoer (NCRDC760) t/a The Debt Expert 2

Respondent

Direct Axis (Pty) Ltd

Respondent

Finchoice (Pty) Ltd

Respondent

Nedbank Ltd

Respondent

Rainbow Finance c/o Of Furniture

Respondent

Wesbank – Vehicle Finance

Respondent

Richard Mafakane

Applicant

MSA Consultants t/a Consumer Financial Services

Respondent

Capitec Bank Ltd

Respondent

Consumer Friend

Respondent

Procedural Posture

Urgent Application / Unopposed Motion Court; Application for Declaratory Relief

Legal Issues

  1. 1 Whether an applicant may terminate the debt review process before a magistrate's court order is made.
  2. 2 Whether a debt counsellor has the power to terminate debt review proceedings after making a recommendation.
  3. 3 Whether a court may grant declaratory relief that an applicant is no longer under debt review without a magistrate's order.

Ratio Decidendi

The National Credit Act does not provide for the unilateral withdrawal of a debt review application by the applicant or for termination by the debt counsellor after a recommendation has been made. Only a court, upon hearing all relevant evidence, including the applicant's wish to withdraw, may reject the application and thereby terminate the debt review process. In these cases, the debt counsellors failed to refer the applications to the magistrates' court as required, and the applicants were never declared over-indebted by a competent court. The court refused to issue declaratory orders as prayed and directed that the applications be referred to the magistrates' court for proper hearing...

Court Disposition

Both applications are dismissed. The matter is referred to the respective magistrates' courts for hearing.

Orders

  • The application under case no 7723/2017 is dismissed.
  • The application under case no 750/2018 is dismissed.