Chinsamy v First National Bank (NCT/70146/2016/114(1)NCA) [2017] ZANCT 7 (15 February 2017)
The Tribunal found that the Applicant, through his duly authorized agent, made valid requests for a statement of account from the Respondent, as provided for in section 110 of the National Credit Act. The Respondent failed to comply with these requests and did not participate in the proceedings. The Tribunal was...
Source-derived case information.
- Citation
- [2017] ZANCT 7
- Parties
- Applicant: Looshendran Chinsamy; Respondent: First National Bank
- Court
- National Consumer Tribunal
- Jurisdiction
- South Africa
- Case Number
- NCT/70146/2016/114(1)NCA
- Procedural Posture
- Review Application / Default Judgment; Application for Statement Under Section 114 NCA
- Outcome
- Application granted in default; Respondent ordered to provide statement of account within 22 business days.
- Judges
- B Dumisa, J Simpson, H Devraj
- Legal Topics
- National Credit Act, Consumer Right to Information, Default Judgment, Credit Provider Obligations
Source-derived case record
Summary, issues, holding and outcome
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Parties
Looshendran Chinsamy
Applicant
First National Bank
Respondent
Procedural Posture
Review Application / Default Judgment; Application for Statement Under Section 114 NCA
Legal Issues
- 1 Whether the Respondent was obliged to provide the Applicant with a statement of account under section 110 of the National Credit Act.
- 2 Whether the Applicant's agent was lawfully entitled to request the statement on his behalf.
- 3 Whether the Tribunal should grant the application in default of the Respondent's participation.
Ratio Decidendi
The Tribunal found that the Applicant, through his duly authorized agent, made valid requests for a statement of account from the Respondent, as provided for in section 110 of the National Credit Act. The Respondent failed to comply with these requests and did not participate in the proceedings. The Tribunal was satisfied that service was effected and proceeded on a default basis. The law entitles the consumer to receive such statements, and the Tribunal is empowered under section 114 to order the credit provider to comply. The application was granted, and the Respondent was ordered to provide the requested statement within 22 business days.
Court Disposition
Application granted in default; Respondent ordered to provide statement of account within 22 business days.
Orders
- The application is granted.
- The Respondent is ordered to provide the Applicant and/or his agent, at his direction, with a statement containing the current balance, amounts credited or debited, amounts overdue and when due, and amounts currently payable and the date due, for account reference [8...].
Full Case Text
Judgment text and source record
79 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE NATIONAL CONSUMER TRIBUNAL
HELD AT CENTURION
Case number: NCT/70146/2016/114(1) NCA
In the matter between:
Looshendran Chinsamy
Applicant
ID: [8...]
and
FIRST NATIONAL BANK
Respondent
CORAM:
Prof. B Dumisa (Presiding member)
Adv. J Simpson (Member)
Ms. H Devraj (Member)
Date of hearing – 13 February 2017
JUDGMENT AND REASONS
THE PARTIES
1. The Applicant in this matter is Looshendran Chinsamy (the “Applicant”) an adult male consumer represented by Accord Debt Solutions CC.
2. The Respondent is FIRST NATIONAL BANK, a registered company and credit provider carrying on business from Merchant Place, 4th Floor, Corner Fredman Drive & Rivonia Road, Sandton, Johannesburg.
THE APPLICATION
3. The Applicant brought the application in terms of section 114 of the National Credit Act, Act 34 of 2005, as amended (the NCA).
JURISDICTION
4. This National Consumer Tribunal (the Tribunal) has jurisdiction to hear this matter in terms of section 114 of the NCA. The section provides as follows:
“114. If a statement is not offered or delivered within the time required by this Part, the Tribunal, on application by the consumer, may—
(a) order the credit provider to provide the statement; or
(b) determine the amounts in relation to which the statement was sought.”
THE HEARING
5. The application was heard on 13 February 2017.
6. The Applicant was represented by Mr Altman of Altman Attorneys, appointed by Accord Debt Solutions CC.
BACKGROUND
7. The Applicant has a credit agreement with the Respondent under reference number [8...].
8. The Applicant requested Accord Debt Solutions to assist with resolving his financial difficulties.
9. The Applicant signed a power of attorney allowing Accord Debt Solutions to request a statement of his account on his behalf from his credit providers.
10. Accord Debt Solutions sent written requests to the Respondent to provide statements of the Applicant’s account on at least two occasions, which had not been provided up to the date of the hearing.
CONSIDERATIONS BY THE TRIBUNAL
Default judgment
11. The Respondent did not file an answering affidavit to the application and was not present at the hearing.
12. Rule 13(2) of the Rules of the Tribunal provides that if a party does not dispute allegations made in an application those allegations may be deemed as admitted.
13. Based on the papers filed with the Tribunal the application was signed on 23 November 2016 and the Applicant’s certification of service reflects that the application was served via registered post as per the registered postage slip dated 23 November 2016.
14. The Tribunal is satisfied that the application was served on the Respondent and the matter therefore proceeds on a default basis.
Applicable law
15. Section 110 of the NCA further finds application in this matter. This section provides as follows:
“110(1) At the request of a consumer, a credit provider
must deliver without charge to the consumer a statement of all or any of the following—
(a) the current balance of the consumer’ s account;
(b) any amounts credited or debited during a period specified in the request;
(c) any amounts currently overdue and when each such amount became due; and
(d) any amount currently payable and the date it became due.
(2) A statement requested in terms of subsection (1) must be delivered—
(a) within 10 business days, if all the requested information relates to a period of one year or less before the request was made; or
(b) within 20 business days, if any of the requested information relates to a period of more than one year before the request was made.
(3) A statement under this section may be delivered
(a) orally, in person or by telephone; or
(b) in writing, either to the consumer in person or by sms, mail, fax, email or other electronic form of communication, to the extent that the credit provider is equipped to offer such facilities, as directed by the consumer when making the request.
(4) A credit provider is not required to provide—
(a) a further written statement under this section if it has, within the three months before the request is given, given such a statement to the person requesting it; or
(b) information in a statement under this section more than three years after the account was closed.
(5) On application by a credit provider, the Tribunal may make an order limiting the credit provider’s obligations to a consumer in terms of this section if the Tribunal is satisfied that the consumer’s requests are frivolous or vexatious.
(Date of commencement of s. 110: 1 June, 2007.)”
16. Accord Debt Solutions submitted that they had requested a copy of the credit agreement entered into between the Applicant and the Respondent and statements from the Respondent on more than one occasion namely on 20 June 2016 and again on 27 June 2016, with no success.
17. It is clear that section 110 entitles the consumer to require statements from the Respondent (credit provider) and consequently provides a remedy in section 114 of the NCA for the consumer to use to oblige the credit provider to provide the statement. Accord Debt Solutions CC was lawfully acting on behalf of the consumer by virtue of the Power of Attorney signed by the consumer and attached to the request for the statement.
18. The Tribunal accordingly finds that the Respondent is required to provide the Applicant and / or his agent, at his direction, with the information as set out in section 110(1) of the NCA.
ORDER
19. The Tribunal accordingly makes the following order -
19.1. The application is granted;
19.2. Respondent is ordered to provide the Applicant and / or his agent, at his direction, with a statement with all or any of the following information on his account under reference number [8...] held with Respondent —
19.2.1. the current balance of the consumer’ s account;
19.2.2. any amounts credited to or debited from the account;
19.2.3. any amounts currently overdue and when each such amount became due; and
19.2.4. any amount currently payable and the date it became due.
19.3. The Respondent is ordered to provide the information in 19.1 above to the Applicant and / or his agent at his direction, by no later 22 (twenty two) business days from the date of this order; and
19.4. There is no order for costs.
Thus done and handed down on this 15th day of February 2017.
[signed]
Adv. J Simpson
Member
CONCURRING:
Prof. B Dumisa (Presiding Member) and Ms. H Devraj (Member)