De Klerk and Another v Absa Bank Limited and Another (NCT/376411/2025/141(1)(b)) [2025] ZANCT 25 (22 April 2025)

De Klerk and Another v Absa Bank Limited and Another (NCT/376411/2025/141(1)(b)) [2025] ZANCT 25 (22 April 2025)

The Tribunal found that the applicants' complaint arose from the conclusion of the second home loan agreement in 2020. Section 166 of the National Credit Act prescribes a three-year limitation period from the date of the act or omission causing the complaint. The applicants filed their application for leave to refer in February 2025, nearly five years after the alleged reckless lending. The Tribunal held that the limitation period must be calculated from 2020, not from the date of default in 2022, as the cause of action is linked to the granting of credit. The Tribunal has no discretion to condone non-compliance with the statutory time bar. The High Court's prior judgment did not...

Citation
[2025] ZANCT 25
Parties
Applicant: Christian Daniel De Klerk; Applicant: Johanna Magdalena Letina De Klerk; Respondent: Absa Bank Limited; Respondent: National Credit Regulator
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
22 April 2025
Case Number
NCT/376411/2025/141(1)(b)
Procedural Posture
Leave to Appeal / Application for Leave to Refer Complaint Directly to Tribunal
Outcome
Application for leave to refer refused; no order as to costs.
Judges
Z Ntuli, MC Peenze, P Manzi-Ntshingila
Legal Topics
Reckless Lending, Affordability Assessment, Limitation Period, Leave to Refer, Consumer Credit
Banking and Finance Civil Procedure Reckless Lending Affordability Assessment Limitation Period Leave to Refer Consumer Credit

Case Brief

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Parties

Christian Daniel De Klerk

Applicant

Johanna Magdalena Letina De Klerk

Applicant

Absa Bank Limited

Respondent

National Credit Regulator

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Refer Complaint Directly to Tribunal

Legal Issues

  1. 1 Whether the Tribunal should grant leave to refer the complaint directly to the Tribunal under section 141(1)(b).
  2. 2 Whether the complaint is time-barred under section 166 of the National Credit Act.
  3. 3 Whether the Tribunal has jurisdiction to consider the complaint given the High Court's prior judgment.

Ratio Decidendi

The Tribunal found that the applicants' complaint arose from the conclusion of the second home loan agreement in 2020. Section 166 of the National Credit Act prescribes a three-year limitation period from the date of the act or omission causing the complaint. The applicants filed their application for leave to refer in February 2025, nearly five years after the alleged reckless lending. The Tribunal held that the limitation period must be calculated from 2020, not from the date of default in 2022, as the cause of action is linked to the granting of credit. The Tribunal has no discretion to condone non-compliance with the statutory time bar. The High Court's prior judgment did not...

Court Disposition

Application for leave to refer refused; no order as to costs.

Orders

  • The application for leave to refer is refused.
  • There is no order as to costs.