Fortune v Wesbank, A Division of Firstrand Bank Ltd and Another (NCT/356687/2024/165) [2025] ZANCT 14 (7 April 2025)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/356687/2024/165

In the matter between: WALEED FORTUNE APPLICANT On behalf of LEBONE VULRY MAEDIMOLE and WESBANK, A DIVISION OF FIRSTRAND BANK LTD 1ST RESPONDENT RUSHDIE TOFIE 2ND RESPONDENT

Coram:

Mr S Hockey

- Presiding Tribunal member

Adv C Sassman

- Tribunal member

Ms P Manzi-Ntshingila - Tribunal member

Date of hearing

- 4 April 2025

Date of judgment - 7 April 2025

JUDGMENT AND REASONS

INTRODUCTION

1. This is an application in terms of section 165 of the National Credit Act, 34 of 2005, for the variation of an order of the National Consumer Tribunal (the Tribunal), which was granted by consent between the parties thereto on 10 November 2023 under case number NCT-287776-138(1) (the consent order).

2. The applicant is Waleed Fortune (the applicant), a debt counsellor registered with the National Credit Regulator (the NCR) under registration number NCRDC4293. The applicant is acting on behalf of a consumer, Lebone Vulry Maedimole (the consumer), who was under debt review and whose debts were rearranged and confirmed by the consent order. At the hearing, the applicant represented himself.

3. The first respondent is Wesbank Limited, a Division of FirstRand Bank Limited (Wesbank), a credit provider registered as such with the NCR under the provisions of the National Credit Act, 34 of 2005[1] (the NCA).

4. The second respondent is Rushdie Tofie, a registered debt counsellor with the NCR under registration number NCRDC3698. He has been cited as he was the debt counsellor who was the applicant in the application for the consent order. All matters of the second respondent have since been transferred to the applicant for debt counselling services.

5. Neither of the respondents filed an answering affidavit in opposition to this application. The Tribunal is satisfied that the application has been duly served on the respondents. Since they have not opposed the application, it must be considered on an unopposed basis. In terms of rule 13(5),[2] any fact or allegation in an application not specifically denied or admitted in an answering affidavit will be deemed to be admitted.

BACKGROUND

6. As alluded to above, the consumer’s debt with Wesbank was rearranged and was confirmed by an order of the Tribunal,

7. In terms of the rearrangement proposal, which formed part of the record for the application for the consent order, the consumer had a nett income of R17 639.80 and total monthly expenses of R12 765.59, leaving her with a distributable amount of R4 590.50 after deductions of fees relating to debt counselling and payment distribution fees.

8. In terms of the acceptance letter, which is attached to the consent order, an amount of R4 590.50 was to be paid toward Wesbank for the first six months. This payment was to increase to R8 603.42 for twelve instalments and then to R12 807.63 for ten instalments, whereafter an instalment of R9 005.74 would remain.

9. The applicant submitted that the consumer cannot afford the cascaded payments. He stated that the proposal for the cascading payments was due to an error when the system they used generated the cascading payment proposal.

10. The applicant informed the Tribunal hearing panel that an amended acceptance letter from Wesbank had been obtained, and payments had since been made to Wesbank in accordance with it. The letter was presented at the hearing, and the Tribunal was apprised of a copy thereof.

LEGAL CONSIDERATIONS AND DISCUSSION

11. Section 165 provides for rescission or variation of an order granted by the Tribunal acting of its own accord or on application by a person affected by a decision or order. Section 165 further prescribes that such rescission or variation may only be granted in the following instances:

a. When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it;

b. There is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error, or omission; or

c. The order was made or granted due to a mistake common to all the parties to the proceedings.

12. From the documents at hand, it is clear that the consumer cannot afford payments to Wesbank above her distributable amount of R4 590.50.

13. The only reasonable inference that can be drawn from the above is that the cascading arrangement contained in the acceptance letter attached to the consent order is an obvious error and should be corrected in terms of section 165(b). This can be done by removing the erroneous acceptance letter and replacing it with the new one from Wesbank.

THE ORDER

14. In the result, the following order is made:

15.1. The application for the variation of the order granted on 10 November 2023 under case number NCT-287776-138(1) is hereby varied by replacing the erroneous acceptance letter with the acceptance letter which is marked “A1” and attached to the varied order, which is attached hereto marked “A”.

15.2. There is no order as to costs.

Mr S Hockey

(Presiding Tribunal member)

Tribunal members Adv C Sassman and Ms P Manzi-Nsthingila concur.

[1] Any reference to a section in this judgment refers to a section of the NCA unless the context indicates otherwise.

[2] Any reference to a rule in this judgment refers to the Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, published under GN 789 in GG 30225 on 28 August 2007 as amended by GN 428 in GG 34405 on 29 June 2011, GN R203 in GG 38557 on 13 March 2015 and GN 157 in GG 39663 on 4 February 2016.