Klusmann v FFS Finance South Africa (RF) (Pty) Ltd t/a Absa Vehicle & Asset Finance (NCT/325080/2024/141(1)(b)) [2024] ZANCT 50 (8 November 2024)

Klusmann v FFS Finance South Africa (RF) (Pty) Ltd t/a Absa Vehicle & Asset Finance (NCT/325080/2024/141(1)(b)) [2024] ZANCT 50 (8 November 2024)

The Tribunal found that the cause of the complaint—reckless lending—arose in July 2016 when the credit agreement was concluded. Section 166(1)(a) of the National Credit Act prohibits referral of complaints more than three years after the cause of action. The applicant only approached the Tribunal in April 2024, well outside the prescribed period. The Tribunal has no discretion to extend this period, and the continued existence of the credit agreement does not constitute a continuous practice under section 166(1)(b). Therefore, the complaint is time-barred and cannot be entertained by the Tribunal.

Citation
[2024] ZANCT 50
Parties
Applicant: Garrette Louis Klusmann; Respondent: FFS Finance South Africa (RF) (Pty) Ltd t/a Absa Vehicle & Asset Finance
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
8 November 2024
Case Number
NCT/325080/2024/141(1)(b)
Procedural Posture
Leave to Appeal / Application for Leave to Refer Complaint to Tribunal
Outcome
Application for leave to refer the complaint directly to the Tribunal is refused as time-barred.
Judges
MC Peenze, S Hockey, P Manzi-Ntshingila
Legal Topics
Reckless Lending, Affordability Assessment, Prescription, Leave to Refer, National Credit Act
Banking and Finance Civil Procedure Reckless Lending Affordability Assessment Prescription Leave to Refer National Credit Act

Case Brief

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Parties

Garrette Louis Klusmann

Applicant

FFS Finance South Africa (RF) (Pty) Ltd t/a Absa Vehicle & Asset Finance

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the complaint of reckless lending is time-barred under section 166 of the National Credit Act.
  2. 2 Whether the Tribunal has jurisdiction to entertain the complaint after the lapse of three years from the cause of action.
  3. 3 Whether the continued existence of the credit agreement constitutes a continuous practice under section 166(1)(b).

Ratio Decidendi

The Tribunal found that the cause of the complaint—reckless lending—arose in July 2016 when the credit agreement was concluded. Section 166(1)(a) of the National Credit Act prohibits referral of complaints more than three years after the cause of action. The applicant only approached the Tribunal in April 2024, well outside the prescribed period. The Tribunal has no discretion to extend this period, and the continued existence of the credit agreement does not constitute a continuous practice under section 166(1)(b). Therefore, the complaint is time-barred and cannot be entertained by the Tribunal.

Court Disposition

Application for leave to refer the complaint directly to the Tribunal is refused as time-barred.

Orders

  • The application for leave to refer a complaint directly to the Tribunal is refused.
  • There is no order as to costs.