Krige and Another v Direct Axis and Others (NCT/7267/2012/148(1)(P)NCA) [2013] ZANCT 27 (3 September 2013)

Krige and Another v Direct Axis and Others (NCT/7267/2012/148(1)(P)NCA) [2013] ZANCT 27 (3 September 2013)

The Tribunal found that neither section 138(1) of the National Credit Act nor the Tribunal's rules require the debt counsellor to submit an income and expenditure statement as a mandatory filing requirement for a consent order application. While a Tribunal member may request such information to clarify concerns, the presiding member in the original decision did not do so, thereby failing to observe the audi alteram partem principle. The responsibility to determine over-indebtedness lies with the debt counsellor, not the Tribunal. The Tribunal's role under section 138(1) is to confirm the agreement as a consent order without hearing evidence, provided the necessary parties have consented....

Citation
[2013] ZANCT 27
Parties
Appellant: Hennie Krige; Appellant: Tiligavithy Chellan; Respondent: Direct Axis; Respondent: Edcon; Respondent: FNB; Respondent: Foschini; Respondent: Mr Price Group; Respondent: Nedbank; Respondent: RCS; Respondent: Sanlam; Respondent: Standard Bank; Respondent: Truworths; Respondent: Woolworths
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
3 September 2013
Case Number
NCT/7267/2012/148(1)(P)NCA
Procedural Posture
Civil Appeal / Appeal From Single Member to Full Panel
Outcome
Appeal upheld; original order refusing consent order set aside; draft consent order confirmed.
Judges
J Maseko, F Manamela, J Simpson
Legal Topics
National Credit Act, Debt Restructuring, Consent Order, Appeal Panel Procedure
Banking and Finance Civil Procedure National Credit Act Debt Restructuring Consent Order Appeal Panel Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Hennie Krige

Appellant

Tiligavithy Chellan

Appellant

Direct Axis

Respondent

Edcon

Respondent

FNB

Respondent

Foschini

Respondent

Mr Price Group

Respondent

Nedbank

Respondent

RCS

Respondent

Sanlam

Respondent

Standard Bank

Respondent

Truworths

Respondent

Woolworths

Respondent

Procedural Posture

Civil Appeal / Appeal From Single Member to Full Panel

Legal Issues

  1. 1 Whether the Tribunal member erred in refusing to confirm the consent order due to lack of income and expenditure information.
  2. 2 Whether the Tribunal is required to assess the consumer's ability to service restructured debt repayments under section 138(1) of the National Credit Act.
  3. 3 Whether the debt counsellor is obliged to submit an income and expenditure statement as a filing requirement for a consent order application.

Ratio Decidendi

The Tribunal found that neither section 138(1) of the National Credit Act nor the Tribunal's rules require the debt counsellor to submit an income and expenditure statement as a mandatory filing requirement for a consent order application. While a Tribunal member may request such information to clarify concerns, the presiding member in the original decision did not do so, thereby failing to observe the audi alteram partem principle. The responsibility to determine over-indebtedness lies with the debt counsellor, not the Tribunal. The Tribunal's role under section 138(1) is to confirm the agreement as a consent order without hearing evidence, provided the necessary parties have consented....

Court Disposition

Appeal upheld; original order refusing consent order set aside; draft consent order confirmed.

Orders

  • The order of the single member in case number NCT/6404/2012/138(1)(P) dated 28 November 2012 is set aside.
  • The draft consent order filed by the debt counsellor dated 20 September 2012 is confirmed.