Less v Vosloo and Others (7520/17P) [2017] ZAKZPHC 58 (22 September 2017)

Less v Vosloo and Others (7520/17P) [2017] ZAKZPHC 58 (22 September 2017)

The court held that the applicant could not be declared no longer over indebted and released from debt review because the statutory requirements of the National Credit Act had not been complied with. Specifically, no application for debt review had been issued and filed at the magistrate's court, and no court order had been granted confirming over indebtedness or restructuring. The debt counsellor does not have the statutory power to withdraw or terminate the debt review process, and judicial oversight is required for any declaration of over indebtedness. The process is only instituted once the application is filed at court; until then, it remains pending and can be withdrawn by the...

Citation
[2017] ZAKZPHC 58
Parties
Applicant: Tracey-Ann Less; Respondent: Johanna Wilhelmina Vosloo; Respondent: ABSA Bank Limited; Respondent: FNB, a division of FirstRand Limited; Respondent: Consumer Friend; Respondent: MFC, a division of Nedbank Limited; Respondent: Nedbank Limited; Respondent: Standard Bank of SA Limited
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
22 September 2017
Case Number
7520/17P
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed.
Judges
Bezuidenhout
Legal Topics
National Credit Act, Debt Review, Over Indebtedness, Judicial Oversight, Credit Bureau Removal
Banking and Finance Civil Procedure National Credit Act Debt Review Over Indebtedness Judicial Oversight Credit Bureau Removal

Case Brief

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Parties

Tracey-Ann Less

Applicant

Johanna Wilhelmina Vosloo

Respondent

ABSA Bank Limited

Respondent

FNB, a division of FirstRand Limited

Respondent

Consumer Friend

Respondent

MFC, a division of Nedbank Limited

Respondent

Nedbank Limited

Respondent

Standard Bank of SA Limited

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant can be declared no longer over indebted and released from debt review without a magistrate's court order.
  2. 2 Whether the debt counsellor has statutory power to withdraw or terminate the debt review process.
  3. 3 Whether the requirements of the National Credit Act for debt review and restructuring have been complied with.

Ratio Decidendi

The court held that the applicant could not be declared no longer over indebted and released from debt review because the statutory requirements of the National Credit Act had not been complied with. Specifically, no application for debt review had been issued and filed at the magistrate's court, and no court order had been granted confirming over indebtedness or restructuring. The debt counsellor does not have the statutory power to withdraw or terminate the debt review process, and judicial oversight is required for any declaration of over indebtedness. The process is only instituted once the application is filed at court; until then, it remains pending and can be withdrawn by the...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.