Liphoko v ABSA Bank Ltd and Others (NCT7253/2009/138(1) (P)) [2010] ZANCT 10 (21 April 2010)

Liphoko v ABSA Bank Ltd and Others (NCT7253/2009/138(1) (P)) [2010] ZANCT 10 (21 April 2010)

The Tribunal found, based on the applicant's disposable income and total indebtedness, that she was over-indebted as defined in section 79 of the National Credit Act. Her repayment history indicated extreme difficulty in satisfying her obligations in a timely manner. There was also evidence suggesting that some credit may have been granted recklessly. As a result, the Tribunal lacked jurisdiction to grant the consent order and was required to refer the matter to the magistrate's court for judicial oversight and consideration of possible reckless lending. The Tribunal further referred the matter to the National Credit Regulator for investigation into prohibited conduct by the respondents.

Citation
[2010] ZANCT 10
Parties
Applicant: Sinki Suzan Liphoko; Respondent: ABSA Bank Ltd; Respondent: African Bank Ltd; Respondent: Ellerine Holdings Limited; Respondent: Edcon (Pty) Ltd (Jet Stores); Respondent: Orange Cash Loans
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
21 April 2010
Case Number
NCT7253/2009/138(1) (P)
Procedural Posture
Consent Order Application / Application for Consent Order Under National Credit Act; Referral to Magistrate's Court
Outcome
Application for consent order refused; matter referred to National Credit Regulator and magistrate's court.
Judges
T Woker
Legal Topics
National Credit Act, Debt Review, Over Indebtedness, Reckless Credit, Consent Order, Magistrates Court Referral
Banking and Finance Civil Procedure National Credit Act Debt Review Over Indebtedness Reckless Credit Consent Order Magistrates Court Referral

Case Brief

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Parties

Sinki Suzan Liphoko

Applicant

ABSA Bank Ltd

Respondent

African Bank Ltd

Respondent

Ellerine Holdings Limited

Respondent

Edcon (Pty) Ltd (Jet Stores)

Respondent

Orange Cash Loans

Respondent

Procedural Posture

Consent Order Application / Application for Consent Order Under National Credit Act; Referral to Magistrate's Court

Legal Issues

  1. 1 Whether the applicant is over-indebted within the meaning of section 79 of the National Credit Act.
  2. 2 Whether any of the respondents granted credit to the applicant recklessly.
  3. 3 Whether the Tribunal has jurisdiction to grant a consent order or must refer the matter to the magistrate's court.

Ratio Decidendi

The Tribunal found, based on the applicant's disposable income and total indebtedness, that she was over-indebted as defined in section 79 of the National Credit Act. Her repayment history indicated extreme difficulty in satisfying her obligations in a timely manner. There was also evidence suggesting that some credit may have been granted recklessly. As a result, the Tribunal lacked jurisdiction to grant the consent order and was required to refer the matter to the magistrate's court for judicial oversight and consideration of possible reckless lending. The Tribunal further referred the matter to the National Credit Regulator for investigation into prohibited conduct by the respondents.

Court Disposition

Application for consent order refused; matter referred to National Credit Regulator and magistrate's court.

Orders

  • The application for a consent order is refused.
  • The matter is referred to the National Credit Regulator to investigate possible prohibited conduct by the respondents.