Magwentshu v Edwards (NCT/240891/2022/141(1)(b)) [2023] ZANCT 52 (25 August 2023)

IN THE NATIONAL CONSUMER TRIBUNAL

SITUATED AT CENTURION

Case number: NCT/240891/2022/141(1)(b)

In the matter between: AYANDA PENNELOPE PRIMROSE MAGWENTSHU APPLICANT and AZMI EDWARDS (NCRDC3798) RESPONDENT

Coram:

Dr A Potwana

Presiding Tribunal Member

Ms P Manzi-Ntshingila Tribunal Member

Mr C Ntsoane

Tribunal Member

Date of hearing 22 August 2023

JUDGMENT AND REASONS

THE PARTIES

1. The applicant is Ayanda Pennelope Primrose Magwentshu, a female credit consumer who lodged a complaint with the National Credit Regulator (NCR) against the respondent in terms of the National Credit Act 34 of 2005 (NCA). During the hearing, the applicant represented herself.

2. The respondent is Azmi Edwards (NCRDC 3798), a male debt counsellor registered with the NCR. During the hearing, the applicant represented himself.

TYPE OF APPLICATION AND JURISDICTION

3. The applicant brought an application for leave to refer a complaint to the Tribunal in terms of section 141(1)(b) of the NCA after the NCR issued a notice of non-referral in response to the applicant’s complaint. The Tribunal granted the application.

4. The Tribunal has jurisdiction to hear this matter in terms of section 27(a) of the NCA.

ISSUE TO BE DECIDED

5. The Tribunal is required to determine whether it should order the respondent to refund to the applicant the sum of R7000.00 and to take the necessary steps to have the applicant removed from debt review and have her credit status with credit bureaus restored.

INTRODUCTION

6. The essence of the applicant’s case is that the respondent placed her under debt review without her knowledge and consent. She alleges that the respondent’s consultant lied to her concerning the services that were offered to her. The consultant, Dumani, repeatedly advised her that he did not work for a debt counselling concern but an entity that was working with the NCR to ensure that consumers did not pay a lot of interest. Dumani informed the applicant that they were going to negotiate with her creditors so that she could finish paying for her car in December 2022.

7. On two previous occasions, the hearing was postponed specifically to give the respondent an opportunity to file condonation applications for the late filing of answering affidavits. However, the respondent failed to do so.

FACTS

8. On the day of the hearing, the respondent was present. The presiding Tribunal member asked him if he was willing to testify and clarify specific issues for the benefit of the Tribunal. He agreed and signed the prescribed oath. He submitted that the applicant signed a Power of Attorney and a Form 16 by digitally appending a single signature to both documents. He could not say with certainty that the applicant was not misled by his consultant. He testified that he did not have a problem with refunding the sum of R7000.00 paid by the applicant to him.

9. The applicant argued that she wants both the refund of the sum of R7000.00 and that the respondent be ordered to take the necessary steps to have her declared not over-indebted because she was misled into believing that she was not entering into a debt review process.

THE APPLICABLE LAW

10. Rule 13(5) of the Tribunal Rules states, “Any fact or allegation in the application or referral not specifically denied or admitted in an answering affidavit, will be deemed to have been admitted.”

ANALYSIS OF THE EVIDENCE

11. The application is not defended. In terms of Rule 13(5) of the Tribunal Rules, any fact or allegation not specifically admitted or denied within an answering affidavit is deemed admitted. Therefore, in the absence of an answering affidavit, the respondent is deemed to have admitted the allegations made by the applicant. In any event, the respondent did not deny that the applicant was misled by his consultant. In the circumstances, the applicant’s version that she was misled into entering into debt counselling without her knowledge or consent stands.

CONCLUSION

12. Misleading consumers into entering debt review without their knowledge and consent cannot be countenanced. It is wasteful to the resources of this Tribunal or the Magistrates’ Courts that must adjudicate on such applications. Moreover, it can be extremely frustrating to consumers who would suddenly discover that they were placed under debt review without their knowledge and consent. The respondent’s conduct, through his agent, not only constitutes an abuse of the legal mechanisms intended to protect financially struggling consumers but infringes on the rights of the applicant to apply for and access credit. Concomitant legal action should be taken against debt counsellors who engage in this fraudulent and contemptible behaviour. The Registrar should present a copy of this judgement to the NCR’s Chief Executive Officer in the hope that the NCR, as the registrar and regulator of debt counsellors, will take appropriate legal action against debt counsellors whose call centre agents engage in this kind of behaviour.

13. The respondent’s unprofessional and unethical conduct violates the applicant’s right to a credit record that accurately reflects her credit status and deprives her of the opportunity to apply for and access credit. He must refund the applicant the sum of R7000.00 and, at his own cost, file an application to have the applicant declared not over-indebted with the relevant Magistrates’ Court.

ORDER

14. The Tribunal makes the following order:

14.1. The respondent must refund the applicant the sum of R7000.00 within seven ordinary days of the issuing of this judgment,

14.2. At his own cost, the respondent must file an application to have the applicant declared not over-indebted with the relevant Magistrates’ Court within 30 ordinary days of the issuing of this judgment,

14.3. The Registrar must transmit a copy of this judgement to the National Credit Regulator’s Chief Executive Officer, and

14.4. No order is made as to costs.

Thus, done and dated 25 August 2023.

Dr A Potwana

Presiding Tribunal Member

With Ms P Manzi-Ntshingila and Mr C Ntsoane (Tribunal Members) concurring.