McKeen v First National Bank (A division of First Rand Bank Limited) (NCT/943/2010/149(1)(P)) [2012] ZANCT 2 (26 January 2012)

McKeen v First National Bank (A division of First Rand Bank Limited) (NCT/943/2010/149(1)(P)) [2012] ZANCT 2 (26 January 2012)

The Tribunal found that it lacked jurisdiction to grant the relief sought by the Applicant. The property had already been sold in execution pursuant to a High Court order before the Applicant approached the Tribunal, and the alleged harm had already occurred. The Tribunal cannot grant interim relief to prevent harm that has already eventuated. Furthermore, the Tribunal does not have the power under the National Credit Act to set aside a High Court order or rescind a sale in execution of immoveable property. Section 128 only empowers the Tribunal to review a sale of moveable property under certain credit agreements, not to set aside sales of immoveable property. Section 131 does not apply...

Citation
[2012] ZANCT 2
Parties
Applicant: Sandra McKeen; Respondent: First National Bank (A division of First Rand Bank Limited)
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
26 January 2012
Case Number
NCT/943/2010/149(1)(P)
Procedural Posture
Urgent Application / Application for Interim Relief Under Section 149(1) of the National Credit Act
Outcome
Application for interim relief refused.
Judges
T Woker, D Terblanche, X May
Legal Topics
National Credit Act, Interim Relief, Sale in Execution, High Court Judgment, Jurisdiction of Tribunal
Banking and Finance Civil Procedure National Credit Act Interim Relief Sale in Execution High Court Judgment Jurisdiction of Tribunal

Case Brief

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Parties

Sandra McKeen

Applicant

First National Bank (A division of First Rand Bank Limited)

Respondent

Procedural Posture

Urgent Application / Application for Interim Relief Under Section 149(1) of the National Credit Act

Legal Issues

  1. 1 Does the Tribunal have jurisdiction to grant interim relief against a third party not before it?
  2. 2 Can the Tribunal rescind a sale in execution ordered by the High Court?
  3. 3 Is interim relief appropriate when the alleged harm has already occurred?

Ratio Decidendi

The Tribunal found that it lacked jurisdiction to grant the relief sought by the Applicant. The property had already been sold in execution pursuant to a High Court order before the Applicant approached the Tribunal, and the alleged harm had already occurred. The Tribunal cannot grant interim relief to prevent harm that has already eventuated. Furthermore, the Tribunal does not have the power under the National Credit Act to set aside a High Court order or rescind a sale in execution of immoveable property. Section 128 only empowers the Tribunal to review a sale of moveable property under certain credit agreements, not to set aside sales of immoveable property. Section 131 does not apply...

Court Disposition

Application for interim relief refused.

Orders

  • The application for interim relief is refused.
  • No order is made as to costs.