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South Africa Order

National Consumer Tribunal

Mokoena and Another v MFC Division of Nedbank Limited and Others (NCT/19119/2014/138(1)(P)) [2016] ZANCT 38 (28 July 2016)

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01

Holding and result

The Tribunal found that the applicants and respondents were parties to a debt re-arrangement facilitated by a debt counsellor under section 86(7)(b) read with section 138(1) of the National Credit Act. The Tribunal was satisfied that the revised payment structure complied with the Act and confirmed it as an order of the Tribunal in terms of section 150. The Tribunal emphasized the legal consequences of non-compliance, including the possibility of enforcement as a High Court order and the commission of an offence under section 160(1) of the Act. The parties were reminded of their rights to apply for a clearance certificate and the obligations of credit bureaus to expunge records upon receipt of such certificate.

Court disposition

The application to vary the debt re-arrangement order was granted and the revised payment structure was confirmed as an order of the Tribunal.

Orders

  • The payment structure between the consumers and the credit providers is confirmed as an order of the Tribunal in terms of section 150 of the National Credit Act.
  • The parties are directed to comply with the revised payment arrangements as set out in the order.
  • The parties are warned that failure to comply with the order constitutes an offence under section 160(1) of the Act.

02

Material facts

Parties

Luciano Lesego Koena Mokoena

Applicant

Nonhlanhla Eliza Mokoena

Applicant

MFC Division of Nedbank Limited

Respondent

First Rand Bank Limited

Respondent

Nedbank Limited

Respondent

First National Bank a Division of First Rand Bank Limited

Respondent

Wonga Finance SA (Pty) Limited

Respondent

African Bank Limited

Respondent

FinChoice (Pty) Limited

Respondent

HomeChoice (Pty) Limited

Respondent

Standard Bank of South Africa Limited

Respondent

Edcon (Pty) Limited

Respondent

Capfin (Pty) Limited

Respondent

Capitec Bank Limited

Respondent

Amounts and remedies

  • MFC Division of Nedbank Limited Monthly Instalment: ZAR 1,890.8
  • MFC Division of Nedbank Limited Balance: ZAR 123,047.5
  • First Rand Bank Limited Monthly Instalment: ZAR 657.11
  • First Rand Bank Limited Balance: ZAR 28,707.86
  • Nedbank Limited Monthly Instalment: ZAR 4,118.81
  • Nedbank Limited Balance: ZAR 610,815.31
  • First Rand Bank Limited (2) Monthly Instalment: ZAR 447.23
  • First Rand Bank Limited (2) Balance: ZAR 20,899.36
  • Nedbank Limited (2) Monthly Instalment: ZAR 1,389.39
  • Nedbank Limited (2) Balance: ZAR 50,741.59
  • Wonga Finance SA (pty) Limited Monthly Instalment: ZAR 74.78
  • Wonga Finance SA (pty) Limited Balance: ZAR 3,905.83
  • African Bank Limited Monthly Instalment: ZAR 170.85
  • African Bank Limited Balance: ZAR 6,424.11
  • Fin Choice (pty) Limited Monthly Instalment: ZAR 234.58
  • Fin Choice (pty) Limited Balance: ZAR 5,483.44
  • Fin Choice (pty) Limited Monthly Fee: ZAR 199.48
  • Home Choice (pty) Limited Monthly Instalment: ZAR 97.28
  • Home Choice (pty) Limited Balance: ZAR 3,105.72
  • First National Bank Monthly Instalment: ZAR 1,209
  • First National Bank Balance: ZAR 47,392.74
  • Standard Bank of South Africa Limited Monthly Instalment: ZAR 205.02
  • Standard Bank of South Africa Limited Balance: ZAR 9,867.34
  • Edcon (pty) Limited Monthly Instalment: ZAR 226.98
  • Edcon (pty) Limited Balance: ZAR 10,568.46
  • Edcon (pty) Limited Monthly Fee: ZAR 109.15
  • Capfin (pty) Limited Monthly Instalment: ZAR 100.84
  • Capfin (pty) Limited Balance: ZAR 3,898.25
  • Capitec Bank Limited Monthly Instalment: ZAR 1,784.92
  • Capitec Bank Limited Balance: ZAR 76,900.71
  • Nedbank Limited (3) Monthly Instalment: ZAR 72.53
  • Nedbank Limited (3) Balance: ZAR 243.94

03

Procedural history

  1. Posture

    Review Application / Application to Vary Debt Re Arrangement Order

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants sought a variation of the existing debt re-arrangement order to reflect updated payment arrangements with the listed credit providers, as facilitated by a debt counsellor under section 86(7)(b) of the National Credit Act. They argued that the revised payment structure was necessary to ensure compliance with their obligations and to obtain relief under the Act.
Respondent
The credit providers did not oppose the application and were parties to the debt re-arrangement facilitated by the debt counsellor. No substantive arguments were advanced against the variation, and the respondents accepted the revised payment structure as proposed.

05

Court’s reasoning

  1. 01

    Section 71(1) of the National Credit Act, Act 34 of 2005

    A consumer whose debts have been re-arranged may apply for a clearance certificate at any time.

  2. 02

    Section 71(5) of the National Credit Act, Act 34 of 2005

    Upon receiving a clearance certificate, a credit bureau or the national credit register must expunge the record of the debt re-arrangement order or agreement.

  3. 03

    Section 152 of the National Credit Act, Act 34 of 2005

    Any decision, judgment, or order of the Tribunal may be served, executed, and enforced as if it were an order of the High Court.

06

Ratio, limits and disposition

Ratio decidendi

The Tribunal found that the applicants and respondents were parties to a debt re-arrangement facilitated by a debt counsellor under section 86(7)(b) read with section 138(1) of the National Credit Act. The Tribunal was satisfied that the revised payment structure complied with the Act and confirmed it as an order of the Tribunal in terms of section 150. The Tribunal emphasized the legal consequences of non-compliance, including the possibility of enforcement as a High Court order and the commission of an offence under section 160(1) of the Act. The parties were reminded of their rights to apply for a clearance certificate and the obligations of credit bureaus to expunge records upon receipt of such certificate.

Obiter and limits

  • The Tribunal highlighted that failure to comply with its order constitutes an offence under section 160(1) of the Act.
  • The Tribunal drew attention to the process for obtaining a clearance certificate and the effect on credit records.

Court disposition

The application to vary the debt re-arrangement order was granted and the revised payment structure was confirmed as an order of the Tribunal.

  • The payment structure between the consumers and the credit providers is confirmed as an order of the Tribunal in terms of section 150 of the National Credit Act.
  • The parties are directed to comply with the revised payment arrangements as set out in the order.
  • The parties are warned that failure to comply with the order constitutes an offence under section 160(1) of the Act.

Source and reliance status

National Consumer Tribunal

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Judgment text

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Source document

National Consumer Tribunal

Order

[2016] ZANCT 38

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

ANNEXURE

A

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

AT CENTURION

Case number: NCT/19119/2014/138(1) (P)

In the matter between:

LUCIANO

LESEGO KOENA MOKOENA 1st Applicant / Consumer ID: [8.....]

AND

NONHLANHLA

ELIZA

MOKOENA ID : [8.....] 2nd Applicant / Consumer

And

MFC

DIVISION OF NEDBANK LIMITED

FIRST

RAND BANK LIMITED

NEDBANK

LIMITED

FIRST

NATIONAL BANK A DIVISION OF FIRST RAND BANK LIMITED

WONGA FINANCE SA (PTY) LIMITED

AFRICAN

BANK LIMITED

FINCHOICE (PTY) LIMITED

HOMECHOICE (PTY) LIMITED

STANDARD

BANK OF SOUTH AFRICA LIMITED

EDCON (PTY) LIMITED

CAPFIN (PTY) LIMITED

CAPITEC

BANK LIMITED 1st Credit Provider 2nd Credit Provider 3rd Credit Provider 4th Credit Provider 5th Credit Provider 6th Credit Provider 7th Credit Provider 8th Credit Provider 9th Credit Provider 10th Credit Provider 11th Credit Provider 12th Credit Provider

CONSENT ORDER

An order granting the debt re-arrangement was made an order of the Tribunal and issued on 8 June 2014. An application was lodged on 22 February 2016 to vary the order granted on 8 June 2014 and upheld on 20 July 2016.

Accordingly, the Tribunal, having read the papers filed of record and being satisfied that the Applicant(s) and The Respondent(s) are parties to a debt re-arrangement facilitated by a debt counsellor under section 86(7)(b) read with section 138(1) of The National Credit Act, Act 34 of 2005 (the Act), hereby makes the following order:

The payment structure between the consumer(s) and the credit provider(s) is confirmed as an order of the Tribunal in terms of section 150 of the Act.

Creditor Account reference Annual interest rate Monthly instalment Balance Estimated repayment term in months Monthly fee MFC a Division of Nedbank Limited 44082220001 6.00% R1 890.80 R123 047.50 67 First Rand Bank Limited 85191995613 8.18% R657.11 R28 707.86 52 Nedbank Limited 8001282419201 6.50% R4 118.81 R610 815.31 58 months concession period First Rand Bank Limited 4303430033804001 6.75% R447.23 R20 899.36 55 Nedbank Limited 6001288847801 4.46 R1 389.39 R50 741.59 55 Wonga Finance (SA)(Pty) Limited LA253646 0.01 R74.78 R3 905.83 52 African Bank Limited 5404381E002 7.30 R170.85 R6 424.11 52 FinChoice (Pty) Limited 8402100781086 13.91 R234.58 R5 483.44 1 R199.48 35 Home Choice (Pty) Limited 240359368 0.00 R97.28 R3 105.72 33 First National Bank 4000028625717 8.79 R1 209.00 R47 392.74 57 Standard Bank of South Africa Limited 5104323340480474 6.02 R205.02 R9 867.34 55 Edcon (Pty) Ltd 7000100100058084740 8.75 R226.98 R10 568.46 54 R109.15 1 Capfin (Pty) Ltd C1696682 13.55 R100.84 R3 898.25 55 Capitec Bank Limited 1360834395 8.38 R1 784.92 R76 900.71 55 Nedbank Limited 1305874186 4.46 R72.53 R243.94 32

The parties' attention is drawn to sections 71(1), 71(5)(a) and 152 of the Act which states as follows: Section 71(1) A consumer, whose debts have been re-arranged in terms of part D of this chapter, may apply to a debt counsellor at any time for a clearance certificate. Section 71(5) Upon receiving a copy of a clearance certificate, a credit bureau, or the national credit register must expunge from its records the fact that the consumer was subject to the relevant debt re-arrangement order or agreement. Section 152 Any decision, judgment or order of the Tribunal may be served, executed and enforced as if it were an order of the High Court. The parties are warned that failure to comply with the order of the Tribunal constitutes an offence in terms of section 160(1) of the Act. Dated at CENTURION on the 28th day of July 2016 (Signed)

P

A BECK Presiding Member National Consumer Tribunal H Devraj (Member) and F Sibanda (Member) concurring

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Authorities

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National Credit Act, Act 34 of 2005

Legislation

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