Moolla v Abrahams (NCT/179004/2021/141(1)) [2021] ZANCT 19 (6 July 2021)

IN THE NATIONAL

CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/179004/2021/141(1)

In the matter between:

BIBI

AMINA MOOLLA

APPLICANT

And

RUDOWYN

ROBERTO ABRAHAMS

RESPONDENT

Coram

Adv J Simpson - Presiding Tribunal Member

Dr M Peenze - Tribunal Member

Prof B Dumisa - Tribunal Member

Date of consideration (in chambers) - 6 July 2021

Date of Judgment

- 6 July 2021

LEAVE TO REFER

JUDGMENT AND REASONS

THE PARTIES

1. The Applicant in this matter is Bibi Amina Moolla, an adult female residing in Cape Town (“the Applicant” or “Ms Moolla”).

2. The Respondent is Rudowyn Roberto Abrahams (“the Respondent” or “Mr Abrahams”’). Mr Abrahams was a debt counsellor before being deregistered.

APPLICATION TYPE

3. This is an application in terms of Section 141(1) of the National Credit Act, Act 34 of 2005 (“the NCA”).

4. Section 141(1) of the NCA states the following –

“Referral to Tribunal.—(1) If the National Credit Regulator issues a notice of non-referral in response to a complaint other than a complaint concerning section 61 or an offence in terms of this Act, the complainant concerned may refer the matter directly to—

(a) the consumer court of the province within which the complainant resides, or in which the respondent has its principal place of business in the Republic, subject to the provincial legislation governing the operation of that consumer court; or

(b) the Tribunal, with the leave of the Tribunal.”

CONSIDERATION

OF THE EVIDENCE ON A DEFAULT BASIS

5. On 18 February 2021, the Applicant filed the application with the Tribunal. The application was served on the Respondent via registered post on 17 February 2021. The Applicant used an address for the Respondent provided by the National Credit Regulator (“NCR”). The address is 58 Bath Street Montagu. On 19 February 2021, the Tribunal’s Registrar issued a notice of filing to all the parties.

6. In terms of Rule 13 of the Tribunal Rules,[1] the Respondent had 15 business days to serve an answering affidavit and file the same with the Tribunal’s Registrar. However, The Respondent failed to do so.

7. The Applicant did not file an application for a default order in terms of Rule 25(2).

8. On 16 March 2021, the Tribunal’s Registrar issued a notice of set down to all the parties setting the matter down for hearing on 22 April 2021 on a default basis due to the pleadings being closed.

9. On 22 April 2021, the matter was postponed on application by Ms Moolla. The matter was again set down for 6 July 2021 for hearing. Due to a change in the Tribunal’s hearing processes, the application for leave to refer was considered in chambers on 6 July 2021. It was not necessary for a formal hearing to be held.

10. The Presiding Tribunal member is satisfied that the notice of set down was adequately served on the Respondent. The matter can be decided on a default basis.

11. Rule 13(5) provides that:

“Any fact or allegation in the application or referral not specifically denied or admitted in the answering affidavit, will be deemed to have been admitted.”

12. Therefore, in the absence of any answering affidavit filed by the Respondent, the Applicant’s application and all of the allegations contained therein are deemed admitted.

BACKGROUND

13. In May 2015, Ms Moolla was telephonically contacted by the Respondent regarding debt review. She provided him with information regarding her income and expenses. However, she denies she ever applied for debt review or signed any forms in this regard. She also did not make any payments towards a debt review plan. In May 2019, she received a credit report which reflected that she was under debt review. This report has prevented her from applying for a bond. She wants the debt review listing removed from her credit profile.

14. In November 2019, Ms Moolla lodged a complaint against Mr Abrahams with the NCR. The NCR issued a Notice of non-referral dated 4 February 2021 stating that Mr Abrahams had already been deregistered as a debt counsellor by order of the Tribunal. According to the NCR’s systems, Ms Moolla’s debt review application had already been loaded on the “Debthelp” system on 19 May 2014. The Notice further stated that the complaint could not be referred, as more than three years had elapsed since the listing. Therefore, the NCR was not prepared to take the matter any further.

APPLICATION

FOR LEAVE

15. In terms of section 141(1) of the NCA, the Applicant may only refer the matter directly to the Tribunal with leave of the Tribunal.

16. Previously, the Tribunal held a formal hearing on leave to refer with all the parties present. In the matter of Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others (Case no 314/2020) [2021] ZASCA 91 (25 June 2021) SAFLII, the court provided useful guidance to the Tribunal in decisions regarding leave to refer. It held that a formal hearing on leave to refer was unnecessary, there was no test to be applied and the decision to consider leave could not be appealed. The court held -

“[15] As I have explained, the NCA provides for an expeditious, informal and cost-effective complaints procedure. Section 141(1)(b) confers on the Tribunal a wide, largely unfettered discretion to permit a direct referral. The NCA does not require a formal application to be made and it is not necessary for purposes of the present appeal, nor is it desirable, to circumscribe the factors to which the Tribunal should have regard. There is no test to be applied in deciding whether or not to grant a direct referral to it in respect of a complaint. The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings by the Regulator, and to decide whether it deserves its attention. Circumstances which may influence its decision may include the prospects of success, the importance of the issue, the public interest to have a decision on the matter, the allocation of resources, the complainant’s interest in the relief sought and the fact that the Regulator did not consider that it merited a hearing before the Tribunal. The list is not intended to be exhaustive.”

17. As there is no test to be applied, the Tribunal will consider the matter in the general context of the circumstances as submitted by the Applicant.

18. Based on the evidence submitted, the complaint has prescribed. The NCR’s Notice states that Ms Moolla was first registered under debt review on 19 May 2014. Based on Ms Moolla’s complaint to the NCR, she was contacted by the debt counsellor in May 2015.

19. Section 166[2] of the NCA states that a complaint may not be referred or made to the Tribunal more than three years after the act or omission took place. The complaint arose in April 2014, when Ms Moolla was registered as being under debt review. She had until April 2017 to file the application with the Tribunal. The application was only filed with the Tribunal in February 2021. Even if her date of May 2015 is used, her application is still out of time. The NCA does not provide any extension of the time based on when the consumer discovered the act or omission. The Tribunal does not have any power or discretion to extend this period or interrupt the prescription period[3].

20. Even though the Tribunal cannot deal with the application, it can be noted that Ms Moolla’s evidence in this application stands uncontested. She submitted that she never agreed to be placed under debt review and never made any payments. The NCR’s Notice refers to a judgment of the Tribunal in which Mr Abrahams was found to have engaged in prohibited conduct and was deregistered as a debt counsellor[4]. Using this information, Ms Moolla is at liberty to approach the Credit Ombud that deals with disputes regarding credit bureau information.

CONCLUSION

21. The Tribunal finds that the complaint has prescribed, and the Tribunal cannot hear it.

ORDER

22. Accordingly, the Tribunal makes the following order –

22.2 The Applicant’s application for leave to refer the matter directly to the Tribunal is refused; and

22.3 There is no order as to costs.

THUS DONE IN PRETORIA ON THIS 6TH DAY OF JULY 2021

[signed]

Adv. J. Simpson

Presiding Tribunal Member

Prof B Dumisa (Tribunal Member) and Dr M Peenze (Tribunal Member) concurring

[1] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, 2007 (Government Gazette No. 30225). As amended.

[2] 166. Limitations of bringing action.— (1) A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after— (a) the act or omission that is the cause of the complaint; or (b) in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.

[2] 166. Limitations of bringing action.— (1) A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after—

(a) the act or omission that is the cause of the complaint; or

(b) in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.

[3] First Rand Bank Ltd v Ludick A 277/2019 High Court of South Africa, Gauteng Division, Pretoria, 18 June 2020 (unreported) at para [16].

[4] National Credit Regulator v RR Abrahams (NCT/132322/2019/57(1)) [2020] ZANCT 5 (26 February 2020) SAFLII