Motor Finance Corporation (MFC), A Division of Nedbank Limited v Benay Sager and Others (NCT/105280/2018/165) [2018] ZANCT 74 (13 June 2018)

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

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/105280/2018/165

In the matter between:

THE MOTOR FINANCE CORPORATION (MFC),

A DIVISION OF NEDBANK LIMITED

APPLICANT

and

BENAY SAGER (NCRDC 2484) 1ST RESPONDENT/ DEBT COUNSELLOR TRIMESHNIE RAMCHUNDER ID [….] 2ND RESPONDENT/CONSUMER ABSA BANK LIMITED 3RD RESPONDENT/CREDIT PROVIDER DIRECT AXIS (SA) (PTY) LIMITED ON BEHALF OF FIRST RAND BANK LIMITED 4TH RESPONDENT/CREDIT PROVIDER RCS STANDARD BANK OF SOUTH AFRICA LIMITED WOOLWORTHS (PTY) LIMITED 5TH RESPONDENT/CREDIT PROVIDER 6TH RESPONDENT/CREDIT PROVIDER 7TH RESPONDENT/CREDIT PROVIDER

Coram:

Adv. J. Simpson -

Presiding Member

Ms. H. Devraj -

Tribunal Member

Prof. K. Moodaliyar - Tribunal Member

Date of Hearing – 13 June 2018

JUDGMENT AND REASONS

APPLICANT

1. The Applicant in this matter is Motor Finance Corporation (MFC), a Division of Nedbank Limited; also a registered credit provider

(hereinafter referred to as “the Applicant” or “MFC”).

2. At the hearing MFC was represented by an attorney, Ms Tanya Verdoorn of Hammond Pole attorneys.

RESPONDENTS

3. The 1st Respondent is the debt counsellor for the 2nd Respondent, who is the consumer under debt review. The 3rd to 7th Respondents are all registered credit providers (hereinafter all collectively referred to as “the Respondents”).

4. There was no appearance by any of the Respondents or any representatives on their behalf at the hearing.

APPLICATION TYPE

5. The Applicant brought an application in terms of Section 165 of the National Credit Act[1] to the Tribunal to rescind the debt re-arrangement agreement, which was made an order of the Tribunal on 13 October 2017 under case number NCT/83790/2017/138.

CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS

6. On 18 April 2018, the Applicant filed the Section 165 application with the Tribunal. The Application was served on the Respondents by email (by consent) on 16 April 2018. The Registrar issued a notice of complete filing to the parties on 23 April 2018. A notice of set down was issued to all the parties on 8 May 2018.

7. In terms of Rule 13 of the Rules of the Tribunal[2], the Respondents had to respond to the application within 15 business days by serving an answering affidavit on the Applicant. The Respondents however failed to do so.

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

9. The Registrar however set the matter down for hearing on a default basis due to the pleadings being closed.

10. Rule 13(5) provides as follows:

“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”

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

12. The Tribunal is satisfied that the application was adequately served on the Respondents. The matter therefore proceeded on a default basis.

BACKGROUND

13. During June 2017, the debt counsellor, Mr Benay Sager, applied for an order confirming the debt restructuring agreement between the parties as an order of the Tribunal. The order was granted by the Tribunal on 13 October 2017 under case number NCT/83790/2017/138.

14. MFC submits that it initially accepted the proposal made by the debt counsellor but it subsequently filed an affidavit opposing the application for a consent order on 19 September 2017 due to the Consumer failing to pay the agreed instalments on her loan. Despite the notice of opposition being filed, on 13 October 2017 an order was issued by the Tribunal confirming the debt re-arrangement as an order of the Tribunal. The Tribunal member granting the order was not made aware of the notice of opposition. It appears the Registrar was made aware of the notice of opposition being filed and brought it before another Tribunal member who then issued a refusal to grant the application for a consent order on 20 October 2017. This Tribunal member was also not informed of the order that had already been granted on 13 October 2018.

APPLICABLE SECTIONS OF THE ACT

15. The application is brought in terms of Section 165 of the Act, which states:

“Variation of order

The Tribunal, acting of its own accord or on application by a person affected by a decision or order, may vary or rescind its decision or order-

(a) erroneously sought or granted in the absence of a party affected by it;

(b) in which there is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

(c) made or granted as a result of a mistake common to all the parties to the proceedings”.

CONSIDERATION OF SECTION 165 OF THE ACT

16. Section 165 of the Act provides for a rescission or variation of an order granted by the Tribunal “acting of its own accord or on application by a person affected by a decision or order.” Section 165 further prescribes that such a rescission or variation may only be granted in the following instances:

· When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it;

· There is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

· Made or granted as a result of a mistake common to all the parties to the proceedings.

Consideration of the evidence

17. It is clear that MFC had filed an affidavit opposing the application by the debt counsellor. This was filed prior to the order being granted on 13 October 2017. Had the opposition to the application been brought to the attention of the Tribunal member at the time, the application would have been refused.

18. In accordance with section 88(8) of the NCA all the credit providers must accept the proposal made by the debt counsellor. The debt

re-arrangement cannot be made an order of the Tribunal is one or more of the credit providers do not accept the proposal or oppose the application.

19. The subsequent refusal of the application on 20 October 2017 could not cure or set aside the previous order granted. The original order must be set aside.

20. In accordance with section 165(a) of the NCA, the order dated 13 October 2017 must therefore be rescinded, as the application was erroneously sought by the debt counsellor in the absence of MFC.

ORDER

21. Accordingly, the Tribunal makes the following order:-

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21

21.1 The application to rescind the order is granted. The order confirming the debt re-arrangement as an order of the Tribunal, dated 13 October 2017 is hereby rescinded.

21.2 There is no order as to costs.

Thus done and signed at Centurion on 13 June 2018.

{signed}

Adv. J Simpson

Presiding Tribunal Member

Ms. H. Devraj (Tribunal Member) and Prof. Moodaliyar (Tribunal Member) concurring.

[1] Act 34 of 2005 (hereinafter referred to “the Act”).

[2] 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.