Mthethwa v ABSA Bank Limited (NCT/3907/2012/128(1) (P) NCA) [2013] ZANCT 50 (9 October 2013)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case number: NCT/3907/2012/128(1) (P) NCA

DATE: 09 OCTOBER 2013

In the matter between:

MTHETHWA VUSUMUZI FRANCIS..........................................APPLICANT

And

ABSA

BANK LIMITED..........................................................RESPONDENT

Coram:

Prof J Maseko – Presiding Member

Ms L Best – Panel Member

Mr X May – Panel Member

.

Date(s) of Hearing – 14 June 2013 and 9 October 2013

JUDGMENT

AND REASONS

THE

APPLICANT

1. The Applicant in this matter is Vusumuzi Francis Mthethwa, an adult male domiciled in Sunningdale, in the KZN Province (“the

Applicant”).

2. The Applicant is also a consumer in terms of Section 1 of the National Credit Act 34 of 2005 (the “NCA” or the “Act”)

(also referred to hereafter as “the Consumer”).

3. At the hearings of both 14 June 2013 and 9 October 2013, the Applicant appeared in person not represented.

THE

RESPONDENT

4. The Respondent is ABSA Bank Limited (Registration 1986/004794/06) with principal place of business in Johannesburg (“the

Respondent”) 1.

5. The Respondent (ABSA) is also a registered credit provider with the National Credit Regulator with registration number NCRCP7

(hereinafter also referred to as “the Credit Provider”).

TYPE

OF APPLICATION

6. This application was lodged in terms of section 128(1) of the National Credit Act, 34 of 2005 (hereinafter referred to as “the

Act”). The aim of the application was for this Tribunal to review the sale of goods by the TRespondent to the Applicant. This application was made on the grounds that the Respondent did not sell the goods as soon as reasonably practicable - alternatively did not sell the goods at the best price reasonably obtainable.

BACKGROUND

7. The Applicant brought an interim relief application in October 20102 against the Respondent on the grounds that it sought to sell a motor vehicle without having complied with the procedural requirements laid out in sections 127 and 129 of the Act. This Application was not heard and withdrawn by the Applicant, as the Respondent proceeded to sell the vehicle by an auction. The purpose of that application therefore had since fallen away.

8. The Applicant, in February 2012, lodged an application for a review of the sale of goods by the Respondent on the grounds that the Respondent did not sell the goods as soon as reasonably practicable alternatively did not sell the goods at the best price reasonably obtainable.

9. When the Applicant lodged the application in 2012 he was requested to file proof of service of the application on the Respondent. The proof of service that he had submitted to the Tribunal was however in respect of the application of October 2010. The Applicant was requested to file proof of service relating to the current section 128 application. It appears that the current application was only served on the Respondent on 17th of May 2013. The Tribunal as a result, issued a revised Notice of Complete Filing, which affords the Respondent an opportunity to file its response on or before 7 June 2013. The Respondent then effectively had until 14 June 2013, the date of the hearing, to file a Replying affidavit if it so wished.

10. The Applicant alleged that the Respondent did not sell the motor vehicle:

(a) as soon as reasonably practicable; and

(b) for the best price reasonably obtainable.

11. The Applicant also prayed for any other appropriate order in terms of section 150(i) to give effect to the consumer’s rights in terms of the Act.

THE

LAW ON THE MATTER

12. The application was brought in terms of Section 128(1) and (2) of the Act. And section 128(1) and (2) of the Act provides that:

(1) A consumer who has unsuccessfully attempted to resolve a disputed sale of goods in terms of section 127 directly with the credit

provider, or through an alternative dispute resolution under Part A of Chapter 7, may apply to the Tribunal to review the sale.

(2) If the Tribunal considering an application in terms of this section is not satisfied that the credit provider sold the goods as soon as is reasonably practicable, or for the best price reasonably obtainable, the Tribunal may order the credit provider to pay the consumer an additional amount exceeding the net proceeds of the sale.

THE

HEARING

13. This matter was set down for hearing and subsequently heard on 14 June 2013 at the seat of the National Consumer Tribunal offices. But at the hearing of 14 June 2013, it transpired that certainty of service to the Respondent of the Application in the main case

remained uncertain.

14. And after the Consumer was mero motu accorded an opportunity to refine this proof of who the real Respondent was, he had produced a letter from a firm of attorneys confirming that the Respondent was ABSA Bank Limited.

15. This Tribunal had then in that hearing, also mero motu postponed the matter to enable service to be effected through the firm of attorneys, as the Consumer even before the hearing had already known it. He had amply displayed that he had been corresponding through them with the Respondent, but had served the papers only direct to the Respondent. The postponement was made in a written ruling, which is therefore a matter of record in its own right and will not have any further reference in this ruling.

ISSUES

TO BE DECIDED

Points in Limine

16. At the hearing and in papers, the Respondent had raised two preliminary points. The preliminary issues to be decided first in

this matter were:

a. Whether; the Applicant had unsuccessfully attempted to resolve the disputed sale of goods in terms of section 127 directly with the Respondent, or through alternative dispute resolution under Part A of Chapter 7 of the Act before lodging an application with the Tribunal to review the sale as required by Section 128(1) of the Act.

b. Whether the Applicant’s case should or should not be declared as having lapsed in terms of Rule 8(2) of the Rules of the Tribunal.3

The main application

17. In the main application, the issue to be decided was whether the Applicant has made out a case for review of the sale of goods after unsuccessfully attempting to resolve the dispute with the Respondent in terms of Section 128(1) and (2).

18. As it is a legal requirement and was explained in detail more than once to the benefit of the Applicant at the hearing of 9 October 2013, in the event that any of the points in limine were to succeed, the main application would fall away. However; in the event that both preliminary points raised by the Respondent were to succeed, then the main application would have to fall away.

19. The Tribunal decided to then determine the points in limine first.

RESPONDENT’S

SUBMISSIONS

20. The Respondent submitted in support of the one preliminary point, that:

a. In order for the Applicant to succeed with his application and claim before the Tribunal he must satisfy the requirements of Section 128(1) of the Act. That meant that the Applicant had to establish that he had:’

"...unsuccessfully attempted to resolve a disputed sale of goods in terms of section 127 directly with the credit provider or through alternative dispute resolution under Part A of Chapter 7."

b. The Applicant had not attempted to resolve the matter with the Respondent and this meant that this matter was not properly before

the Tribunal.

21. In his response, the applicant confirmed that the last time he had approached the Respondent with regard to this matter was before the Respondent sold the vehicle in question. He had never attempted to resolve the matter directly with the Respondent since the latter sold the vehicle in question.

22. In the light of the foregoing admission alone, there is no need to determine the second point in limine. The Consumer has by his own admission, confirmed that he had not Complied with either sections 127 or 128(1) of the Act. And that being the case, the preliminary point raised by the Respondent is sustained.

CONCLUSIONS

In the premises, it is then the ruling of this Tribunal that:

(a) The Applicant did not unsuccessfully attempt to resolve the dispute with the Respondent.

(b) The main application is therefore not properly before the Tribunal.

(c) This Tribunal will therefore, not hear the merits of this matter in its current form.

(d) The main case is hereby dismissed.

Thus done and handed down in Centurion this 14th Day of October 2013.

Prof. Joseph M. Maseko

PRESIDING

MEMBER

With Ms. Laura Best (Member) and Mr. Xolela May (Member) concurring.

1The evidence on file showing that the Consumer had actually entered into a contractual relationship with FFS Finance South Africa (Pty) Ltd t/a Volvo Car Finance, a company registered (number 1986/002238/07 in terms of the Companies Act, was explained by the Respondent along the lines that this agreement had subsequently been ceded to ABSA Bank Limited.

2NCT/956/2010/149(1)(P).

3As contained in Regulations for Matters Relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal, 2007, published under GN 789 I GG 30225 of 28 August 2007 s amended by GenN 428 in GG 34405 of 29 June 2011. Hereinafter referred to as the “Rules of the Tribunal.”