National Credit Reguator v Du Plessis NO and Others (NCT/103940/2018/57(1)) [2020] ZANCT 9 (5 April 2020)

National Credit Reguator v Du Plessis NO and Others (NCT/103940/2018/57(1)) [2020] ZANCT 9 (5 April 2020)

The Tribunal found that PCL Trust, through its trustees, repeatedly contravened the National Credit Act and its regulations by failing to display the correct registration certificate, using misleading and deceptive trading names, failing to conduct proper affordability assessments, granting reckless credit, retaining consumer instruments unlawfully, and failing to keep adequate records. The trustees were held personally liable for the prohibited conduct as fiduciaries of the trust. The Tribunal rejected the Respondents' arguments regarding deregistration and lack of accountability, finding that the trust remained registered and operational at the time of the contraventions. The Tribunal...

Citation
[2020] ZANCT 9
Parties
Applicant: National Credit Regulator; Respondent: Leon Antonius Du Plessis Nomine Officii; Respondent: Eulien Du Plessis Nomine Officii; Respondent: PCL Trust (IT5627/07)
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
5 April 2020
Case Number
NCT/103940/2018/57(1)
Procedural Posture
Review Application / Final Judgment After Opposed Hearing
Outcome
The application is granted. The Respondents are found to have repeatedly contravened the National Credit Act and are subject to cancellation of registration, setting aside of reckless credit agreements, appointment of an auditor, and imposition of an administrative fine.
Judges
M Peenze, T Bailey, J Simpson
Legal Topics
National Credit Act, Reckless Lending, Affordability Assessment, Credit Provider Registration, Administrative Penalty, Record Keeping Requirements
Banking and Finance Civil Procedure Commercial and Corporate National Credit Act Reckless Lending Affordability Assessment Credit Provider Registration Administrative Penalty +1 more

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Parties

National Credit Regulator

Applicant

Leon Antonius Du Plessis Nomine Officii

Respondent

Eulien Du Plessis Nomine Officii

Respondent

PCL Trust (IT5627/07)

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Hearing

Legal Issues

  1. 1 Whether the Respondents repeatedly contravened the National Credit Act, regulations, and conditions of registration as a credit provider.
  2. 2 Whether the Respondents engaged in prohibited conduct by failing to conduct proper affordability assessments and granting reckless credit.
  3. 3 Whether the Respondents failed to comply with record-keeping and registration requirements under the Act.

Ratio Decidendi

The Tribunal found that PCL Trust, through its trustees, repeatedly contravened the National Credit Act and its regulations by failing to display the correct registration certificate, using misleading and deceptive trading names, failing to conduct proper affordability assessments, granting reckless credit, retaining consumer instruments unlawfully, and failing to keep adequate records. The trustees were held personally liable for the prohibited conduct as fiduciaries of the trust. The Tribunal rejected the Respondents' arguments regarding deregistration and lack of accountability, finding that the trust remained registered and operational at the time of the contraventions. The Tribunal...

Court Disposition

The application is granted. The Respondents are found to have repeatedly contravened the National Credit Act and are subject to cancellation of registration, setting aside of reckless credit agreements, appointment of an auditor, and imposition of an administrative fine.

Orders

  • The Respondents have repeatedly contravened sections 81(2)(a)(ii) and (iii) read with Regulation 23A; Regulation 23A (3), (8), (9), (10), (12)(a)-(c), and (13); section 81(3) read with section 80(1)(a); section 81(3) read with section 88(4); section 170 read with Regulation 55(1)(b)(vi); section 92(1) read with...
  • The repeated contraventions are declared prohibited conduct in terms of section 150(a) of the Act.