National Credit Regulator v Edwards (NCT/218082/2022/138(1)(b)) [2022] ZANCT 14 (29 March 2022)
- Citation
- [2022] ZANCT 14
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- National Consumer Tribunal
- Panel
- H Alwar
- Case number
- NCT/218082/2022/138(1)(b)
More details
- Court
- National Consumer Tribunal
- Panel
- H Alwar
- Case number
- NCT/218082/2022/138(1)(b)
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the Respondent's failure to reject the debt review application was inconsistent with the requirements of the National Credit Act and constituted prohibited conduct. The Tribunal was satisfied that the settlement agreement accurately recorded the contravention and the remedial undertakings by the Respondent. As both parties agreed to the terms of the settlement and requested confirmation, the Tribunal held that it was appropriate to confirm the agreement as a consent order under section 138(1)(b) of the Act.
Court disposition
Settlement agreement confirmed as a consent order; no order as to costs.
Orders
- The Settlement Agreement concluded on 11 February 2022 between the Applicant and Respondent, annexed as Annexure A to NCR v Azmi Edwards NCT/218082/2022/138(1)(b), is confirmed and made an order of the National Consumer Tribunal in terms of section 138(1)(b) of the National Credit Act, 2005.
- There is no order as to costs.
02
Material facts
Parties
National Credit Regulator
ApplicantAzmi Edwards
Respondent03
Procedural history
Posture
Consent Order Application / Application for Confirmation of Settlement Agreement
04
Questions and positions
Legal issues
- 01
Whether the Respondent's failure to reject the debt review application contravened the National Credit Act.
- 02
Whether the settlement agreement between the Applicant and Respondent should be confirmed as a consent order under section 138(1)(b) of the Act.
Party arguments
- Applicant
- The Applicant argued that the Respondent failed to reject the consumer's debt review application and did not terminate the process as requested, which is inconsistent with sections 86(6)(a) and 86(7)(a) of the National Credit Act. The Applicant submitted that this conduct contravened the purposes of the Act and the Respondent's conditions of registration. The Applicant sought confirmation of the settlement agreement as a consent order.
- Respondent
- The Respondent acknowledged the failure to reject the debt review application and agreed to undertake remedial actions in accordance with the Act. The Respondent consented to the settlement agreement being confirmed as a consent order and undertook to comply with the requirements of the National Credit Act going forward.
05
Court’s reasoning
Legal principles
- 01
Section 138(1)(b) National Credit Act, 2005
If a matter has been investigated by the National Credit Regulator and both parties agree to the proposed terms of an appropriate order, the Tribunal may confirm the agreement as a consent order without hearing evidence.
- 02
Section 52(5)(c) National Credit Act, 2005
Registrants must comply with their conditions of registration and the provisions of the Act.
- 03
Section 3 National Credit Act, 2005
The purposes of the Act include promoting a fair credit market, protecting consumers, preventing over-indebtedness, and providing mechanisms for debt restructuring and enforcement.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the Respondent's failure to reject the debt review application was inconsistent with the requirements of the National Credit Act and constituted prohibited conduct. The Tribunal was satisfied that the settlement agreement accurately recorded the contravention and the remedial undertakings by the Respondent. As both parties agreed to the terms of the settlement and requested confirmation, the Tribunal held that it was appropriate to confirm the agreement as a consent order under section 138(1)(b) of the Act.
Obiter and limits
- The Tribunal noted that the settlement agreement included an undertaking by the Respondent to perform debt counselling duties in accordance with the Act.
- No order as to costs was made, reflecting the consensual nature of the proceedings.
Court disposition
Settlement agreement confirmed as a consent order; no order as to costs.
- The Settlement Agreement concluded on 11 February 2022 between the Applicant and Respondent, annexed as Annexure A to NCR v Azmi Edwards NCT/218082/2022/138(1)(b), is confirmed and made an order of the National Consumer Tribunal in terms of section 138(1)(b) of the National Credit Act, 2005.
- There is no order as to costs.
Source and reliance status
National Consumer Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
National Consumer Tribunal
Judgment
IN THE NATIONAL CONSUMER
TRIBUNAL
HELD IN CENTURION
Case Number: NCT/218082/2022/138(1)(b)
In the matter between:
NATIONAL
CREDIT
REGULATOR
APPLICANT
AND
AZMI
EDWARDS
RESPONDENT
NCRDC 3298
Coram:
Ms H Alwar - Presiding Tribunal member
Date adjudicated in chambers – 29 March 2022
Date of judgment and order – 29 March 2022
JUDGEMENT AND ORDER
APPLICANT
1. The Applicant is the National Credit Regulator (the Applicant), a juristic person established by section 12 of the National Credit Act, 2005 (the Act) with its physical address at 127 15th Road, Randjiespark, Midrand, Johannesburg, Gauteng.
RESPONDENT
2. The Respondent is Azmi Edwards (referred to as the Respondent), a registered Debt Counsellor with registration number NCRDC 3298, with his business address at 10 Maprin Road, Southfield,Cape Town.
APPLICATION TYPE
3. This is an application in terms of section 138 (1) (b)[1] of the Act for the Tribunal to confirm a settlement agreement as a consent order.
4. The Applicant has submitted a Settlement Agreement that the parties wish to be confirmed as a consent order (the settlement agreement). A reference to a section in this consent order refers to a section in the Act.
BACKGROUND
5. The application arises out of a consumer MC Mabitsela (referred to as the consumer), having complained to the Applicant that the Respondent had failed to reject his debt review application; and failed to terminate the process as requested by the consumer.
6. The settlement agreement records that the Respondent’s failure to reject the debt review application is inconsistent with Section 86(6)(a) and 86(7(a). Consequently, the Respondent had contravened the purposes of the Act as set out in section 3 (g) and (i)[2] and Section 52 (5) (c)[3] read with his conditions of registration.
7. The settlement agreement also records that the consumer suffered damages as a result of the prohibited conduct; and that the Respondent undertakes to carry out his debt counselling duties in accordance with the purpose and requirements of the Act.
8. The Applicant and the Respondent agree that the settlement agreement may be confirmed as a consent order in terms of section 138 (1)(b).
ANALYSIS
9. Section 138 (1) (b) must be read with section 150, which empowers the Tribunal to make an appropriate order in relation to prohibited or required conduct and in subsection (d) includes confirming a “consent agreement” as an order of the Tribunal.
10. The Tribunal is satisfied that the settlement agreement correctly records the Respondent’s failure to reject the debt review application; and that the Respondent has undertaken to perform a range of remedial actions. The Tribunal has considered that the Applicant and the Respondent have agreed that the settlement may be confirmed as a consent order in terms of section 138(1)(b).
CONCLUSION
11. Consequently, the Tribunal is persuaded that it is appropriate to grant the application and confirm the settlement agreement as a consent order.
ORDER
12. Accordingly, the Tribunal makes the following order:
12.1. The Settlement Agreement that the Applicant and the Respondent concluded on 11 February 2022; which is annexed to this consent order as Annexure A to NCR v Azmi Edwards NCT/218082/2022/138(1)(b), is confirmed and made an order of the National Consumer Tribunal in terms of section 138 (1)(b) of the National Credit Act, 2005; and
12.2. There is no order as to costs.
DATED ON THIS 29th DAY OF MARCH 2022 [SIGNED]
MS
H ALWAR PRESIDING MEMBER
[1] Section 138 (1) (b) provides that if a matter has been investigated by the National Credit Regulator, and the National Credit Regulator and the respondent agree to the proposed terms of an appropriate order, then the Tribunal without hearing evidence, may confirm the resolution or agreement as a consent order
[2] Section 3 deals with the purposes of the Act. The purposes of the Act are to promote a fair credit market and industry and to protect consumers
by, amongst other things: (g) preventing over-indebtedness of consumers, and providing mechanisms for resolving over-indebtedness
based on the principle of satisfaction by the consumer of all responsible financial obligations; and (i) providing for a consistent system of debt restructuring, enforcement and judgement, which places priority on the eventual satisfaction of all responsible consumer obligations under credit agreements.
[3] Section 52 (5) (c) requires a registrant to comply with its conditions of registration and the provisions of the Act.
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