National Credit Regulator v Kagiso Finansiele Dienste CC (NCT/38604/2016/140(1)) [2016] ZANCT 26 (1 August 2016)

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/38604/2016/140(1)

In the matter between:

NATIONAL CREDIT REGULATOR

- APPLICANT

and

KAGISO FINANSIELE DIENSTE cc

- RESPONDENT

Coram:

Ms P. Beck – Presiding Member

Mr F Sibanda – Tribunal Member

Prof B Dumisa – Tribunal Member

Date of Hearing: 21 July 2016

JUDGMENT AND REASONS

(and A SETTLEMENT AGREEMENT between the Parties)

THE APPLICANT

1. The Applicant in this matter is the National Credit Regulator (“the NCR” or “the Applicant”), a juristic person established in terms of Section 12 of the National Credit Act, 2005 (“the Act”).

2. The Applicant’s Founding Affidavit, dated the 25th of January 2016, is deposed to by Jacqueline Boucher (“Boucher”), in her capacity as the Manager of Investigations and Enforcement unit of the Applicant.

THE RESPONDENT

3. The Respondent is Kagiso Finansiele Dienste cc, a close corporation registered in the Republic of South Africa with company registration number 2003/106800/23, and is also a registered

credit provider with the NCR with registration number NCRCP204[1] “the Respondent.”

4. The Respondent has its place of business at 95 Nelson Mandela Street, Bloemfontein, in the Free State Province.

5. The Respondent‘s answering affidavit dated 18 March 2016; was deposed by Mr. Marius Botha, who is the Manager for the Respondent.

THE ISSUE TO BE DECIDED

6. This is an application in terms of Section 140(1) of the Act. This complaint is contained in a referral contained in National Credit

Regulations Form 32, (page 3-6 of case file); signed by Jacqueline Boucher, a Manager: Investigations and Enforcement of the Applicant, on 29 January 2016.

7. According to referral to the Tribunal by Boucher dated 29 January 2016.; the issues to be decided in this case, is, therefore:

7.1 Whether the Respondent contravened section 80(1)(b)(i) of the NCA

7.2 Whether the Respondent contravened section 81(2)(a)(ii) of the NCA;

7.3 Whether the Respondent contravened section 81(2)(a)(iii) of the NCA;

7.4 Whether the Respondent contravened section 81(3) of the NCA;

7.5 Whether the Respondent contravened section 91(a) of the NCA;

7.6 Whether the Respondent contravened section 100(1)(c) of the NCA;

7.7 Whether the Respondent contravened section 101(1)( c) of the NCA

7.8 Whether the Respondent contravened section 102(1) of the NCA

7.9 Whether the Respondent contravened section 170 of the NCA;

7.10 Whether the Respondent contravened Regulation 44 of the NCA; and

7.11 Whether the Respondent contravened Regulation 55(1)(b)(vi) of the NCA.

PRAYERS OF THE APPLICANT

8. In the event that the Tribunal finds against the Respondent, the Applicant has also prayed for:

8.1 The Tribunal to then declare that the Respondent has repeatedly contravened the Act as catalogued above, which amounts to prohibited conduct in terms of section 150(a) of the Act.

8.2 An order interdicting the Respondent from committing future breaches of the Act.

8.3 An order imposing an administrative fine against the Respondent in the sum of R1 000 000, 00 (one million South African Rand).

8.4 Any further / alternative relief that the Tribunal may consider appropriate to give effect to the consumer’s rights in terms of the Act in line with section 150(i) of the Act.

JURISDICTION OF THE TRIBUNAL

9. This Tribunal has the requisite jurisdiction to deal with this matter. Section 27 of the Act confers the Tribunal or a member of the Tribunal acting alone in accordance with this Act the jurisdiction and discretion to:

(a) adjudicate in relation to any-

(i) application that may be made to it in terms of this Act, and make any order provided for in this Act in respect of such an application; or

(ii) allegations of prohibited conduct by determining whether prohibited conduct[2] has occurred and, if so, by imposing a remedy provided for in this Act;

(b) grant an order of costs in terms of section 147; and

(c) Exercise any other power conferred on it by law.”

BACKGROUND

10. On 26 February 2015, the Applicant initiated the complaint against the Respondent in terms of section 136(2) of the NCA.[3]This initiation was signed (approved) by the Chief Executive Officer on the same day the 26th February 2015.

11. From the founding Affidavit deposed by Boucher, the Applicant avers that the Applicant initiated a complaint as part of an investigation into the compliance of credit providers in the Bloemfontein area. The investigation, by Godfrey Tladi, revealed that the Respondent had contravened the Act by committing conduct prohibited by the Act.

12. The parties subsequently exchanged pleadings in the form of an answering affidavit from the Respondent and a reply from the Applicant. In its answering affidavit, the Respondent simply raised general denials of most allegations, while noting “It is evident from the conflicting allegations contained in the affidavit and investigation report that this case can only be resolved by giving oral testimony before the Tribunal”.

12.1 In its answering affidavit, the Respondent simply raised general denials to most allegations; and even accused the Applicant of improperly getting the search warrant from a Magistrate under false pretences.

12.2 On its side, the Applicant’s Replying Affidavit simply restated most of the things already dealt with in the Founding Affidavit. But, it also raised some points in limine on whether the Respondent’s filing of its papers was in compliance with the Tribunal Rules.

THE LAW ON THE MATTER

13. Save for the few legal technicalities raised by the parties in their exchange of papers, the matter was ripe for a hearing on the 21st of July 2016.

14. Three Tribunal Members were ready to hear this matter, and had already applied their minds to all the relevant legislation applicable to it, including the appropriateness or otherwise of some of the Applicant’s prayers and some of the Respondent’s written submissions.

SETTLEMENT AGREEMENT

15. At the hearing of the 21st July 2016, the parties presented the Tribunal with a settlement agreement concluded out of court. The Tribunal examined the contents

in chambers and concluded that the agreement met the requirements of bringing the content under the jurisdiction of the Tribunal. The parties had also agreed to apply to make the settlement agreement an order of the Tribunal, with leave of the Tribunal. This therefore, curtailed the matter from having to examine evidence and make a judgment on that basis.

ORDER

16. In the light of the abovementioned agreement and the conclusion by the Tribunal that the agreement meets the standard to locate its content within the jurisdiction of the Tribunal, it is hereby ordered that the settlement agreement between the parties dated 21 July 2016 (attached hereto and manually labelled “Annexure A”), is made an order of the Tribunal.

17. There is no order as to costs and none has been requested.

Thus done and handed down at Centurion this 21st Day of July 2016

Prof B. Dumisa

TRIBUNAL MEMBER & Deputy Chairperson

With Ms. P. Beck (Presiding Member) and Mr F Sibanda (Member) concurring

[1] Since 20 June 2007

[2] Section 1 of the Act defines prohibited conduct as “an act or omission in contravention of this Act, other than an act or omission that constitutes an offence under this Act by a credit provider.

[3] Page 7 of case file