National Credit Regulator v Pham Pham Money Lenders (Pty) Ltd Registration Number 2017/068656/07 (NCT/183525/2021/57(1)) [2021] ZANCT 28 (22 September 2021)

IN THE NATIONAL

CONSUMER TRIBUNAL

HELD

AT CENTURION

Case number: NCT/183525/2021/57(1)

In the matter between:

NATIONAL

CREDIT

REGULATOR APPLICANT

AND

PHAM PHAM MONEY LENDERS (PTY) LTD

RESPONDENT

Registration Number 2017/068656/07

(NCR Registration Number NCRCP 10112)

Coram:

Dr MC Peenze – Presiding Tribunal Member

Prof T Woker – Tribunal Member

Prof K Moodaliyar – Tribunal Member

Date of hearing – 21 September 2021

Date of judgment – 22 September 2021

The hearing was held via the online platform Microsoft teams.

JUDGMENT

AND REASONS

APPLICANT

1. The Applicant is the National Credit Regulator (“the Applicant,”) a juristic person established in terms of Section 12 of the National Credit Act, 2005 (“the Act”) to regulate the consumer credit market and ensure compliance with the Act, with its principal business address at 127 - 15th Road, Randjespark, Johannesburg, Gauteng.

2. Mr Roy Stocker, a Senior Legal Advisor of the Applicant, represented the Applicant at the hearing.

RESPONDENT

3. The Respondent is Cash Pham Pham Money Lenders (Pty) Ltd Loans (“the Respondent”) duly registered and incorporated in terms of the company laws of the Republic of South Africa; with registration number 2017/068656/07; and registered as a credit provider with registration number NCRCP10112, with its registered address situated at Stand 104, Block GG, Soshanguve, Gauteng, 0152.

4. The Respondent was not represented at the hearing, nor did it appear at the hearing.

TYPE

OF APPLICATION AND JURISDICTION

5. This is an application in terms of Section 57(1) of the Act for the cancellation of the Respondent’s registration as a credit provider, for an order declaring that the Respondent engaged in prohibited conduct; and for the imposition of an administrative fine. In terms of Section 27 of the NCA, the National Consumer Tribunal (“the Tribunal”) has jurisdiction to hear this application.[1]

6. Section 150 of the Act empowers the Tribunal to make orders concerning a registrant who contravenes the Act or fails to comply with a condition of its registration as a credit provider. More specifically, Section 150 gives the Tribunal the power to make an appropriate order concerning prohibited or required conduct in terms of the Act or the Consumer Protection Act, 2008. This power includes declaring conduct to be prohibited in terms of the Act and imposing an administrative fine in terms of Section 151 with or without making an additional order in terms of Section 150 of the Act.

7. A section in this judgment refers to a section in the Act.

ISSUES

TO BE DECIDED

8. The Tribunal is required to determine whether the Respondent engaged in prohibited conduct by having repeatedly contravened the provisions of the Act and Regulations, whether to cancel the Respondent's registration as a credit provider, and whether to impose an administrative fine on the Respondent.

9. The allegations of prohibited conduct will become apparent in the course of this judgment.

HEARING

ON A DEFAULT BASIS

10. Rule 25(3) of the Rules of the Tribunal states –

“The Tribunal may make a default order—

(a) after it has considered or heard any necessary evidence; and

(b) if it is satisfied that the application documents were adequately served.”

11. Rule 30(1)(b) of the Rules of the Tribunal states-

“A document may be served on a party by sending it by registered mail to the party’s last known address.”

12. The Applicant served the application on the Respondent via email on 30 March 2021, with the Respondents’ permission.

13. On 27 May 2021, the Registrar of the Tribunal issued a notice of set down for a hearing on 21 September 2021.

14. Notwithstanding service of the application documents on the Respondent as contemplated under rule 30 of the Tribunal Rules, the Respondent did not file any answering affidavit as provided for under rules 13(1) and (2) of the Tribunal Rules.

15. On the day of the hearing, the Tribunal panel was satisfied that the Respondent's application documents and the Notice of Set Down were properly served. The hearing of the application proceeded on a default basis.

BACKGROUND

16. During December 2019, the Applicant received information relating to the Respondent's conduct, indicating that the Respondent may have committed prohibited conduct (“the tip-off”). The tip-off came from a person who wished to remain anonymous. The tip-off contained information which gave rise to a reasonable suspicion that the Respondent had contravened the Act and Regulations by failing to provide consumers with pre-agreement statements and quotations prior to concluding credit agreements, failing to timeously provide written credit agreements to consumers, as well as charging cost of credit which are prohibited or costs of credit which exceeded the prescribed maximum amount allowed under the Act.

17. As a result, the Applicant initiated a complaint in its own name in terms of Section 136(2). On 24 November 2021; the Applicant appointed Thinandavha Phalanndwa as an inspector in terms of Section 25 of the Act to investigate the complaint against the Respondent.

18. On or about 25 November 2020; Phalanndwa submitted a formal letter to the Respondent informing the Respondent of the Applicant’s investigation into the business activities of the Respondent. Phalanndwa requested an interview with the Respondent for the Applicant to obtain necessary information for assessment purposes. Phalanndwa attached a copy of an acknowledgement of rights form to the letter in terms of Section 139(4) of the Act for the Respondent’s perusal and signature.

19. In accordance with Covid-19 Regulations, the investigation was conducted remotely with the Respondent. On 26 November 2020, Phalanndwa conducted a meeting remotely via Microsoft Teams with representatives of the Respondent, specifically, Sesinyana Leotlela (manager), Alice (owner) and Precious (branch consultant). During the interview, Phalanndwa explained the purpose and reasons for the investigation to the Respondent. The Respondent provided Phalanndwa with a summary of the Respondent’s credit-granting policy, the cost of credit charged; and the process applied by the Respondent when conducting affordability assessments.

20. In accordance with the scope of the investigation, the appointed inspector was required to request a sample of ten (10) credit agreement files, containing the credit agreements entered into with consumers to assess the business practices of the Respondent; and to determine whether or not the Respondent was in contravention of the Act. On 2 December 2020, the Respondent provided ten (10) randomly selected consumer files to Phalanndwa, amounting to thirteen credit agreements, as a few of the ten consumers had concluded more than one credit agreement with the Respondent.

21. Phalanndwa identified contraventions of the Act from his review of the ten (10) consumer files. The inspector concluded that the Respondent repeatedly contravened provisions of the Act and thereby committed conduct prohibited in terms of the Act. Following the investigation and subsequent assessment of the credit agreements provided, Phalanndwa did a desktop evaluation of the files and compiled an investigation report; (“the Investigation Report”[2]) dated 17 March 2021.

22. The investigation report detailed the alleged contraventions.

APPLICANT’S

FOUNDING AFFIDAVIT

23. On 31 March 2021, the Applicant filed an application to cancel the Respondent’s registration with the Applicant in terms of Section 57(1) of the National Credit Act 34 of 2005 (“the NCA”) with the Registrar of the Tribunal (“the Registrar”). The Applicant’s Anne-Carien du Plooy, employed as the acting manageress of the Applicant’s Investigations and Enforcement Department, submitted an affidavit that the Respondent repeatedly failed to conduct its business in a manner that is consistent with the purpose and requirements of the Act and Regulations. She asserts that the Respondent repeatedly contravened the provisions of the Act as is fully set out in the investigation report.

Failure to conduct affordability assessments and reckless credit granting

The Act

24. Section 81 deals with the prevention of reckless credit. Section 81(2)(a)(ii) and (iii) read together with Regulation 23A(12)(b) and 23A(13) of the National Credit Regulations, 2006, provide that a credit provider may not enter into a credit agreement without first taking reasonable steps to assess the proposed consumer’s debt repayment history as a consumer under credit agreements; and the proposed consumer’s existing financial means, prospects, and obligations. Regulation 23A sets out the criteria to conduct an affordability assessment. The Tribunal is aware of Regulation 23A(4), set aside by the High Court in March 2018.

25. Section 80 deals with reckless credit. Section 80(1)(a) provides that a credit agreement is deemed to be reckless if, at the time when the credit agreement is concluded, the credit provider failed to conduct an assessment in accordance with Section 81(2), irrespective of what the outcome of the assessment might have been at the time. Section 81(3) specifically prohibits a credit provider from entering into a reckless credit agreement with a prospective consumer.

Alleged contraventions

26. The Applicant alleges that the Respondent contravened Section 81(2)(a)(ii) of the Act in that the Respondent did not take into account a consumers’ debt re-payment history as a consumer under a credit agreement. This submission is supported by the fact that credit bureau statements could be located in all the sampled files that formed part of the investigation report. The Respondent accordingly contravened Section 81(2)(a)(ii) read with Regulation 23A(12)(b) and 23A(13) of the Act.

27. The Applicant alleges that the Respondent entered into credit agreements with consumers without first taking reasonable steps to assess the consumers existing financial means, prospects and obligations. Although the Respondent undertook to obtain consumers bank statements and / or payslips prior to extending credit, there is no evidence that the Respondent interrogated the information. The information the Applicant alleges was therefore only obtained as a tick box exercise. Despite being in possession of consumers’ bank statements the Respondent failed to consider monthly debit orders and any other deductions listed on the bank statements. This is evident in all the consumer files sampled. Where credit bureau reports were included in a sampled file, the debt status as reflected in the credit bureau reports were not properly considered in the affordability assessment.

28. Accordingly, the Applicant submits that the Respondent contravened Section 81(2)(a)(ii) and (iii) read with Regulation 23A of the Act. By the Respondent’s failure to take reasonable steps as required in terms of Section 81(2) of the Act, the Respondent extended credit recklessly and or entered into reckless credit agreements with consumers in contravention of Section 81(3) read with Section 80(1)(a) of the Act. In support of these allegations, the Applicant referred the Tribunal to annexures “E1 to E10” to the investigation report attached to the Applicant’s founding affidavit.

Analysis

29. The Tribunal is satisfied with the evidence presented by the Applicant that each consumer file did not contain a credit bureau report. Where a credit report was obtained, the information was not assessed in terms of the requirements of the Act. The Tribunal is therefore satisfied with the evidence of the Applicant that the Respondent has contravened Section 81(2)(a)(ii) of the Act.

30. The Tribunal, therefore, finds that the Respondent has contravened Section 80(1)(b)(ii); 81(2); and Section 81(3) of the Act in that it failed to obtain credit bureau reports to assess the consumer’s debt repayment history before entering into credit agreements with consumers; and that the Respondent engaged in reckless credit granting.

31. The Tribunal finds that the Respondent failed to demonstrate that it adhered to Section 81(2)(a)(iii) to conduct affordability assessments as required by the Act. The Tribunal is therefore satisfied that the Respondent contravened Section 81(2)(a)(ii) and (iii) read together with Regulation 23A, and Section 81(3) read with Section 80(1)(b)(2) of the Act.

Charging costs of credit in excess of the prescribed fees and interest

32. Section 101(1) of the Act prescribes the cost of credit that a credit provider may charge for a credit agreement. Section 100(1)(b) of the Act prohibits a credit provider from charging an amount or imposing monetary liability on the consumer in an amount or fee or charge exceeding the amount that may be charged consistent with the Act.

33. Section 101(1)(d)(ii) of the Act stipulates that interest charged must not exceed the maximum prescribed rate determined in terms of Section 105 of the Act. Regulation 42(1), table A of the Act stipulates the maximum prescribed interest rate per month on short-term transactions as 5% interest per month on the first loan; and 3% interest per month on subsequent loans within a calendar year.

The contravention

34. The Applicant alleges that the Respondent concluded both short term and unsecured credit transactions. The Respondent charged consumers a sum which is said to be for an “admin fee and interest.” The formula and/or the determination of the said sum or costs are not disclosed and therefore not known to the Applicant. The Respondent failed to provide a proper breakdown of the cost of credit and or failed to specify the rand amount of interest charged to consumers. The Respondent’s failure is in contravention of Regulation 23A(15) of the Act.

35. In five of the credit agreements sampled, the Respondent charged excessive interest, as follows: -

a. E1 – consumer Rauinga, credit agreement dated 7 September 2020 – the Respondent quoted the maximum allowed rate of 3% per month. However, if one calculates the effective interest rate based on the amounts that the consumer was required to pay in terms of the credit agreement, it is clear that the Respondent charged interest at a rate of 4, 78% per month;

b. E2 – consumer Mothoa, credit agreement dated 15 February 2020 – the Respondent quoted the maximum allowable rate of 3% per month. However, calculating the effective interest rate, the Respondent charged interest at a rate of 4,13% per month;

c. E4 – consumer Kopedi, credit agreement dated 20 March 2020 – the Respondent quoted the maximum allowable rate of 3% per month. However, calculating the effective interest rate, the Respondent charged interest at a rate of 3,(% per month;

d. E8 – consumer Makhuvha, credit agreement dated 3 June 2020 – the Respondent quoted the maximum allowable rate of 3% per month. However, calculating the effective interest rate, the Respondent charged interest at a rate of 4,2 % per month;

e. E9 – consumer Aphan, credit agreement dated 25 August 2020 – the Respondent quoted the maximum allowable rate of 3% per month. However, calculating the effective interest rate, the Respondent charged interest at a rate of 437% per month.

36. The Applicant submitted that the Respondent accordingly repeatedly contravened Section 100(1)(c) and Section 101(1)(d)(ii) read with Regulation 42(1).

37. The Applicant further submitted that the Respondent directly or indirectly requires or induces consumers to enter into an agreement with NUPAY, at the same time as entering into the credit agreements with the Respondent. This NUPAY agreement contains an unlawful transaction processing fee that is levied together with the services fees and other credit costs.

38. The aforesaid is evidenced in the majority of the credit agreements sampled (Annexure E2, E2, E3, E4 [in respect of two of the three agreements], E5, E6, E8 and E9 [in respect of two of the three agreements sampled] to the Investigation Report). The NUPAY agreement is an integral part of the credit agreements the consumers conclude with the Respondent because this agreement authorises NUPAY to process the recovery of funds due to the Respondent under the credit agreement and simultaneously levies a fee due to NUPAY for processing that transaction. This NUPAY fee is collected over and above the services fees paid by a consumer (which service fee is specified in the credit agreement).

39. In terms of Regulation 44(3), the monthly service fee charged in terms of the credit agreement is intended to cover the cost of administering a credit agreement which is the operational cost of the Respondent, such as processing of repayments and any other costs related to the administration of a credit agreement. Thus, the services rendered by NUPAY and the costs thereof are included and must be covered under the service fee chargeable in terms of Section 101(1)(c).

40. The Tribunal finds on the evidence before it that the Respondent indeed overcharged on the cost of credit. The Respondent also overcharged on the cost of credit by charging interest as submitted by the Applicant more than that permitted in the Act. The Tribunal further finds that the NUPAY agreements form part of the credit agreements which the Respondent concluded with the consumers.

41. Accordingly, the Tribunal finds that the Respondent contravened Section 100(1)(c) and Section 101(1)(d)(ii) read together with Regulation 42(1); and repeatedly contravened Section 100(1)(b) read with Section 101(1) of the Act, read together with Regulation 44.

Failure to furnish consumers with pre-agreement statements and quotations

42. Section 92(1) states that a credit provider must not enter into a small credit agreement unless the credit provider has given the consumer a pre-agreement statement and quotation in the prescribed form. Regarding Regulation 28(1)(b) of the Act, the pre-agreement statement and quotation must be in the format set out in Form 20.

43. The Applicant submitted that the Respondent contravened Section 92(1) of the Act read with the Regulations in all of the sampled files that form part of the investigation report, in that the Respondent failed to furnish consumers with pre-agreement statements and quotations prior to extending and / or granting credit and / or entering into credit agreements.

44. Based on the submissions of the Applicant, the Tribunal is satisfied and finds that the Respondent contravened Section 92(1) read with read with Regulations 28(1)(b) and Form 20 of the Act.

CONCLUSION

45. The Tribunal is satisfied that the Applicant has presented sufficient evidence to declare that the Respondent repeatedly contravened various provisions of the Act read with the Regulations. Consequently, the Tribunal is satisfied that the Respondent engaged in prohibited conduct by contravening the Sections of the Act referred to in the preceding paragraphs.

46. The Tribunal proceeds to consider the appropriate relief.

CONSIDERATION

OF THE APPROPRIATE RELIEF

47. The Applicant prays that the Tribunal makes an order in the following terms:

1 Declaring that the Respondent has repeatedly contravened the following Sections of the Act and Regulations:

Section 52(5)(c) read with General Condition A3 of the Respondent’s conditions of registration; Section 92(1) read with Regulation 28(1)(b) and Form 20; Section 81(2)(a)(ii) and (iii) read with Regulation 23A; Section 81(3) read with Section 80(1)(a) and 80(1)(b)(ii); Section 100(1)(c) and Section 101(1)(d)(ii), read together with Regulation 42(1); and Section 100(1)(b) and Section 101(1)(c)(iii), read with Regulation 44;

2 Declaring the repeated contraventions referred to above to be prohibited conduct in terms of Section 150(a) of the Act;

3 Cancelling the Respondent’s registration as a credit provider in terms of Section 57 of the Act;

4 Declaring that the Respondent has brought the consumer credit industry into disrepute further and/or alternatively, declaring that the Respondent has acted with disregard for consumer rights generally;

5 Interdicting and restraining the Respondent from in future engaging in prohibited conduct;

6 Imposing an administrative fine upon the Respondent, in the amount of R1 million or 10% of the Respondent’s turnover, whichever is the greater; and

7 Declaring the credit agreements with consumers forming part of the investigation report as reckless in terms of Section 80(1)(a) of the Act and:-

a) Setting aside all of the consumers’ obligations under those agreements; and

b) Ordering the Respondent to, at its own costs:-

i. Refund all the costs of credit charged and recovered from consumers under all such agreements;

ii. Refrain from taking any enforcement action against such consumers and, to the extent that the Respondent may already have taken enforcement action which is pending against any such consumers, the Respondent shall formally withdraw such action, and tender payment of the consumers’ legal cost where the action is defended or opposed; and

iii. Take all steps as may be necessary in order to ensure that:

1. Any adverse credit bureau records which may have arisen as a result of the consumer having concluded such credit agreements with the Respondent are removed; and

2. Any civil judgments taken by the Respondent against such consumers in respect of such agreements are rescinded, or, if rescission is not possible, abandoned.

48. The Applicant acceded not to continue with his prayers outlined in paragraph 47 (4) above during the hearing.

49. The Tribunal proceeds to consider the relief requested.

The Administrative fine

50. The Applicant requested that the Tribunal imposes an administrative fine on the Respondent. The Tribunal is satisfied that the nature of the Respondent’s contraventions, and the consequent financial implications for consumers, justify the Tribunal imposing an administrative fine on the Respondent. The Act was introduced to protect consumers from the type of conduct perpetrated by the Respondent. The Tribunal, therefore, wishes to send a clear message to the Respondent and all other credit providers that the Tribunal takes the conduct of credit providers who contravene the Act seriously.

51. Therefore, the Tribunal would be failing in its duty were it not to send a clear message to the Respondent and other credit providers that the Tribunal will not tolerate credit providers contravening the Act.

52. Section 151(3) sets out the factors the Tribunal must consider when determining an appropriate administrative fine. The Tribunal proceeds to consider each in turn.

The nature, duration, gravity, and extent of the contravention

53. The inspection report reveals that the Respondent’s approach when granting credit appears to be an ongoing and common practice. The Respondent was registered as a credit provider since 15 December 2017. The contraventions amount to, inter alia, failure to conduct proper affordability assessments; the granting of reckless credit; and charging costs of credit in excess of the amount prescribed in the Act.

54. The Respondent’s contraventions are serious.

55. The Respondent’s failure to adhere to the provisions of the Act indicates a disregard for the rights of consumers and, ultimately, the industry in which the Respondent operates.

Loss or damage suffered as a result of the contraventions

56. The Tribunal can reasonably conclude that consumers have suffered a loss in that they have been exploited by entering into credit agreements without affordability assessments being conducted properly. The damage to a consumers’ economic status is far-reaching when reckless credit is extended to a consumer. Consumers’ have also suffered direct financial losses due to the Respondent’s conduct of overcharging on the cost of credit.

57. It is aggravating that a loan was extended recklessly to a consumer when the Respondent fails to provide the consumer with a pre-agreement statement and quotation. Consumers are not made fully aware of their rights and obligations, and the credit agreement lacks transparency as envisaged by Section 3 of the Act.

The Respondent’s behaviour

58. The Applicant submitted that the Respondent had been a registered credit provider since 2017. Therefore, there is no plausible reason for the Respondent to be unaware of the provisions of the Act and the statutory obligation imposed upon the Respondent in terms of the Act.

Market circumstances under which the contraventions occurred

59. The failure to conduct proper affordability assessments, reckless credit granting, the charging of excessive interest; is a clear indication that consumers are unaware of such practices being unlawful and contrary to legislative requirements. Consumers are therefore exploited to the unjust benefit of the Respondent. The market circumstances are such that consumers are trapped in a cycle of ongoing credit and re-payment and find themselves in a situation of being reliant on the services provided by the Respondent.

The level of profit derived from the contraventions

60. As a result of the nature of the contraventions found against the Respondent, more specifically the over-charging of interest and the reckless granting of credit, it is obvious that a level of profit was derived from the activities undertaken by the Respondent. The recent Annual Financial Statements of the Respondent were not available at the time of the hearing of the matter. The Applicant submitted that the absence of the annual financial statements of the Respondent should not deter the Tribunal from imposing the maximum fine on the Respondent.

The degree to which the Respondent co-operated with the Applicant

61. The Tribunal considered that the Respondent provided the inspectors with the consumer files and co-operated with the Applicant’s inspectors during the investigation.

The Respondent’s prior contraventions

62. The Tribunal also considered that the Respondent has not previously been the subject of an investigation; have no prior contraventions; nor have any findings been made against the Respondent. However, the conduct of the Respondent has been ongoing for a lengthy period of time and should be taken into account by the Tribunal.

The amount of the fine

63. The Applicant did not produce current evidence concerning the Respondent’s financial turnover during the previous financial year. The principle of the judgment given in NCR v Werlan Cash Loans[3] must, in these circumstances, be taken into consideration. The Tribunal should not be deterred from making an administrative fine where the most recent Annual Financial Statements are not available as it would simply have the effect of registrants hiding their financial position to avoid an administrative fine

64. The preamble to the Act states that the Act was specifically introduced to, amongst other things, promote a fair and non-discriminatory marketplace for access to consumer credit; prohibit certain unfair credit and credit marketing practices; promote responsible credit granting and use, and prohibit reckless credit granting. It follows that protecting vulnerable consumers and ensuring that credit providers act fairly runs to the heart of the Act.

65. The Respondent has raised no defence to the allegations made against it by the Applicant. The Respondent did not attend the hearing to put its version before the Tribunal.

66. The Tribunal is persuaded that a strong message must be sent to all credit providers that they cannot escape compliance with the Act. The Tribunal is further persuaded that cancellation of the Respondent’s registration as a credit provider is appropriate in the circumstances. In The Competition Commission of South Africa v Federal-Mogul Aftermarket Southern Africa (Pty) Ltd & Others (Federal-Mogul case,)[4] the Competition Tribunal held that deterrence is the primary purpose of imposing administrative penalties.

67. These considerations persuade the Tribunal that it is appropriate to impose an administrative fine of R100,000.00 (one hundred thousand Rand) on the Respondent.

ORDER

68. Accordingly, the Tribunal makes the following order:

68.1 The Respondent has repeatedly contravened the following provisions of the Act and its Regulations:

a. Section 92(1) read with Regulation 28(1)(b) and Form 20;

b. Section 81(2)(a)(ii) and (iii) read with Regulation 23A;

c. Section 81(3) read with Section 80(1)(a) and 80(1)(b)(ii);

d. Section 100(1)(c) and Section 101(1)(d)(ii), read together with Regulation 42(1);

e. Section 100(1)(b) and Section 101(1)(c)(iii), read with Regulation 44; and

f. Section 52(5)(c) read with General Condition A3 of the Respondent’s conditions of registration;

68.2 The Respondent’s repeated contraventions referred to in paragraph 68.1 above is prohibited conduct in terms of Section 150(a) of the Act;

68.3 The Respondent is interdicted from future breaches of the NCA and interdicted from further extending credit;

68.4 The Respondent’s registration as a credit provider is cancelled with immediate effect;

68.5 The Respondent’s credit agreements concluded with consumers contained in Annexures E1 to E10 of the investigation report are declared reckless in Section 80(1)(a) of the Act;

68.6 The Respondent must refund all past and present consumers any amounts which it received in the form of fees, which it was not entitled to receive, or which exceeded the prescribed maximum amounts allowed by the Act;

68.7 The Respondent must pay an administrative fine of R100,000.00 (one hundred thousand Rand) into the National Revenue Fund referred to in Section 213 of the Constitution of the Republic of South Africa, 1996 within 30 days of the date of this judgment. The Banking Details of the National Revenue Fund are as follows:

Bank Name : The Standard Bank of South Africa Limited

Account Holder : Department of Trade and Industry

Branch Name : Sunnyside

Branch Code

: 05100

Account Number : 370 650 026

Reference : NCT/183525/2021/57(1) and Name of Person or Business making payment.

68.8 The Respondent is ordered to appoint an independent auditor at its own costs within 30 days of the issuing of this order to:

68.8.1 Identify all loans entered into since the date of commencing its business to date of the judgment, which loans were extended without proper affordability assessments having been done. Where the credit agreements are still in force, i.e. where all amounts owing thereunder have not been paid, those agreements are to be referred to the Applicant, where after the Applicant may apply to the Tribunal for an order declaring such agreements as reckless in terms of Section 80(1)(a) of the Act and setting aside all of the consumer’s obligations under those agreements;

68.8.2 Identify and compile a list of all consumers since the date of commencing its business to date of judgment who were overcharged on interest and charged fees not provided for in terms of the Act.

68.9 Once the aforesaid auditor has compiled the aforementioned list, the Respondent is ordered to:

68.9.1 refund the overcharged and prohibited charged amounts to each consumer within 30 days from the date of the auditor’s report; and

68.9.2 once the refunds have been made, the Respondent must provide a written report to the Applicant detailing the identity of the consumers and the refunds made. This report must be provided to the Applicant within 120 days of the issuing of this order;

68.10 The Respondent must at its own cost:

68.10.1 take reasonable steps to effect the rescission of all judgments obtained against consumers by the Respondent on its credit agreements entered into without conducting proper affordability assessments; and

68.10.2 clear any adverse listing of such judgments obtained with all credit bureaus.

68.11 There is no order as to costs.

DATED AT CENTURION ON THIS 22nd DAY OF SEPTEMBER 2021.

DR

MC PEENZE

PRESIDING

MEMBER

With Tribunal Members Prof. K Moodaliyar and Prof T Woker concurring.

[1] Section 27(a)(i) of the NCA provides that: ‘The Tribunal or a member of the Tribunal acting alone in accordance with this Act or the Consumer Protection Act, 2008 may adjudicate in relation to any application that may be made to it in terms of this Act in respect of such an application.’

[2] Investigation Report Pg. 69-93 of the bundle.

[3] NCT/3867/2012/57(1)[2013]ZANCT 5

[4] Competition Tribunal Case number: Case Number: 08/CR/Mar01.