Nikiwe v Lewis and Another (NCT/86875/2017/165) [2017] ZANCT 139 (22 December 2017)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case Number: NCT/86875/2017/165

In the matter between:

SPHAMANDLA M.H.

NIKIWE

APPLICANT

And

LORENCO

LEWIS

FIRST

RESPONDENT

AFRICAN

BANK

LIMITED SECOND

RESPONDENT

Coram:

Adv J. Simpson - Presiding member

Mr. A. Potwana - Tribunal Member

Ms H.Devraj - Tribunal Member

Date of hearing 1 December 2017

JUDGEMENT

AND REASONS

APPLICANT

1. The Applicant is Sphamandla M.H.Nikiwe, an adult male consumer (hereinafter referred to as "the Applicant").

2. At the hearing the Applicant represented himself.

RESPONDENTS

3. The First Respondent is Lorence Lewis, a debt counsellor who is duly registered as such with the National Credit Regulator(hereinafter

referred to as “the First Respondent”).

4. The Second Respondent is African Bank Limited a credit provider who is duly registered as such with the National Credit Regulator

(hereinafter referred to as "the Second Respondent")

APPLICATION

TYPE

5. This is an application in terms of Section 165 of the Act to rescind a consent order in respect of a debt re-arrangement agreement which was confirmed by this Tribunal in terms of section 138 of the National Credit Act, 34 of 2005.

BACKGROUND

6. On 13 March 2015 the Tribunal confirmed as a consent order a debt re-arrangement agreement between the Applicant and the Second

Respondent as per case number NCT/20075/2014/138(1).

7. On 17 August 2017 the Applicant lodged an application in terms of Section 165 of the Act to have the consent order varied.

8. In the affidavit filed in support of the application, the Applicant submits that he applied for debt review with Consumerwise operating under Lorenco Lewis (NCDRDC553) because he was over-indebted. He also states that he appreciates the financial relief afforded to him by his debt counsellor. However, he wants to rescind the order because he is paying his creditors through a debit order. During the hearing it also transpired that he may also qualify for some form of housing allowance through his employer but the consent order granted prevents him from getting this benefit.

9. On 29 August 2017 the Registrar issued a notice of incomplete filing. On 08 September 2017 the Registrar issued a notice of complete

filing.

10. On 4 October 2017 the Registrar issued a notice of set down for the matter to be heard on 30 October 2017 at the offices of this Tribunal in Centurion. However, on 6 October 2017; the Applicant filed a request for change of venue. On 24 October 2017 the Registrar issued a "Notice of Set Down-Change of Date" for the matter to be heard on 1 December 2017 in Durban. On 30 October 2017 the Registrar issued the Certification of Set Down.

11. On the date of the hearing there was no appearance by the respondents or their representatives. Therefore, the matter proceeded on a default basis.

CONSIDERATION

OF THE EVIDENCE ON A DEFAULT BASIS

12. In terms of Rule 13 of the Rules of the Tribunal[1], the respondents were entitled to oppose the application by serving an answering affidavit on the Applicant within 15 business days of receiving the application. The respondents, however, did not do so.

13. The Applicant did not file an application for a default order in terms of Rule 25(2) of the Rules of the Tribunal.

14. The Registrar, however, set the matter down for hearing on a default basis due to the pleadings being closed.

15. As stated above; there was no appearance by the respondents or their representatives on the date of the hearing.

16. Rule 24 of the of the Rules of the Tribunal provides that:

"Non appearance

(1) If a party to a matter fails to attend or be represented at any hearing or any proceedings, and that party-

(a) is the applicant, the presiding member may dismiss the matter by issuing a

written ruling; or

(b) is not the applicant, the presiding member may-

(i) continue with the proceedings in the absence of that party; or

(ii) adjourn the hearing to a later date

(2) The Presiding member must be satisfied that the party had been properly notified of the date, time and venue of the proceedings,

before making any decision in terms of subrule (1)

(3) If a matter is dismissed, the Registrar must send a copy of the ruling to the parties."

17. The Presiding Member of the Tribunal was satisfied that the parties were properly notified of the date, time and venue for the

proceedings and the matter proceeded on a default basis.

APPLICABLE

SECTIONS OF THE ACT

18. The application is brought in terms of Section 165 of the Act, which states that:

“The Tribunal, acting of its own accord or on application by a person affected by a decision or order, may vary or rescind its decision or order-

(a) Erroneously sought or granted in the absence of a party affected by it;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

(c) made or granted as a result of a mistake common to all the parties to the proceedings”.

19. The consent order application was granted in terms of Section 138(1) of the Act, which provides that:

"If a matter has been-

(a) resolved through the ombud with jurisdiction, consumer court or alternative dispute resolution agent; or

(b) investigated by the National Credit Regulator, and the National Credit Regulator and the respondent agree to the proposed terms of an appropriate order, the Tribunal or a court, without hearing any evidence, may confirm that resolution or agreement as a consent order."

CONSIDERATION OF SECTION 165 OF THE ACT

20. Hereunder are the three grounds provided for under section 165 for a rescission or variation of an order granted by the Tribunal will be detailed under separate headings.

21. Erroneously sought or granted

The courts have held that in an application for variation or rescission of an order, the Applicant bears the onus of establishing the order was erroneously granted.[2] The court considered the meaning of the words “erroneously granted”. This is dealt with in the Bakoven-case[3] where it was stated:

“An order or judgment is 'erroneously granted' when the Court commits an 'error' in the sense of 'a mistake in a matter of law appearing on the proceedings of a Court of record' (The Shorter Oxford Dictionary). It follows that a Court in deciding whether a judgment was 'erroneously granted' is, like a Court of Appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the common law, the applicant need not show 'good cause' in the sense of an explanation for his default and a bona fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala and Another v Pierre 1979 (4) SA 27 (T) at 30C-D). Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission.”

Accordingly the words "erroneously granted" mean that the Tribunal must have committed an error or mistake in law. In the matter of First National Bank of SA Bpk v Jurgens and Another,[4] the learned Judge Leveson stated:

"That leaves me only with the task of considering para (a) of the same sub-rule which makes provision for rescission or variation of an order or judgment erroneously sought or erroneously granted. I look first at the remedy available before the rule came into force. Ordinarily a court only had power to amend or vary its judgment if the court had been approached to rectify the judgment before the Court had risen. That relief was available at common law and with the only relief that could be obtained until the provisions of rule 42 were enacted. The proposition at common law is simply that once a court has risen it has no power to vary the judgment for it is functus officio. Firestone South Africa (Pfy) Ltd v Genticuro AG, 1977(4) SA 298 (A). A principal judgment could be supplemented if an accessory had been inadvertently omitted, provided that the court was approached within a reasonable time. Here the judgment was granted two years ago and a reasonable time has expired. The question then is whether the limited relief at common law has been extended by this provision. In the first place I must express considerable doubt that power exists in the Rules Board to amend the common law by the creation of a Rule. Leaving aside that proposition, however, the question that arises is whether the present case is one of a judgment 'erroneously sought or granted', those being the words used

in Rule 42(1)(a). The ordinary meaning of 'erroneous' is 'mistaken' or 'incorrect'. I do not consider that the judgment was 'mistakenly sought' or 'incorrectly sought'. The relief accorded to the plaintiff was precisely the relief that its counsel requested. The complaint now is that there is an omission of an accessory feature from the judgment. I am unable to perceive how an omission can be categorised as something erroneously sought or erroneously granted. I consider that the rule only has operation where the applicant has sought an order different from that to which it was entitled under its cause of action as pleaded. Failure to mention a form of relief which would otherwise be included in the relief granted is not in my opinion such an error."

22. Ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission

This ground for variation is clearly applicable in instances where an order granted by the Tribunal is vague or uncertain, or an obvious error occurred in the granting thereof. The applicable provision is unambiguous in stating that the order will only be varied to the extent of such an ambiguity, error or omission.

23. Mistakes common to all the parties to the proceedings.

The applicable provision relates to an error which occurred in the granting of the order and requires that the error be common to all the parties.

CONSIDERATION

OF THE EVIDENCE

24. It is clear from the evidence presented that the reason the Applicant wants the consent order rescinded is because he is paying his creditors through a debit order. It further appears that the consent order granted is preventing the Applicant from being considered for a housing allowance of some kind. These grounds do not constitute any basis for a rescission of an order in terms of section 165 of the Act. At no stage does he allege that there was an error, ambiguity or omission in the granting of the consent order. Further, there is no evidence of any mistake being made in granting the consent order.

25. Consequently, there is no basis for the rescission of the consent order.

ORDER

26. Accordingly, the Tribunal makes the following order:-

26.1 The application is refused.

26.2 There is no order as to costs.

Thus done and signed at Centurion on 22 December 2017.

{signed}

Mr. A. Potwana

Tribunal Member

Adv. J. Simpson (Presiding Member) and Ms. H. Devraj (Tribunal Member) concurring.

[1] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, 2007 (Government Gazette No. 30225.) As amended.

[2] Bakoven Ltd v GJHowes (Pty) Ltd 1990(2) SA 446 at page 469 B

[3] Bakoven Ltdv G J Howes (Pty) Ltd 1990(2) SA.

[4] 1993(1)SA 245 at page 246 to 247.