Pettenburger-Perwald and Another v Experato (Pty) Ltd and Others (NCT/10122/2013/148(1)P) [2013] ZANCT 54 (11 December 2013)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NATIONAL

CONSUMER TRIBUNAL

HELD IN

CENTURION

Case Number: NCT/10122/2013/148(1)P

In the matter between:

HANS REINHARD PETTENBURGER-PERWALD (Debt Counsellor) 1st

APPELLANT

ANNELIZE BOTHA 2nd

APPELLANT

EXPERATO (PTY)LTD

1st Respondent

AFRICAN BANK LIMITED 2nd Respondent

OLD MUTUAL FINANCE (PTY)

LIMITED

3rd Respondent

BAYPORT FINANCIAL SERVICES (PTY)

LIMITED

4th Respondent

STANDARD BANK

OF SOUTH AFRICA LIMITED

5th Respondent

TRUWORTHS

LIMITED

6th Respondent

FOSCHINI RETAIL GROUP (PTY)

LIMITED

7th Respondent

Coram:

Prof J Maseko –

Presiding member

Adv F Manamela – Member

Mrs H Devraj –

Member

Date of hearing

– 11 December 2013

RULING AND

REASONS

APPELLENT

1. The First Appellant is Hans Reinhard Pettenburger-Perwald, a debt counsellor (hereinafter referred to as “First Appellant”) conducting business in Bloubergrand. He is also a registrant in terms of Section 40 of the National Credit Act, 34 of 2005 (the “NCA” or the “Act”) with registration number NCRDC 49.

2. The T.I 148 form was completed by the First Appellant on behalf of the consumer, Annelize Botha (hereinafter referred to as the “Second Appellant”).

RESPONDENTS

3. The Respondents are Experato (Pty) Limited, African Bank Limited, Old Mutual Finance (Pty) Limited, Bayport Financial Services (Pty)

Limited, Standard Bank of South Africa Limited, Truworths Limited and Foschini Retail Group (Pty) Limited (hereinafter referred to as “the Respondents”).

APPLICATION

TYPE

4. The Appellants brought an appeal to a full panel of the Tribunal in terms of Section 148(1) of the Act to the Tribunal, to appeal a decision by a single member.

BACKGROUND

5. On 26 June 2013, Presiding member, Prof T Woker refused to confirm a debt re-arrangement agreement as an order of the Tribunal, as per case number NCT/8758/2013/138(1)(P). The order was issued to the parties on 5 July 2013.

6. On 1 August 2013, the Second Appellant, through a registered debt counsellor, Hans Reinhard Pettenburger-Perwald, brought an application in terms of Section 148(1) to appeal the decision of the single panel member.

7. According to the application form filed with the Tribunal, the grounds for appeal relate to the inability of the Applicant to repay the debt. The First Appellant claims that the refusal was based on the Second Appellant having R2061.63 available to repay the debt, and the Second Appellant required R2 118.59, but that the actual amount available by the Second Appellant was R2 362.85 which includes the installment amounts and fees.

8. The application did not meet the requirements as set out in Rule 26(5) and 26(6) of the Rules of the Tribunal[1].

9. Rule 26(5) requires the appellant to :-

(a) prepare 4 copies of the record of the ruling appealed against;

(b) prepare 4 copies of the appeal documentation; and

(c) index and paginate such documents in separate bundles.

10. Rule 26(6) requires that the bundles contemplated in subrule (5) must be delivered to the Registrar within 5 days of the filing of the Respondent’s replying affidavit or in the absence of a reply within 5 days of the lapse of the period provided for in subrule (4).

11. On the date of the hearing there was no appearance by the Appellants and the Respondents, or a representative for either party.

DISMISSAL

OF APPLICATION

12. As stated above, there was no appearance by either the parties and nor was there any representatives on the date of the hearing.

Whilst Rule 26(9) provides for parties and their legal respresentative having to appear at the appeal hearing none of them did. This was despite the fact that all the parties were issued with a set down notice on 22 November 2013. They are therefore deemed to have known that they were required to attend the hearing.

13. Rule 24(1) – (3) of the Rules of the Tribunal, regarding non-appearance, provides that:

“(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 subrule (1)

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

14. From file information, the notice of set down was sent to all the parties by the Registrar’s office via e-mail on 22 November 2013.

15. There has been no formal application filed for a postponement in this matter, by any of the parties and nor was the matter withdrawn by the Apellants.

16. The Tribunal was satisfied that the parties were properly notified of the date, time and venue for the proceedings.

17. The appeal was then formally dismissed by the Tribunal.

RULING

Accordingly, the Tribunal hereby rules that the appeal lodged in terms of Section 148(1) of the Act is hereby dismissed.

Handed down in Centurion on this 22nd day of January 2014.

[signed]

Mrs H Devraj

Tribunal Member

Prof J Maseko (Presiding Member) and Adv F Manamela (Tribunal Member) concurring

[1] For the Conduct of Matters before the National Consumer Tribunal published under GN789 in GG30225 of 28 August 2007 as amended by GenN428 in GG34405 OF 29 June 2011 (hereinafter “the Rules of the Tribunal”).