Sager and Others v Absa Bank Limited and Others (NCT/87585/2017/165) [2017] ZANCT 121 (25 October 2017)

Sager and Others v Absa Bank Limited and Others (NCT/87585/2017/165) [2017] ZANCT 121 (25 October 2017)

The Tribunal found that the original order confirming the debt restructuring agreement failed to include the agreed interest rate terms for the BMW Financial Services account, specifically the phrase '13.25% linked to the prime interest rate' as accepted by BMW. This omission constitutes an obvious error under Section 165(1)(b) of the National Credit Act. As no answering affidavits were filed and the application was properly served, the allegations are deemed admitted. The Tribunal is empowered to vary its order to correct such an omission. Accordingly, the application to vary the order is granted to reflect the correct interest rate terms for BMW Financial Services.

Citation
[2017] ZANCT 121
Parties
Applicant: Benay Sager; Respondent: Shaylene Adonis; Respondent: Byron John Adonis; Respondent: Absa Bank Limited; Respondent: African Bank Limited; Respondent: BMW Financial Services (South Africa) (Pty) Ltd; Respondent: First National Bank, a division of Firstrand Bank Limited; Respondent: Foschini Retail Group (Pty) Ltd; Respondent: GetBucks (Pty) Ltd; Respondent: Go-Debt (Pty) Ltd; Respondent: Ithala Limited; Respondent: MRP Money, a division of Mr Price Group Limited on behalf of Mr Price Home; Respondent: Nedbank Limited; Respondent: Quickdrawsoftware Solutions (Pty) Ltd, t/a Cash Converters Midrand; Respondent: RCS Group; Respondent: RCS Health Care; Respondent: RCS Personal Finance (Pty) Limited; Respondent: Standard Bank of South Africa Limited; Respondent: Syndicated Debt Collectors t/a Debt Tec on behalf of Atlas Finance (Pty) Ltd; Respondent: Truworths Limited
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
25 October 2017
Case Number
NCT/87585/2017/165
Procedural Posture
Variation Application / Application to Vary Tribunal Order Under Section 165 of the National Credit Act
Outcome
Application to vary the Tribunal order is granted.
Judges
J Simpson, N Maseti, A Potwana
Legal Topics
Debt Restructuring, Variation of Tribunal Order, National Credit Act, Default Proceedings
Banking and Finance Civil Procedure Debt Restructuring Variation of Tribunal Order National Credit Act Default Proceedings

Case Brief

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Parties

Benay Sager

Applicant

Shaylene Adonis

Respondent

Byron John Adonis

Respondent

Absa Bank Limited

Respondent

African Bank Limited

Respondent

BMW Financial Services (South Africa) (Pty) Ltd

Respondent

First National Bank, a division of Firstrand Bank Limited

Respondent

Foschini Retail Group (Pty) Ltd

Respondent

GetBucks (Pty) Ltd

Respondent

Go-Debt (Pty) Ltd

Respondent

Ithala Limited

Respondent

MRP Money, a division of Mr Price Group Limited on behalf of Mr Price Home

Respondent

Nedbank Limited

Respondent

Quickdrawsoftware Solutions (Pty) Ltd, t/a Cash Converters Midrand

Respondent

RCS Group

Respondent

RCS Health Care

Respondent

RCS Personal Finance (Pty) Limited

Respondent

Standard Bank of South Africa Limited

Respondent

Syndicated Debt Collectors t/a Debt Tec on behalf of Atlas Finance (Pty) Ltd

Respondent

Truworths Limited

Respondent

Procedural Posture

Variation Application / Application to Vary Tribunal Order Under Section 165 of the National Credit Act

Legal Issues

  1. 1 Whether the Tribunal order dated 8 May 2017 should be varied to reflect the agreed interest rate terms for BMW Financial Services.
  2. 2 Whether the omission of the interest rate phrase constitutes an obvious error or omission under Section 165(b) of the National Credit Act.

Ratio Decidendi

The Tribunal found that the original order confirming the debt restructuring agreement failed to include the agreed interest rate terms for the BMW Financial Services account, specifically the phrase '13.25% linked to the prime interest rate' as accepted by BMW. This omission constitutes an obvious error under Section 165(1)(b) of the National Credit Act. As no answering affidavits were filed and the application was properly served, the allegations are deemed admitted. The Tribunal is empowered to vary its order to correct such an omission. Accordingly, the application to vary the order is granted to reflect the correct interest rate terms for BMW Financial Services.

Court Disposition

Application to vary the Tribunal order is granted.

Orders

  • The application to vary the order is granted. The varied order is attached as 'Annexure A'.
  • There is no order as to costs.