Sager obo Jiyane and Another v Absa Bank Limited and Others (NCT/60170/2016/165(1)(P)) [2017] ZANCT 85 (15 May 2017)
- Citation
- [2017] ZANCT 85
- Status
- Order
- Jurisdiction
- South Africa
- Court
- National Consumer Tribunal
- Panel
- J Simpson
- Case number
- NCT/60170/2016/165(1)(P)
More details
- Court
- National Consumer Tribunal
- Panel
- J Simpson
- Case number
- NCT/60170/2016/165(1)(P)
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the only error in the original order was the incorrect reflection of the consumers' identity numbers. The debt counsellor's application to vary the order was granted, as the correction did not affect the substance of the debt re-arrangement or the parties' rights and obligations. The varied order confirms the payment structure between the consumers and the credit providers as an order of the Tribunal under section 150 of the National Credit Act. The Tribunal further reminded the parties of their obligations under sections 71 and 152 of the Act, including the process for obtaining a clearance certificate and the enforceability of the order. Failure to comply with the order constitutes an offence under section 160(1) of the Act.
Court disposition
The application to vary the original debt re-arrangement order is granted. The order is varied to reflect the correct identity numbers of the consumers. The payment structure is confirmed as an order of the Tribunal.
Orders
- The payment structure between the consumers and the credit providers is confirmed as an order of the Tribunal in terms of section 150 of the National Credit Act.
- The order is varied to reflect the correct identity numbers of the consumers.
- The parties are reminded of their rights and obligations under sections 71(1), 71(5)(a), and 152 of the National Credit Act.
- Failure to comply with the order constitutes an offence in terms of section 160(1) of the National Credit Act.
02
Material facts
Parties
Benay Sager
ApplicantProtas Mduduzi Jiyane
ApplicantPuseletso Roseline Jiyane
ApplicantAbsa Bank Limited
RespondentAddcon (Pty) Ltd
RespondentCapitec Bank Limited
RespondentFoschini Retail Group (Pty) Ltd
RespondentMarkhams, a division of the Foschini Retail Group (Pty) Ltd
RespondentNedbank Limited
RespondentWesbank, a division of Firstrand Bank Limited
RespondentWoolworths (Pty) Limited
RespondentAmounts and remedies
- Current Outstanding Foschini Retail Group (pty) Ltd: ZAR 3,882.33
- Current Outstanding Markhams, a Division of the Foschini Retail Group (pty) Ltd: ZAR 3,672.22
- Current Outstanding Nedbank Limited: ZAR 15,417.02
- Current Outstanding Woolworths (pty) Limited: ZAR 3,728.62
- Current Outstanding Addcon (pty) Ltd: ZAR 5,364.16
- Current Outstanding Wesbank, a Division of Firstrand Bank Limited: ZAR 70,298.39
- Current Outstanding Absa Bank Limited (0000003041185197): ZAR 57,030.85
- Current Outstanding Absa Bank Limited (8073494002): ZAR 110,988.35
- Current Outstanding Addcon (pty) Ltd (18191400): ZAR 22,959.26
- Current Outstanding Capitec Bank Limited (1363597467): ZAR 73,059.4
- Current Outstanding Capitec Bank Limited (1466315170): ZAR 64,959.33
03
Procedural history
Posture
Debt Rearrangement Application / Variation of Order
04
Questions and positions
Legal issues
- 01
Whether the Tribunal should vary the original debt re-arrangement order to correct the consumers' identity numbers.
- 02
Whether the varied order should be confirmed as an order of the Tribunal under section 150 of the National Credit Act.
- 03
What are the parties' obligations under the varied order and the National Credit Act.
Party arguments
- Applicant
- The debt counsellor submitted that the original order incorrectly reflected the identity numbers of the consumers and requested the Tribunal to vary the order to reflect the correct details. The applicant argued that no other changes were necessary and that the variation would ensure compliance with the National Credit Act.
- Respondent
- The respondents did not oppose the application for variation. There was no evidence of objection or dispute regarding the correction of the identity numbers or the confirmation of the payment structure.
05
Court’s reasoning
Legal principles
- 01
Section 165 of the National Credit Act, Act 34 of 2005
A Tribunal may vary its own order to correct errors that do not affect the substance of the order, provided the parties are properly notified and no prejudice results.
- 02
Section 152 of the National Credit Act, Act 34 of 2005
A debt re-arrangement order issued by the Tribunal is enforceable as if it were an order of the High Court.
- 03
Section 71(1) and 71(5) of the National Credit Act, Act 34 of 2005
Consumers whose debts have been re-arranged may apply for a clearance certificate, and upon receipt, credit bureaus must expunge the record of the debt re-arrangement.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the only error in the original order was the incorrect reflection of the consumers' identity numbers. The debt counsellor's application to vary the order was granted, as the correction did not affect the substance of the debt re-arrangement or the parties' rights and obligations. The varied order confirms the payment structure between the consumers and the credit providers as an order of the Tribunal under section 150 of the National Credit Act. The Tribunal further reminded the parties of their obligations under sections 71 and 152 of the Act, including the process for obtaining a clearance certificate and the enforceability of the order. Failure to comply with the order constitutes an offence under section 160(1) of the Act.
Obiter and limits
- The Tribunal emphasised that any decision, judgment, or order of the Tribunal may be served, executed, and enforced as if it were an order of the High Court.
- The parties are warned that non-compliance with the Tribunal's order is an offence under section 160(1) of the National Credit Act.
Court disposition
The application to vary the original debt re-arrangement order is granted. The order is varied to reflect the correct identity numbers of the consumers. The payment structure is confirmed as an order of the Tribunal.
- The payment structure between the consumers and the credit providers is confirmed as an order of the Tribunal in terms of section 150 of the National Credit Act.
- The order is varied to reflect the correct identity numbers of the consumers.
- The parties are reminded of their rights and obligations under sections 71(1), 71(5)(a), and 152 of the National Credit Act.
- Failure to comply with the order constitutes an offence in terms of section 160(1) of the National Credit Act.
Source and reliance status
National Consumer Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
National Consumer Tribunal
Order
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 AT CENTURION
Case Number: NCT/60170/2016/165(1)(P)
In the matter between:
BENAY SAGER
APPLICANT
NCR REGISTRATION NUMBER: 2484
And
PROTAS
MDUDUZI JIYANE
IDENTITY NUMBER: [7...]
PUSELETSO
ROSELINE JIYANE IDENTITY NUMBER: [8...] 1ST CONSUMER 2ND CONSUMER
ABSA BANK
LIMITED
1st Respondent \ Credit Provider
ADDCON (PTY)
LTD
2nd Respondent \ Credit Provider
CAPITEC BANK
LIMITED
3rd Respondent \ Credit Provider
FOSCHINI RETAIL GROUP (PTY) LTD 4th Respondent \ Credit Provider
MARKHAMS, A DIVISION OF THE FOSCHINI RETAIL GROUP (PTY)
LTD
5th Respondent \ Credit Provider
NEDBANK
LIMITED
6th Respondent \ Credit Provider
WESBANK, A DIVISION OF
FIRSTRAND BANK
LIMITED
7th Respondent \ Credit Provider
WOOLWORTHS (PTY)
LIMITED
8th Respondent \ Credit Provider
VARIED CONSENT ORDER
The original order on this matter was issued on 21 October 2016. The debt counsellor subsequently informed the Tribunal that the identity numbers for the consumers were wrongly reflected on the order and applied for it to be varied. The application was granted and the order is now varied to reflect the correct identity numbers. No other changes have been made to the order.
The Tribunal, having read the papers filed of record and being satisfied that the Applicant(s) and The Respondent(s) are parties to a debt re-arrangement facilitated by a Debt Counsellor under section 86(7)(b) read with section 138(1) of The National Credit Act, Act 34 of 2005 (the Act), hereby makes the following order:
1. The payment structure between the consumer (s)and the credit provider(s) is confirmed as an order of the Tribunal in terms of section 150 of the Act
2.
Credit Provider
Reference
Current Outstanding
Proposed Payment Period Proposed Annual Interest Proposed Instalment Driva Protect VAP & Linked Insurance 1
FOSCHINI RETAIL GROUP (PTY)
LTD
0010010000278857393
R3,882.33
59 2.35 % R72.31 2
MARKHAMS, A DIVISION OF THE FOSCHINI RETAIL GROUP (PTY)
LTD
0012010001010409960
R3,672.22
59 2.35 % R68.40 3
NEDBANK
LIMITED
5898460926678624
R15,417.02 59 2.35 % R275.64 4
WOOLWORTHS (PTY) LIMITED
6007850191826401
R3,728.62
59 2.35 % R69.73 5
ADDCON (PTY)
LTD
2563274
R5,364.16
Until Settled 0.79 % R94.17 6
WESBANK, A DIVISION OF FIRSTRAND BANK
LIMITED
85225431406
R70,298.39
69 9.13 % R1,417.17 R95.00 7
ABSA BANK LIMITED
0000003041185197
R57,030.85
1 1.06 % R219.17 58 R1,041.51 8
ABSA BANK LIMITED
8073494002
R110,988.35
1 9.05 % R247.40 R116.20 59 R1,058.82 218 R1,283.07 9
ADDCON (PTY) LTD
18191400
R22,959.26
Until Settled 1.13 % R377.09 10
CAPITEC BANK LIMITED
1363597467
R73,059.40
60 2.52 % R1,305.86 11
CAPITEC BANK
LIMITED
1466315170
R64,959.33
60 2.43 % R1,161.88
2. The parties' attention is drawn to sections 71(1),71(5)(a) and 152 of the Act which states as follows:
Section 71(1).
A consumer, whose debts have been re-arranged in terms of part D of this chapter, may apply to a debt counsellor at any time for a clearance certificate
Section 71(5)
Upon receiving a copy of a clearance certificate, a credit bureau, or the national credit register must expunge from it's records the fact that the consumer was subject to the relevant debt re-arrangement order or agreement
Section 152
Any decision, judgement or order of the Tribunal may be served, executed and enforced as if it were an order of the High Court.
3. The parties are warned that failure to comply with the order of the Tribunal constitutes an offence in terms of section 160(1) of the Act
Dated at CENTURION on 15 May 2017
Adv J Simpson Presiding Member National Consumer Tribunal
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