Sitemela v Old Mutual Finance (RF) (Pty) Ltd (NCT/164775/2020/141(1)(b)) [2021] ZANCT 38 (16 August 2021)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case Number: Case Number: NCT/164775/2020/141(1)(b)

IN THE MATTER BETWEEN:

RAYMOND

MLUKELI SITEMELA

APPLICANT

and

OLD MUTUAL FINANCE (RF) (PTY) LTD

RESPONDENT

Coram:

Ms. D Terblanche - Presiding Tribunal member

Ms. P Beck - Tribunal member

Dr M Peenze - Tribunal member

JUDGMENT AND REASONS – LEAVE

TO REFER

THE

PARTIES

1. The Applicant is Raymond Mlukeli Sitemela (the “Applicant”), an adult male person.

2. The Respondent is Old Mutual (RF) (Pty) Ltd, a company that is duly incorporated and registered in terms of the company laws of the Republic of South Africa. The Applicant is registered with the National Credit Regulator (the “NCR” or the “Regulator”) as a credit provider in terms of the National Credit Act 34 of 2005 (the “NCA”).

BACKGROUND,

APPLICATION AND JURISDICTION

3. The Applicant complained to the Regulator that the Respondent contravened the NCA by extending credit to him recklessly and charging him excessive interest.

4. The Regulator non-referred the Applicant’s complaint on 28 May 2020.

5. The Applicant applied to the Tribunal for leave to refer his complaint to the Tribunal directly after the Regulator non-referred his complaint in terms of section 141(1)(b) of the NCA, which states-

“If the National Credit Regulator issues a notice of non-referral in response to a complaint other than a complaint concerning section 61 or an offence in terms of this Act, the complainant concerned may refer the matter directly to the Tribunal, with the leave of the Tribunal.”

6. On 24 July 2020, the Applicant filed an application for leave to refer a complaint against the Respondent directly with the National Consumer Tribunal (the “Tribunal”).

7. On 27 July 2020, the Registrar issued a Notice of Filing and served it on the parties by email.

8. On 26 October 2020, the Registrar issued a Notice of Set Down for the Applicant’s application for leave to refer to be heard on 3 June 2021 and served it on the parties by email.

9. On 10 November 2020, the Respondent applied for condonation for the late filing of its answering affidavit and filed its answering affidavit on the same date.

10. On 15 April 2021, the Tribunal granted the Respondent leave to file its answering affidavit.

11. On 1 July 2021, the Registrar enrolled the Applicant’s application for leave to refer his complaint directly to the Tribunal (the “leave application”), to be heard on 16 August 2021.

12. This judgment and reasons relate to the leave application.

13. In terms of section 27(a)(i) of the National Credit Act, Act 34 of 2005 (the “NCA”) the National Consumer Tribunal (the “Tribunal”) has jurisdiction.

ISSUES

TO BE DECIDED

14. In terms of section 141(1) of the NCA, the Applicant may only refer the matter directly to the Tribunal with leave of the Tribunal.

15. The Tribunal must decide whether to grant the Applicant leave to refer his complaint, non-referred by the NCR, directly to the Tribunal.

THE LAW: APPLICATION FOR LEAVE

16. In the matter of Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others (Case no 314/2020) [2021] ZASCA 91 (25 June 2021) SAFLII (“Lewis Stores” matter), the court provided guidance regarding adjudicating leave to refer applications brought before the Tribunal. The court held in the Lewis Stores matter that–

“[15] As I have explained, the NCA provides for an expeditious, informal and cost-effective complaints procedure. Section 141(1)(b) confers on the Tribunal a wide, largely unfettered discretion to permit a direct referral. The NCA does not require a formal application to be made and it is not necessary for purposes of the present appeal, nor is it desirable, to circumscribe the factors to which the Tribunal should have regard. There is no test to be applied in deciding whether or not to grant a direct referral to it in respect of a complaint. The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings by the Regulator, and to decide whether it deserves its attention. Circumstances which may influence its decision may include the prospects of success, the importance of the issue, the public interest to have a decision on the matter, the allocation of resources, the complainant’s interest in the relief sought and the fact that the Regulator did not consider that it merited a hearing before the Tribunal. The list is not intended to be exhaustive.”

THE APPLICANT’S COMPLAINTS

17. The Applicant complained to the National Credit Regulator (the “Regulator” or the “NCR”) of “misconduct, recklessness and lack of affordability”.

18. The Applicant alleged that the Respondent granted him two loans, but that the Respondent failed to conduct proper affordability assessments and that the Respondent did not take all the Applicant’s credit agreements and expenses into account -

18.1. The Respondent did not consider the Applicant’s African Bank and ABSA loan accounts.

18.2. The Respondent did not fully consider all the Applicant’s expenses.

18.3. The Applicant is overindebted because of the loans.

THE NCR’S REASONS FOR NON-REFERRING THE APPLICANT’S COMPLAINT

19. The NCR set out detailed reasons for non-referring the Applicant’s complaint in its notice of non-referral to the Applicant. The NCR concluded that the Respondent did not extend loans to the Applicant recklessly; nor charged the Applicant excessive interest, because -

19.1. The Respondent conducted the required affordability assessments;

19.2. The African Bank account the Applicant claimed the Respondent did not consider, appeared on the Applicant’s Experian report the Respondent considered on 11 December 2019;

19.3. Though a limit of 25 National Loan Register (NLR) accounts have been set on the Experian report, and the Applicant had 32 accounts, the Respondent could still view the Applicant’s total exposure;

19.4. The Applicant provided and signed the income and expenditure declaration on 11 December 2019;

19.5. The Applicant had a surplus available after the Respondent deducted the new installments; and

19.6. The Respondent charged the Applicant a lesser interest rate than the maximum interest rate the Respondent could have levied under the Regulations promulgated under the NCA.

THE RESPONDENT’S SUBMISSIONS

20. The Respondent raised various points in limine, namely that -

20.1. The application is unclear and difficult to follow;

20.2. The Applicant did not include Form TI.r30A in his application; and

20.3. The Applicant filed his application for leave to refer outside the prescribed 20 days from the date the NCR issued the notice of non-referral, i.e., 28 May 2020, without applying for condonation for the late filing of the application.

21. The Respondent submitted as follows regarding the merits of the Applicant’s application:

21.1. The Respondent denied that it did not perform proper affordability assessments; overcharged the Applicant interest; and that the loans the Respondent entered with the Applicant rendered the Applicant overindebted;

21.2. The Respondent attached to its answering affidavit the –

21.2.1. Personal expenses declared by the Applicant;

21.2.2. The credit bureau inquiries’ results;

21.2.3. The Applicant’s pay slip and bank statement; and

21.2.4. Screenshots of the Respondent’s assessments through its computer programme the Respondent used for the affordability assessment for the loans to the Applicant;

21.3. The Applicant had 32 credit agreements of which 25 credit agreements (accounts) showed in the Experian report. The Experian report did not show the African Bank loan account on a “line-item” basis. Nevertheless, the African Bank loan account reflected under the Applicant’s total exposure, which the Respondent took into account;

21.4. The Applicant declared and confirmed his personal expenses and did not dispute that the expenses he declared and confirmed were not a true reflection of his expenses in his complaint;

21.5. The loans the Respondent entered into with the Applicant did not render the Applicant over-indebted. The Applicant had a surplus of R 6 101, 09 after the deduction of the two new credit agreement installments; and

21.6. The Respondent did not charge the Applicant excessive interest: the rate of interest the Respondent was entitled to charge the Applicant was 27.5%. The Respondent charged the Applicant 27.5% and 27% respectively.

CONSIDERATION

AND ANALYSIS

22. The Tribunal considered the Applicant’s leave application in the light of the submissions the parties made to the Tribunal, namely the Applicant’s complaints; the Regulator’s detailed and exhaustive reasons for non-referring the Applicant’s complaints to the Tribunal; and the Respondent’s averments and supporting evidence in its answering affidavit.

23. In the Lewis Stores matter above the court stated that –

23.1. “The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings by the Regulator, and to decide whether it deserves its attention…”;

23.2. There is no test to be applied ‘in deciding whether or not to grant a direct referral to it in respect of a complaint…”’; and

23.3. The circumstance the Tribunal may consider deciding whether a complaint deserves its attention is not exhaustive.

24. The Tribunal considered and upheld the Respondent’s point in limine regarding the Applicant having filed the application outside the 20 days from the date the NCR issued the notice of non-referral; where:

24.1. The NCR issued its notice of non-referral on 28 May 2020. The Applicant had to file his application to refer his complaint directly with the Tribunal with the leave of the Tribunal within 20 days from 28 May 2020, i.e., the date of the NCR’s notice of non-referral. The Applicant had to file his application with the Tribunal by 28 June 2020. The Applicant filed his application for leave to refer his complaint directly with the Tribunal on 24 July 2020;

24.2. Rule 4(1) requires an Applicant to comply with the requirements set out in Table 2 of the rules for the type and application being made, in respect of the time, forms to be used, documents and information required, the fee payable, parties to be notified and documents to be sued;

24.3. If all the requirements of Table 2 have not been met and if the Application does not take the steps in completing the application within the time permitted by the Registrar of the Tribunal, the application shall lapse;[1]

24.4. To prevent his application from lapsing, the Applicant could have applied to the Tribunal for condonation for the late filing of his application to the Tribunal in terms of Rule 34 the Rules of Proceedings of matters before the National Consumer Tribunal (the Rules), which on the information before the Tribunal; and

24.5. The Applicant did not apply to the Tribunal, on good cause shown, for the Tribunal’s indulgence to condone the late filing of his application for leave to refer his application to the Tribunal directly.

25. The Tribunal dismisses the Respondent’s remaining points in limine. Section 142 of the NCA requires of the Tribunal, amongst others, to be inquisitorial and informal. In the context of those provisions, the Tribunal will not dismiss an application based on the lack of clarity the Tribunal can establish through exercising its inquisitorial powers; or for the lack of a Form if the information the form contains appears apparent from the contents of the Application or papers before the Tribunal.

26. Regarding the merits of the Applicant’s application to refer his complaint directly to the Tribunal, the Tribunal benefitted from the detailed reasons the Regulator put forward, and the submissions and the evidence the Respondent put forward about the Applicant’s complaints.

27. The Tribunal considered the submissions the parties made before the Tribunal as paraphrased in paragraphs 17 (for the Applicant) and 20 to 21 (for the Respondent) above.

28. In the view of the Tribunal, in the light of the outcome of the NCR’s investigation of the Applicant’s complaint and the Respondent’s submissions and evidence, the Applicant’s prospects of success with his application and the relief he seeks from the Tribunal do not merit the Tribunal granting the Applicant leave to refer his complaint directly to the Tribunal.

CONCLUSION

29. The Tribunal cannot grant the Applicant leave to refer his complaint directly to the Tribunal.

ORDER

30. Accordingly, the Tribunal makes the following order –

30.1. The Applicant’s application for leave to refer the matter directly to the Tribunal is refused; and

30.2. There is no order for costs to any of the parties.

Dated at Centurion on this 16th day of August 2021.

Signed

Ms. D Terblanche

Presiding Tribunal member

Ms. P Beck, Tribunal member and Dr M Peenze, Tribunal member concurring.