Visser v Van Zyl and Another (NCT/367612/2024/141(1)(b)) [2025] ZANCT 29 (31 May 2025)

THE NATIONAL CONSUMER

TRIBUNAL

HELD AT CENTURION

Case Number: NCT/367612/2024/141(1)(b)

In the matter between:

THEUNIS

JOHANNES VISSER

APPLICANT and

PHILLIPUS

JOHANNES VAN ZYL 1ST

RESPONDENT

NATIONAL

CREDIT REGULATOR 2ND

RESPONDENT

Coram:

Ms N Maseti - Presiding Tribunal member

Mr S Hockey - Tribunal member

Dr M Peenze - Tribunal member

Date of hearing - 30 May 2025

Date of ruling - 31 May 2025

JUDGMENT AND REASONS

THE PARTIES

1. The applicant is Theunis Johannes Visser, an adult male consumer as defined in section 1 of the National Credit Act, 34 of 2005 (the NCA). At the hearing, the applicant represented himself.

2. The first respondent is Phillipus Johannes van Zyl, a former debt counsellor (the first respondent). When he was registered as such, his NCR registration number was NCRDC3220.

3. The second respondent is the National Credit Regulator (the NCR), a state organ and a juristic person established under section 12 of the NCA to regulate the consumer credit market and ensure compliance with the NCA.

4. Neither respondent filed an answering affidavit to oppose this application, and the matter was accordingly set down as unopposed.

5. The day before the hearing, a representative for the first respondent wrote to the registrar of the National Consumer Tribunal (the Tribunal) requesting that the matter be removed from the roll to allow him the opportunity to file a condonation application for the late filing of an answering affidavit. This communication was sent to the Tribunal's panel members, who considered the request. The first respondent did not appear personally or through a representative at the hearing.

6. Before the hearing commenced, the panel members requested the Registrar of the Tribunal (the Registrar) to contact the first respondent to ascertain whether he would appear, without success. As the first respondent was duly served with this application as well as the notice of set down, and since there was no formal request for a postponement, the panel decided to proceed with the hearing in the first respondent’s absence.

APPLICATION TYPE

7. This is an application in terms of section 141(1)(b), in which the applicant, with leave granted by the Tribunal, seeks redress against the first respondent for the alleged failure to manage his debt review process properly, resulting in his vehicle being repossessed despite him regularly paying his monthly repayments in accordance with the debt review process for distribution to his creditors.

8. In terms of section 141(1)(b) of the NCA, if the NCR issues a notice of non-referral, the complainant may refer the matter directly to the Tribunal with the leave of the Tribunal. The Tribunal granted such leave on 27 March 2025.

TERMINOLOGY

9. A reference to a section in this judgment refers to a section of the NCA unless indicated otherwise, a reference to a regulation refers to the NCA Regulations, 2006 (the regulations)[1] and a reference to a rule refers to the Tribunal Rules.[2]

BACKGROUND and DISCUSSION

10. The information the applicant provided in his referral is lacking in detail and clarity. However, from a reading of the papers he placed before the Tribunal, it is apparent that he experienced financial difficulties as a result of which he applied for and was placed under debt review by the first respondent

11. In his referral form, the applicant states that the debt counsellor [the first respondent] did not distribute payments to his credit providers, failed to instruct the payment distribution agent to distribute funds, that he was still receiving calls from his credit providers advising that no payments were received resulting in his accounts being handed over to debt collectors and his vehicle being repossessed and sold at an auction.

12. In its notice of non-referral dated 20 November 2024, the NCR advised the applicant that it had already successfully taken enforcement steps at the Tribunal against the first respondent under case number NCT/295867/2022/57(1). The NCR outlined the relief the Tribunal granted in its judgment dated 3 August 2024. The applicant was advised that his complaint related to paragraph 3.3.1. of the notice of non-referral, which is reflected in paragraph 42.1 of the Tribunal’s order. For convenience, the full judgment of the Tribunal is attached to this judgment, marked “A”.

13. The NCR further advised the applicant that, in terms of section 166(2), a complaint could not be referred to the Tribunal or the Consumer Court against any person who is or has been a respondent in proceedings under another section of the NCA relating to substantially the same conduct and that the debt counsellor against whom he lodged his complaint was the first respondent under case number NCT/295867/2022/57(1). Furthermore, the NCR advised that, in terms of section 164(3) and (4), and in the event that the first respondent did not appeal the Tribunal’s judgment, the applicant could approach the Tribunal for a “certificate of damages” to allow him to approach a civil court with jurisdiction for a determination for damages to be made.

14. After the applicant filed his application with the Tribunal, the Registrar issued a notice of incomplete filing on 10 December 2024. Therein, it was noted what the NCR advised about section 166(2), and the applicant was again advised that he could file a section 164 application for a certificate of prohibited conduct to claim damages. The Registrar advised that for this purpose, the applicant had to complete Form TI.r30A and Form 164[3] and that he must include the above- mentioned judgment in his submission.

15. It appears that the applicant heeded the above advice, or at least attempted to do so, as he filed an application for a section 164 certificate thereafter[4]. However, he did so under the case number of the present matter, and in a further notice of incomplete filing, he was advised that the section 164 application had to be filed separately from the section 141(1)(b) application.

16. A notice of complete filing was eventually issued on 31 January 2024, whereafter the matter was set down for the application for leave to refer, which was granted.

DISCUSSION

17. The relief that the applicant seeks is a refund of the monies he paid to the first respondent and which were not utilised as payments to his credit providers, the replacement of his vehicle that was repossessed and sold at an auction or monetary reimbursement of same, and a settlement of any shortfall which eventuated as a result of the repossession of his vehicle and its sale at an auction to the credit provider, ABSA Bank Limited who financed his vehicle.

18. The above relief that the applicant seeks amounts to damages which, even if the Tribunal were not precluded from hearing this matter, it is not authorised to grant. It is not within the Tribunal’s authority to interfere with the process by which the applicant’s vehicle was repossessed and sold. Whatever may have occurred, ABSA Bank Limited would have an interest in that matter and was not cited in the present proceedings.

19. The Tribunal has already made an order against the first respondent, as can be gleaned from the judgment dated 4 August 2024, which is attached hereto. Therein, the first respondent’s conduct in managing consumers' debt counselling affairs was declared prohibited. In these circumstances, the applicant can apply for a prohibited conduct certificate under section 164, as he seems to have done or attempted to do.

20. It is indeed so, as the NCR and the Tribunal advised the applicant, section 166(2) precludes the referral of a matter to the Tribunal against a person such as the first respondent who has been a respondent in proceedings under another section of the NCA relating to substantially the same conduct. Moreover, the order that was granted under case number NCT/295867/2022/57(1) allows for the appointment of an independent auditor by the first respondent to identify the names of all consumers who were victims of the first respondent’s violations.

THE ORDER

21. In the result, the following order is made:

i. The applicant’s application is dismissed.

ii. There is no order as to costs.

S Hockey (Presiding Tribunal member)

Tribunal members Dr M Peenze and Ms N Maseti concur.

[1] Published under Government Notice R489 in Government Gazette 28864 of 31 May 2006.

[2] The rules are titled “Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters

before the National Consumer Tribunal, 2007”, published in GN 789 of 28 August 2007 (GG No. 30225), as amended.

[3] The notice of incomplete filing is on pages 73 to 76 of the record.

[4] See page 78 of the record.