Wesbank, A Division of First Rand Bank Ltd v Coetzee and Others (NCT/124350/2019/165) [2019] ZANCT 57 (17 April 2019)

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/124350/2019/165

In the matter between:

WESBANK,

A DIVISION OF FIRST RAND BANK LTD

APPLICANT

And

JAQCUELINE COETZEE

1st RESPONDENT

FIONN VAN ECK

2ND RESPONDENT

FIRST NATIONAL BANK,

A DIVISION OF FIRST RAND BANK LTD

3RD RESPONDENT

ABSA BANK LTD

4TH RESPONDENT

Coram:

Adv J Simpson Presiding Tribunal Member

Ms P Beck Tribunal Member

Adv F Manamela Tribunal Member

Date of Hearing - 17 April 2019

Date of Judgment-17 April2019

JUDGMENT AND REASONS

APPLICANT

1.

The Applicant in this matter is Wesbank, a division of First Rand Bank Ltd, a registered credit provider {hereinafter referred to as the "Applicant").

At the hearing of the matter the Applicant was represented by a candidate attorney, Mr P Zwane of Ehners and Fakude Attorneys.

RESPONDENTS

3.

The 1st Respondent is Jaqcueline Coetzee, a registered Debt Counsellor with registration number NCRDC 2322. The 2nd Respondent is a Consumer, Fionn Van Eck, who is under debt review. The 3rd and 4th Respondents are Credit Providers and are both registered with the National Credit Regulator as such in terms of the National Credit Act[1] (hereinafter collectively referred to as "the Respondents").

4.

There was no appearance by any of the Respondents or their representatives at the hearing.

APPLICATION TYPE

5.

This is an application in terms of Section 165 of the NCA to vary the debt re­ arrangement agreement; which was made an order of the Tribunal on 8 August 2018 under case number NCT/85733/2017/138(1) P.

CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS

6.

On 22 January 2019 the Applicant filed the application with the Tribunal. The application was served on all the Respondents via e-mail, with consent. On 23 January 2019 the Tribunal's Registrar issued a notice of filing to all the parties.

7. In terms of Rule 13 of the Rules of the Tribunal.[2] the Respondents had 15 business days to serve an answering affidavit and file the same with the Tribunal's Registrar. The Respondents

however failed to do so

8.

The Applicant did not file an application for a default order in terms of Rule 25(2).

9.

On 13 March 2019 the Tribunal's Registrar issued a notice of set down to all the parties setting the matter down for hearing on a default basis due to the pleadings being closed.

10.

On the date of the hearing the Presiding Tribunal member was satisfied that the notice of set down was adequately served on the Respondents and the matter proceeded on a default basis.

11.

Rule 13(5) provides that:

"Any fact or a/legation in the application or referral not specifically denied or admitted in the answering affidavit, will be deemed to have been admitted"

12.

Therefore, in the absence of any answering affidavit filed by the Respondents, the Applicant's application and all of the allegations contained therein are deemed to be admitted.

BACKGROUND

13.

On a previous occasion, the 1st Respondent / Debt Counsellor, Jaqcueline Coetzee, had applied for an order confirming a debt restructuring agreement between the 2nd Respondent (Consumer) and the Applicant as well as the 3rd and 4th Respondents; as an order of the Tribunal. The order was granted by the Tribunal on 8 August 2018 under case number NCT/85733/2017/138(1)P.

14.

The Applicant alleges that the order reflects the incorrect balance and payment details for Wesbank account number 852[…]. The order states that the outstanding balance on the account is R158 385.50 and the monthly repayments are R2 226.20. This is not in accordance with the letter from Wesbank dated 16 May 2017. The letter from Wesbank states that the outstanding balance is R170 136.49 and is repayable in cascading payments of R3 984.44. The Applicant requests that the order be varied to reflect the correct balance and payment details as agreed by the parties at the time.

CONSIDERATION OF SECTION 165 OF THE ACT

15

Section 165 of the Act provides for a rescission or variation of an order granted by the Tribunal "acting of its own accord or on application by a person affected by a decision or order." Section 165 further prescribes that such a rescission or variation may only be granted in the following instances.

15.1 When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it;

15.2 There is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

15.3 Made or granted as a result of a mistake common to all the parties to the proceedings.

These grounds will be detailed under separate headings:

16. Erroneously sought or granted

The courts have held that in an application for variation or rescission of an order, the Applicant bears the onus of establishing that the order was erroneously granted.[3] The court considered the meaning of the words "erroneously granted". This is dealt with in the Bakoven-case[4] where it was stated:

"An order or judgment is 'erroneously granted' when the Court commits an 'error' in the sense of 'a mistake in a matter of law appearing on the proceedings of a Court of record' (The Shorter Oxford Dictionary). It follows that a Court in deciding whether a judgment was 'erroneously granted' is, like a Court of Appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the

common Jaw, the applicant need not show 'good cause' in the sense of an explanation for his default and a bona fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala and Another v Pierre 1979 (4) SA 27 (T) at 30C-D). Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission."

Accordingly the words "erroneously granted" mean that the Tribunal must have committed an error or mistake in law. The court, in the matter of First National Bank of SA Bpk v Jurgens and Another,[5] the learned Judge Leveson stated:

"That leaves me only with the task of considering para (a) of the same sub-rule which makes provision for rescission or variation of an order or judgment erroneously sought or erroneously granted. I look first at the remedy available before the rule came into force. Ordinarily a court only had power to amend or vary its judgment if the court had been approached to rectify the judgment before the Court had risen. That relief was available at common law and with the only relief that could be obtained until the provisions of rule 42 were enacted. The proposition at common law is simply that once a court has risen it has no power to vary the judgment for it is functus officio. Firestone South Africa (Pty) Ltd v Genticuro AG, 1977(4) SA 298 (A). A principal judgment could be supplemented if an accessory had been inadvertently omitted, provided that the court was approached within a reasonable time. Here the judgment was granted two years ago and a reasonable time has expired. The question then is whether the limited relief at common Jaw has been extended by this provision. In the first place I must express considerable doubt that power exists in the Rules Board to amend the common law by the creation of a Rule. Leaving aside that proposition, however, the question that arises is whether the present case is one of a judgment 'erroneously sought or granted', those being the words used in Rule 42(1)(a). The ordinary meaning of 'erroneous' is 'mistaken' or 'incorrect'. I do not consider that the judgment was 'mistakenly sought' or 'incorrectly sought'. The relief accorded to the plaintiff was precisely the relief that its counsel requested. The complaint now is that there is an omission of an accessory feature from the judgment. I am unable to perceive how an omission can be categorised as something erroneously sought or erroneously granted. I consider that the rule only has operation where the applicant has sought an order different from that to which it was entitled under its cause of action as pleaded. Failure to mention a form of relief which would otherwise be included in the relief granted is not in my opinion such an error."

17.

Ambiguity. or an obvious error or omission. but only to the extent of correcting that ambiguity. error or omission

This ground for variation is clearly applicable in instances where an order granted by the Tribunal is vague or uncertain, or an obvious error occurred in the granting thereof. The applicable provision is unambiguous in stating that the order will only be varied to the extent of such an ambiguity, error or omission.

18.

Mistakes common to all the parties to the proceedings.

The applicable provision relates to an error which occurred in the granting of the order and requires that the error is common to all the parties.

CONSIDERATION OF THE EVIDENCE

19.

The evidence before the Tribunal is clear. The order granted at the time does not reflect the agreed balance and monthly instalments for Wesbank account number 852[…].

20.

This error constitutes an obvious error that stands to be corrected in accordance with Section 165(b) of the NCA and the order can therefore be varied.

ORDER

21 Accordingly, the Tribunal makes the following order-

21.1 The application to vary the order is granted. The order made on 8 August 2018 under case number NCT/85733/2017/138(1)P is hereby varied. The varied order is attached as ANNEXURE "A" to Wesbank Div of FRB Ltd v J Coetzee and others 124350.2019.165 - Varied consent order'; and

21.2 There is no order made as to costs.

Thus done and signed at Centurion on 17 April 2019

{signed}

Adv J Simpson

Presiding Tribunal Member

Ms P Beck (Tribunal Member) and Adv F Manamela (Tribunal Member) concurring.

ANNEXURE "A" to Wesbank Div of FRB Ltd v J Coetzee and others 124350.2019.165

IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CAPE TOWN

Case Number: NCT/85733/2017/138(1)P

JAQCUELINE COETZEE

APPLICANT

NCR REGISTRATION NUMBER: 2222

FIONN VAN ECK

CONSUMER

ID: 800[…]

WESBANK,

1st CREDIT PROVIDER

A DIVISION OF FIRST RAND BANK LIMITED

FIRST NATIONAL BANK, A DIVISION OF FIRSTRAND BANK

LIMITED

2nd CREDIT PROVIDER

ABSA BANK LIMITED

3rd CREDIT PROVIDER

VARIED CONSENT ORDER

The original order on this matter was granted on 8 August 2018. Wesbank, a division of First Rand Bank Limited subsequently filed an application on 23 January 2019 to vary the order. The order contained the incorrect outstanding balance and instalments due on account number 852[…]. The application was granted and the order varied to reflect the correct outstanding balance and instalments as agreed at the time. The varied order is in the new format but no other material 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. The parties' attention is drawn to sections 71(1),71(S)(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 O of this chapter, may apply to a debt counsellor for a clearance

certificate, once all the requirements in terms of section 71 have been met.

Section 71(5)

Upon receiving a copy of a clearance certificate, a credit bureau, or the national credit register must expunge from its 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 this 17'h day of April 2019

ADV J SIMPSON

PRESIDING MEMBER

NATIONAL CONSUMER TRIBUNAL

[1] Act 34 of 2005 (hereinafter referred to "the NCA").

[2] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters

before the National Consumer Tribunal, 2007 (Government Gazette No. 30225). As amended.

[3] Bakoven Ltd v G J Howes (Pty) ltd 1990(2) SA 446 at page 469 B

[4] Bakoven Ltd v G J Howes (Pty) Ltd 1990(2) SA

[5] 1993 (1)SA 245 at page 246 to 247.