Zulu v Lewis and Others (NCT/131413/2019/165) [2019] ZANCT 107 (5 July 2019)

Zulu v Lewis and Others (NCT/131413/2019/165) [2019] ZANCT 107 (5 July 2019)

The Tribunal found that the consent order of 6 March 2017 was erroneously granted because the debt counsellor failed to notify or serve the applicant with the application for the debt re-arrangement agreement to be made an order of the Tribunal. The applicant had terminated the debt review months prior, and the Tribunal records did not indicate any communication or service to the applicant regarding the application. The absence of notification and service constituted a procedural irregularity, and the requirements for rescission under section 165 of the National Credit Act were satisfied. The Tribunal accepted the applicant's uncontested evidence and granted the rescission of the order.

Citation
[2019] ZANCT 107
Parties
Applicant: Mthandeni Mbongeni Patrick Zulu; Respondent: Lorenco Lewis; Respondent: Capfin a Division of Century Capital (Pty) Ltd; Respondent: Nedbank Limited; Respondent: Wesbank a Division of Firstrand Bank Ltd
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
5 July 2019
Case Number
NCT/131413/2019/165
Procedural Posture
Rescission Application / Hearing Before Full Panel
Outcome
Application for rescission granted.
Judges
D Terblanche, P Beck, T Woker
Legal Topics
Debt Review, Rescission of Order, Service of Process, National Credit Act
Civil Procedure Banking and Finance Debt Review Rescission of Order Service of Process National Credit Act

Case Brief

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Parties

Mthandeni Mbongeni Patrick Zulu

Applicant

Lorenco Lewis

Respondent

Capfin a Division of Century Capital (Pty) Ltd

Respondent

Nedbank Limited

Respondent

Wesbank a Division of Firstrand Bank Ltd

Respondent

Procedural Posture

Rescission Application / Hearing Before Full Panel

Legal Issues

  1. 1 Whether the Tribunal order of 6 March 2017 was erroneously granted in the absence of the affected consumer.
  2. 2 Whether the requirements for rescission under section 165 of the National Credit Act are met.
  3. 3 Whether the debt counsellor complied with service and notification obligations under Tribunal Rules.

Ratio Decidendi

The Tribunal found that the consent order of 6 March 2017 was erroneously granted because the debt counsellor failed to notify or serve the applicant with the application for the debt re-arrangement agreement to be made an order of the Tribunal. The applicant had terminated the debt review months prior, and the Tribunal records did not indicate any communication or service to the applicant regarding the application. The absence of notification and service constituted a procedural irregularity, and the requirements for rescission under section 165 of the National Credit Act were satisfied. The Tribunal accepted the applicant's uncontested evidence and granted the rescission of the order.

Court Disposition

Application for rescission granted.

Orders

  • The application for rescission of the order dated 6 March 2017 under case reference number NCT/66546/2016/138(1)(P) is granted.
  • There is no order as to costs.