South Africa: Consumer Affairs Court

You are here: SAFLII >> Databases >> South Africa: Consumer Affairs Court >> 2021 >> [2021] ZACONAF 1

| Noteup | LawCite

Thebe v Capitec Bank Limited (FSCAC2020/11-7) [2021] ZACONAF 1 (1 October 2021)

Download original files

PDF format

RTF format

/ff

IN THE CONSUMER AFFAIRS COURT FOR THE PROVINCE OF FREE STATE IN THE AREA OF BLOEMFONTEIN

Case no. FSCAC2020/11-7

In the matter between:

MPAI ANACLETA THEBE Plaintiff

and

CAPITEC BANK LIMITED Defendant

The Court is constituted as follows:

Chairperson (alternative) Advocate P du P Greyling

Prof R-M Jansen (member)

Mr A G Sefo (member)

Mr G J Bredenkamp (member)

Me D Moeti (member)

JUDGMENT

1. BACKGROUND:

1.1 Plaintiff took out a loan with the Defendant on the 31^st August 2019, repayable in an amount of R9 731.15 over a period of close to six (6) months.

1.2 Shortly after the loan was taken out by the Plaintiff, the Plaintiff was retrenched with effective date 31^st October 2019.

1.3 Although not adequately pleaded and with reference to the Plaintiff's statement, dated 21 September 2020 (page 8 of the pleadings), the Plaintiff was under the impression that she had credit insurance, indemnifying her in circumstances when retrenched.

1.4 It is common cause that the Plaintiff did not have such credit insurance.

1.5 The actual complaint, therefore, is that the Defendant failed to render a service to the Plaintiff, that is, failed to provide optional credit insurance and/or credit life insurance.

1.6 The Consumer Protector issued summons and was the matter initially enrolled for 20 November 2020. On the initial hearing date, the Defendant filed its special pleas and plea. The matter was postponed as to afford the Consumer Protector and the Consumer Court the opportunity to consider the defences advance therein.

1.7 The matter was again enrolled for 3 September 2021.

1.8 Submissions were made by both the Counsel for the Defendant and the Consumer Protector. The Councel for the Defendant was requested to file short Heads of Argument, which was received on 13 September 2021. The Heads of Argument was very helpful and is the Counsel for the Defendant thanked for her effort in this regard.

2. FIRST SPECIAL PLEA:

2.1 The first special plea, taken by the Defendant, was that the Consumer Affairs Court lacked the jurisdiction to entertain the matter at hand.

2.2 In argument, and in the Heads of Argument, Counsel for the Defendant, inter alia, referred to the definition of a "service" as found in Section 1 of the Consumer Protection Act, Act 68 of 2008 ("the CPA").

2.3 The CPA defines "service" as follows:

"Service includes but is not limited to - ...

(c) any banking services or related or similar financial services, or the underwriting or assumption of any risk by one person on behalf of another, except to the extent that any such service - ...

(ii) is regulated in terms of the Long-term Insurance Act, 1998 (Act 52 of 1998) or the Short-term Insurance Act, 1998 (Act 53 of 1998)."

2.4 The failure to provide optional credit insurance is therefore an insurance issue and therefore excluded in the CPA's definition of "service".

2.5 The First Special Plea should therefore succeed.

3. In the light of the aforementioned, it is unnecessary to deal with the Second Special Plea of the Defendant and the Defendant's Plea on the merits (Plea Over).

4. COSTS:

Insofar as this Court has a discretion as to costs, the circumstances relating to this matter does not warrant any cost orders.

5. ORDER:

5.1 The Defendant's First Special Plea is upheld and the Plaintiffs claim is dismissed.

5.2 No order as to costs.