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Olyn v African Bank Ltd and Others (NCT/286/2009/138(1) (P)) [2010] ZANCT 49 (6 May 2010)

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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 PRETORIA


CASE No: NCT/286/2009/138(1) (P)

DATE:06/05/2010


In the matter between

MARIA MAGDALEN OLYN............................................................Applicant /Consumer

and



AFRICAN BANK LIMITED............................................1st Respondent/ Credit Provider

CAPITEC BANK LIMITED............................................2nd Respondent/Credit Provider

NEDBANK LIMITED.....................................................3rd Respondent/Credit Provider


The application was facilitated by the debt counsellor Lorenco Lewis


JUDGMENT


1. INTRODUCTION

1. 1 The Applicant is a consumer who applied for debt review in terms of the National Credit Act 34 of 2005 (the Act). The debt counsellor representing the debtor is Lorenco Lewis. The Applicant is applying for a consent order in terms of section 86(8) read together with section 138 of the Act.

1.2 The debt counsellor found that the Applicant was experiencing difficulty satisfying all obligations under her credit agreements in a timely manner.

1.3 The debt counsellor recommended a restructuring of the payment instalments to all credit providers, as per the agreement which is attached hereto marked "Annexure A".

1.4 All the respective credit providers (Respondents to this consent order) consented to this agreement.


2. APPLICATION FOR CONSENT ORDER

2.1 The Applicant applied for a consent order on 9 December 2009. The Tribunal expressed concern regarding the interest rate which Capitec Bank Limited (a Respondent) was charging the Applicant in the consent order. The matter was adjourned in order for the Tribunal to subpoena the contracts which the Applicant concluded with Capitec Bank.

2.2 The matter commenced again on 21 April 2010. The Tribunal had relevant contracts from Capitec Bank.


3. THE CAPITEC BANK CONTRACTS

The Applicant received two loans from the Bank which are relevant to this matter. The first loan was granted on 31 August 2007 (loan number 1156013818) and the second loan was granted on 28 November 2007 (loan number 1161336980). The loan repayment periods were 18 months and 24 months.


4. THE CONSENT AGREEMENT

The consent agreement attached to the application for a consent order indicates that the Applicant owes Capitec Bank R1189.81 in respect of the first loan and R2744.16 in respect of the second loan. The Applicant has agreed to pay interest in respect of the first loan of 37% per annum and interest of 29.5% per annum in respect of the second loan. The debt counsellor representing the Applicant has indicated that Capitec Bank will not agree to a lesser amount of interest on the first loan and that the Applicant is at present repaying the loan at an interest rate of 37%.


5. CONSIDERATION

The loan granted to the Applicant in terms of the contract (which is the subject of this consent order) concluded between the Applicant and Capitec Bank constitutes an unsecured credit transaction. When such a loan is granted, credit grantors are entitled to charge maximum rates of interest according to the formula for such loans as set out in Regulation 42 Table A. The legislature has expressed the maximum interest rate which may be charged as a formula rather than as a fixed rate. This means that when the Reserve Bank Repurchase Rate (repo rate) is reduced, credit grantors are obliged to reduce the interest which they are charging particular consumers, if the rates are higher than the maximum amount as allowed in terms of the Regulation. A calculation, based on the applicable formula, indicates that the maximum amount of interest which the credit grantor can charge at the present time is 35.4%. The interest set out in the consent agreement is in excess of this amount.


6. CONCLUSION

The application for a consent order is refused and the Tribunal makes the following order:


The matter is referred to the National Credit Regulator in order to investigate whether there is prohibited conduct on the part of Capitec Bank. The Regulator is requested to report back to the Tribunal within a period of one month from the date of this judgment regarding its findings.



Professor T WOKER


Handed down on this 6 day of May 2010





IN THE NATIONAL CONSUMER TRIBUNAL
HELD AT CENTURION

Case No:

In the matter between:


MARIA MAGDALENA OLYN............................................CONSUMER/lst APPLICANT

Identity number: ...


And

AFRICAN BANK LIMTED...............................1st RESPONDENT/CREDIT PROVIDER

CAPITEC BANK LIMITED.............................2nd RESPONDENT/CREDIT PROVIDER

NEDBANK LIMITED.......................................3rd RESPONDENT/CREDIT PROVIDER


DRAFT CONSENT ORDER IN TERMS OF SECTION 86{8) READ TOGETHER WITH SECTION 138 OF THE NATIONAL CREDIT ACT 34 OF 2005



WHEREAS:


a. The consumer applied for debt review in terms of the National Credit Act 43 of 2005;


b. The debt counsellor found that the consumer is experiencing difficulty satisfying all obligations under the credit agreements in a timely manner;


c. The debt counsellor recommended a restructuring of the payment instalments to all the credit providers, as per the agreement which is attached hereto marked:

"Annexure B";

d. Ali the respective credit providers and the consumer/applicant consented to this agreement, which consents are hereto attached marked "Annexure C"


NOW THEREFORE:


The Tribunal, being satisfied that the Applicant and Respondent are parties to a debt rearrangement facilitated by a debt counsellor under section 86(7} of National Credit Act, hereby orders, by consent of the parties:

1. That the payment structures of the agreement between the Applicant and the Respondents as set out in Annexure "B", be made an order of the National Consumer Tribunal;

2. Which agreement restructures the payment instalment by extending the payment period as indicated in Annexure "C"


Creditor

Reference

Annual Interest

New

Monthly

Instalment

Balance

Estimated Period in Months

AFRICAN BANK UMTED

3668629003

10.00%

R381.80

R12 119.72

31

CAPITEC BANK LIMITED

1161336980

29.50%

R165.74

Rl 150.49

13

CAPITEC BANK LIMITED

1156013818

37.00%

R255.25

R2 514.13

17

NEDBANK LIMITED

4829375000201

14.00%

R337.21

R21 368.71

43



DATED at Centurion this the day of 2009


Registrar of the National Consumer Tribunal



Applicant/Consumer

Debt Counsellor on behalf of the Consumer



TO:


THE REGISTRAR OF THE TRIBUNAL CENTURION

1. AFRICAN BANK LIMITED 59

16TH ROAD

MIDRAND

1685


2. CAPITEC BANK LIMITED

PO BOX 12451

DIE BOORD

STELLENBOSCH

7613

3. NEDBANK LIMITED
100 MAIN STREET
JOHANNESBURG
2000