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[2010] ZANCT 49
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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