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IN THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION

CASE NUMBER: NCT/2135/2011/65(5) (P)

DATE:14/11/2011

IN THE MATTER BETWEEN:

ALDES FINANCE (PTY) LTD...................................................................................APPLICANT

AND

THE NATIONAL CREDIT REGULATOR.............................................................RESPONDENT

JUDGEMENT AND REASONS

1. The Applicant is ALDES FINANCE (PTY) LTD (hereinafter referred to as ALDES or the Applicant), a credit provider registered as such under the National Credit Act, Act 34 of 2005 ("the Act"). Mr. Van Greunen represented Applicant.

2. The Respondent is the National Credit Regulator (hereinafter referred to as the Regulator or the Respondent) established in terms of s12 of the Act with functions as prescribed in s15 of the Act. Ms Nurunisa Soobrayan represented the Respondent.

3. This is an application in terms of section 63(5) of the National Credit Act, Act 34 of 2005, (hereinafter referred to as "the Act"), to review the rejection of a language proposal and for an order to set aside a decision of the Regulator in respect of a language proposal.

4. The Applicant seeks to challenge the Regulators requirement for a fresh language proposal on three main grounds -

a. Applicant does not grant credit and is therefore not required to produce Pre-agreements and quotations or to deliver documents prescribed.

b. Applicant submitted that it neither have knowledge of nor understands an African language and have not received any enquiring or requesting assistance in an African language

c. Applicant submitted that it does not have the resources to assist clients with documents in four different languages.

5. The Respondent opposed the application on two grounds -

a. That the application for review is premature as the Respondent has not yet made a decision with regards to the language policy proposal and has merely requested the Applicant to submit a fresh language policy proposal;
and

b. Consumers are prejudiced by Applicant's refusal to implement the language policy as proposed by the Respondent, which proposal would ensure a consumer receives any document required in terms of the Act in an official language that the consumer reads or understands.

6. The Respondent submitted at the hearing that in as much as the Respondent opposed the application on two grounds, the Respondent chooses not to persists with the point that the hearing of the application was premature. The Tribunal therefore makes no finding with regard to this point.

7. Section 63(1) provides that "A consumer has a right to receive any document that is required in terms of this Act in an official language that the consumer reads or understands, to the extent that is reasonable having regards to usage, practicality, expense, regional circumstances and the balance of the need and preferences of the population ordinarily served by the person required to deliver that document.''

8. Section 63 (2)(a) provides that" If the producer of a document that is required to be delivered to a consumer in terms of this 'Act or is required to be a registrant, that person must make a submission to the National credit Regulator proposing to make such documents available in at least two of the official languages"

9. Applicant proposed two languages, English and Afrikaans, in respect of their documentation - Pre-agreement statement and Proposal, Credit agreement, Enforcement Notices, Marketing and Advertising, and for Call Centre and Branch Staff during September 2010. The Regulator acknowledged receipt of this proposal on 27 March 2011.

10. The Respondent in response to the proposal required Applicant to submit a fresh proposal principally requiring of it to expand its proposal to include two further languages being one from the Nguni and one from the Sotho group of languages, beyond the English and Afrikaans already proposed.

11. It is common cause that -

a. The Applicant is registered as credit provider with the Respondent under registration number 4106

b. Due to the Applicants registration as a credit provider there is no legal impediment to it issuing loans at any time that it so chooses.

12. From Applicants submissions it emerged that Applicant, from date of registration as credit provider with the Respondent to date of the hearing -

a. Declared a R0 loan book to the Respondent upon application for registration

b. Does not itself issue loans

c. Is the only point of interaction with the consumer in relation to the loan documentation

d. Does not offer consumers a choice of language

e. Does not know which proportion of its client base would potentially require languages other a that what is offered by Applicant

f. Operates at a national level

g. Focuses on intermediating for loans for previously disadvantages individuals

13. We have considered Applicant's contentions that it does not itself extend credit and has a zero rand loan book in the light of its contentions that as a result it does not have to meet the obligations to consumer rights contained in section 63)(1). In terms of the section the obligation attaches to the person required to deliver the document; or the producer of the document; or a person required to be a registrant.

14. Applicant could not provide information of its consumers' profile in respect of language but did indicate that it operates mainly in the arena of facilitating credit for previous disadvantaged persons and that it operates nationally. From that we come to the conclusion that it is likely that Applicant could have consumers who would require documents beyond English and Afrikaans and that Applicant therefore should be required to implement additional languages incrementally as required by the Regulator.

15. In assessing this application we considered the provisions of section 63(1) regarding the consumers right to receive documentation in an official language that the consumer reads or understands, to the extent that is reasonable having regard to -

a. Usage,

b. Practicality,

c. Expense,

d. Regional circumstances, and

e. The balance of the need and preferences of the population ordinarily served

16. Practicality - We noted Applicant's view that it does not speak or understand any other language beyond English and Afrikaans. This in our view is neither an adequate reason nor a barrier for the Applicant not to make the required documents available in the additional languages as required over time.

17. Expense - We noted that the documents are available from the Respondent which would largely reduce the expense, if any to the Applicant, in order to comply with the Act. Accordingly, the Tribunal is of the view that the Applicant has not persuaded the Tribunal on the aspect that the expense of providing the documents in additional languages is too onerous a task to undertake.

18. Usage and regional circumstances - The Applicant did not lead any evidence of its client profile upon which the Tribunal can rely on, either documentary or otherwise, to persuade the Tribunal that usage in the Applicant's area of operation supports the Applicants decision to limit its documents available to consumers in two languages only.

19. The balance of the need and preferences of the population ordinarily served -Applicant indicated that its' business focus is on previously disadvantaged individuals. From that one would infer that these individuals would be other than Afrikaans and English speaking. According to the geographic reach the Applicant attested to at the hearing it also seems that the usage of its consumers would require a Nguni and Sotho language to ensure their rights in terms of the Act are safeguarded and that the Applicant complies with the Act.

20. We therefore conclude that the proposal by the Regulator is reasonable having regard to usage, practicality, expense, regional circumstances and the balance of the need and preferences of the population ordinarily served.

21. Accordingly we therefore make the following order:

a. Applicant's application is dismissed

b. No order as to costs is made.

Dated at Centurion this 14^th day of November 2011

Ms P Beck (Presiding Member) and Ms L Best concurring.

Authorised for issue by the National Consumer Tribunal

Case number:NCT/2135/2011/65(5) (P)

2011/11/14

Coyy / mm / dd'

National Consumer Tribunal

Ground Floor Building B

Lakefield Office Park.

272 West Avenue Centurion 0157

www.thenct.org.za

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