South Africa: National Consumer Tribunal Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: National Consumer Tribunal >> 2012 >> [2012] ZANCT 26

| Noteup | LawCite

Scheepers v Trust (NCT/4296/2012/114 (1)) [2012] ZANCT 26 (20 November 2012)

Download original files

PDF format

RTF format




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 CENTURION


Case No: NCT/4296/2012/114 (1)

DATE:20/11/2012


In the matter between:


SIMON SCHEEPERS …..................................................................................................APPLICANT


and


KOOS CILLIÉ TRUST.......................................................................................................RESPONDENT


CORAM:

Ms. Penelope Beck (Presiding)

Mr. Xolela May (Member)

Prof. Joseph M. Maseko (Member)


Date of Hearing: 9 November 2012



JUDGMENT AND REASONS



  1. THE PARTIES


1.1 The Applicant in this matter is Simon Scheepers, an adult male (ID Number: ….), with his physical address at Erf 460, Booyse Straat, Graslaagte, Humansdorp, 6300 (hereinafter referred to as “the Applicant”).


1.2 At the hearing of 9 November 2012, the Applicant was represented by Ms Anthea Van der Merwe who was acting (as a correspondent) on instructions of the instructing attorneys of the Applicant, namely Schoeman Oosthuizen Incorporated of Port Elizabeth.

1.3 The Respondent is Koos Cillié Trust, represented by HG Landman and EE Landman NNO, with its registered address situated at 39 Church Street, Humansdorp, 6300 (hereinafter “the Respondent”).


1.4 At the hearing of 9 November 2012, the Respondent was represented by Ms O. Kruger.


  1. THE APPLICATION


    1. The main application in this matter was made in terms of section 114 (1) of the National Credit Act, Act 34 of 2005 (“the NCA”). This section stipulates that where a credit provider has failed to furnish a statement of account on request by a consumer, the Tribunal may, on application, compel the production of such a statement.


    1. In its application, the Applicant seeks the Tribunal to order the Respondent to provide the Applicant with specific statements that the Applicant has requested from the Respondent and which the Respondent has failed or refused to deliver.


    1. The Applicant has also launched an application for a default order against the Respondent due to the Respondent’s failure to furnish the required statements and its failure to substantively oppose the main application (referred to in paragraph 2.1 above).


  1. CONDONATION APPLICATION


3.1 On its part, the Respondent had submitted a notice to the Tribunal (page 38 of the file papers), rather requesting (as opposed to applying) for condonation “... for the late filing of an Affidavit regarding the application in the ... matter”.


3.2 At the commencement of the hearing of 9 November 2012, both parties agreed that the question to be first determined by this Tribunal would be that of the condonation application (or request).


3.3And after hearing the facts surrounding the question of condonation this Tribunal made an ex tempore ruling dismissing the request for condonation from the Respondent. The reasons for this ruling were that:


3.3.1While the Respondent submitted a request for condonation of late filing of its opposing affidavit with the Tribunal on 24 May 2012; this request, had, however, not complied with Rule 34 of the Tribunal1.


    1. Even the legal representative of the Respondent had acknowledged that the Respondent, for whatever reason, had not lodged an application for condonation in accordance with the standards provided in Rule 34 of the Tribunal Rules (op cit).


    1. The net effect of the failure of the Respondent to lodge a proper application for condonation was that the Tribunal could not even entertain or consider an application for condonation because it was not properly before the Tribunal to be considered.


    1. It would be unfair to the Applicant, and therefore, irregular for the Tribunal to grant condonation when it (condonation) has not really been applied for in terms of Rule 34. Proper lodging of an application for condonation enables the other party to exercise its own legal and constitutional rights to respond to it before the Tribunal can then make a ruling. This is not possible where the intending party fails to actually lodge such an application even when it is apparent that this was the intention.


  1. JURISDICTIONAL PRE-REQUISITES


    1. The National Consumer Tribunal derives the authority to preside over this application by virtue of section 114 of the Act. This section stipulates that where a credit provider has failed to furnish a statement of account on request by a consumer, the Tribunal may, on application, compel the production of such a statement.


    1. Furthermore, Table 2 Part 1A of the NCA Regulations indicates that a section 114(1) application may be made directly to the Tribunal thereby giving the Tribunal the jurisdiction to deal with this application as a matter of first instance.


    1. In terms of the application for a default order, the Tribunal derives the necessary jurisdiction to decide on the outcome of such an application by virtue of Rule 25(2) of the Act.


  1. ISSUE TO BE DECIDED


5.1In the substantive aspect of this matter, the Applicant seeks the Tribunal to order the Respondent to provide the Applicant with specific statements that the Applicant has requested from the Respondent and which the Respondent has failed/refused to deliver.


5.2 The Applicant has also launched an application for a default order against the Respondent due to the Respondent’s failure to oppose the case of the Applicant.


5.3 The issues to be decided in the matter, are therefore:


5.3.1Whether this Tribunal should order the Respondent to provide the Applicant with specific statements that the Applicant has requested from the Respondent and which the Respondent has failed/refused to deliver.


5.3.2 Whether this Tribunal should grant a default order against the Respondent due to the Respondent’s failure to furnish the required statements to the Applicant.


5.4 In its quest to aid this Tribunal and further direct its attention to the content of the order desired, the Applicant had also filed a Draft or Default order for this Tribunal to make its own on this matter.


  1. BACKGROUND


6.1 According to the unopposed evidence of the Applicant, the background of this case is that:


    1. The parties entered into a credit agreement on the 24th of August 2007 for the lease of a Ford Bantam Bakkie at an agreed rate of R2,000.00 (two thousand rand) per month.


    1. Respondent had applied to the Magistrates Court for a declaratory order as to whether the agreement between the parties was a “credit agreement” subject to the NCA. After hearing the matter on 28 September 2011, the Magistrate concluded that the said agreement of lease is a credit agreement as provided for in the NCA, and is thus subject to the provisions of the Act.


    1. The Applicant lodged its Form TI.114 (1) application with the Tribunal on 19 April 2012 which is within the three year period after the conduct that is the cause of the complaint had occurred.


    1. There had been various requests for the required statements of account. And the last statement was due on 15 March 2012. The last statement contained in the file appeared to end with the balance as at June 2011.


    1. Proof on record shows that written requests for the statements were requested by the Applicant from the Respondent on:


  1. 29 September 2011;

  2. 13 October 2011;

  3. 02 November 2011, and

  4. 15 February 2012.


  1. THE LAW ON THE MATTER


7.1 Section 110 of the National Credit Act provides that:


(1) At the request of a consumer, a credit provider must deliver without charge to the consumer a statement of all or any of the following-

  1. the current balance of the consumer’s account;


(b) any amounts credited or debited during a period specified in the request;


(c) any amounts currently overdue and when each such amount became due; and


(d) any amount currently payable and the date it became due.


(2) A statement requested in terms of subsection (1) must be delivered-


  1. within 10 business days, if all the requested information relates to a period of one year or less before the request was made; or


(b) within 20 business days, if any of the requested information relates to a period of more than one year before the request was made.


(3) A statement under this section may be delivered


  1. orally, in person or by telephone; or


  1. in writing, either to the consumer in person or by sms, mail, fax, email or other electronic form of communication, to the extent that the credit provider is equipped to offer such facilities, as directed by the consumer when making the request...”


7.2 Default order applications are regulated in terms of Rule 25(2) of the NCA. This Rule relates to an application for a default order after a party failed to deliver a response within the requisite period. This application may be submitted at any time after expiry of the time period within which the party was required to deliver a response. And:


    1. The form to be submitted is Form TI.r25(2);


    1. Other documents required to be submitted are:


      1. a copy of the application delivered by the Applicant in the principal application;


      1. copies of all the documents which were required to be included in the principal application; and


      1. a copy of the order sought formulated as a draft order of the Tribunal


  1. ANALYSIS OF EVIDENCE AND ARGUMENTS


8.1 Before the Tribunal can make an order in this matter it must be satisfied that the matter relates to a statement of account that applies to a credit agreement. Therefore the Tribunal must establish that:


    1. The parties entered into a valid credit agreement to which the Act applies; and


    1. The dispute relates to a statement of account relevant to that credit agreement.


    1. And the question whether the parties had entered into a valid credit agreement, has already been answered in the declaratory order of the Magistrate alluded to above.


    1. Accordingly, the answer to the question whether the dispute relates to a statement of account relevant to the credit agreement in question is in the affirmative.


  1. CONCLUSION


9.1 Regarding the question whether this Tribunal should order the Respondent to provide the Applicant with specific statements that the Applicant has requested from the Respondent and which the Respondent has failed/refused to deliver, the answer is in the affirmative. This is based on the above unopposed statement of case as it has been presented by the Applicant.


9.2 Regarding the question whether this Tribunal should grant a default order against the Respondent due to the Respondent’s failure to oppose the case of the Applicant, again the answer is in the affirmative.


9.3 The Default Order drafted by the Applicant for this Tribunal to make its own on this matter has been contained on pages 49 and 50 of the case file. And in terms of this draft order, this Tribunal grants the prayers of the Applicant as shown below.


9.4 Rule 25(2) of the NCA (op cit) allows this Tribunal to grant a default order if no response to the application was filed within the time stated in the application. And it is proven in the evidence of the Applicant that no response to the application was filed within the time stated in the application.


  1. ORDER OF THE TRIBUNAL


10.1 In the result, the Respondent is hereby ordered to:


    1. Furnish the Applicant with a statement as contemplated in Section 110 read with Section 114 of the NCA. The reason for this order is that the Applicant is entitled to receive statements in respect of the credit agreement entered into under those sections.


    1. Furnish the above statements to the Applicant within 14 days of receiving this order.


10.2The Respondent is also warned that:


      1. In terms of section 152 of the NCA: “Any decision, judgment or order of the Tribunal may be served, executed and enforced as if it were an order of the High Court…”


      1. Failure to comply with an order of this Tribunal constitutes an offence in terms of section 160(1) of the Act.


      1. Section 161 of the Act provides that penalties could take the form of a fine or imprisonment ranging from one to 10 years as well as both fine and imprisonment.


      1. Section 162 of the NCA also empowers the Magistrate’s Court to impose the fines covered under section 161 of the Act.


Dated this 20th day of November 2012.


[signed]


Prof. Joseph Mandla Maseko

MEMBER


With Ms. Penelope Beck, Presiding Member and Mr. Xolela May, Member; Concurring.


1 As published in Regulations for Matters relating to the Functions of the Tribunal and Rules for the Conduct of Matters before the National Consumer Tribunal, 2007, published under GN 789 GHG 30225 of 28 August 2007 and as amended by GenN 428 in GG 34405 of 29 June 2011