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[2013] ZANCT 29
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Koopman v Holiday Access and Another (NCT/4722/2012/114(1)(P) NCA) [2013] ZANCT 29 (20 September 2013)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case number: NCT/4722/2012/114(1)(P) NCA
DATE:20/09/2013
In the matter between:
ARNO CHRIS KOOPMAN....................................................................................................APPLICANT
and
HOLIDAY ACCESS.....................................................................................................1ST RESPONDENT
THE NATIONAL CONSUMER COMMISSION …........................................................... 2ND RESPONDENT
Coram:
Adv FK Manamela – Presiding member
Prof B C Dumisa – Member
Mr F Sibanda – Member
Date of Hearing: 26 March 2013
JUDGMENT AND REASONS
THE PARTIES
1. The Applicant in this matter is Arno Chris Koopman, an adult male person residing in the province of the Western Cape (“the Applicant”).
2. The First Respondent is Holiday Access, a leisure club management company trading as such and registered in terms of the company laws of the Republic of South Africa (“Holiday Access”)
3. The Second Respondent is the National Consumer Commission, an organ of state within the public administration established in terms of Section 85 of the Consumer Protection Act 68 of 2008 (“the Commission”).
4. The Applicant represented himself at the hearing.
5. Neither of the Respondents appeared at the hearing.
APPLICATION TYPE AND JURISDICTION
6. Firstly, this is an application to the National Consumer Tribunal (“the Tribunal”) in terms of section 114 of the National Credit Act, 34 of 2005 (the Act or the NCA) to compel the production of a statement.
7. The application must be filed in accordance with the Tribunal rules. According to the papers before the Tribunal, it does not appear that the application is in accordance with the rules, notwithstanding the fact that the Registrar issued a notice of complete filing. Part B of the Form T.I 114(1): “Details of the credit provider required to produce the statement” is not completed.
8. Whether or not the First Respondent received the application as required by the rules, is uncertain. The Applicant did not attach a copy of proof of service to the parties as required by Rule 30 of the Tribunal Rules. It is also uncertain whether or not a request to produce a statement was made, as there was no copy of a written request to the First Respondent provided to the Tribunal. However the Applicant has deposed to an affidavit dated 27 June 2012, stating that he has on four occasions asked Holiday Access to furnish him with the contract he signed, without success. There is no mention of the statements.
9. Secondly, the Applicant completed Form TI.r25(2), requesting the Tribunal to hear this application on a default basis. Part C of this application is incomplete. There is no proof of the documents filed in the principal matter, and no draft default order is attached.
10. This Tribunal, notwithstanding the aforegoing, has jurisdiction to hear this matter.
BACKGROUND
The Applicant had initially lodged a complaint with the Commission on or about May 2012 complaining about the contract he had entered into with Holiday Access. The Applicant alleges to have paid the amount of R6,500.00 as membership fees to Holiday Access in order to secure bookings for future holiday destinations with certain enlisted hotels and/or resorts in the country, and also undertake ship cruises and trips abroad.
12. It appears that the Commission did not respond to the Applicant’s query. He then lodged the complaint with HelloPeter.com and subsequently with LegalWise.
13.The applicant claims LegalWise then referred him to the Tribunal.
14. In his complaint to these entities, the Applicant indicates that he requires that the contract with Holiday Access must be cancelled and his money refunded.
15. The Applicant alleges Holiday Access reneged in its promises to provide him with accommodation for the period for which he had booked.
16. The Tribunal has had no sight of the contract as same was not provided by the Applicant.
17. The Applicant alleges that the response he received from Holiday Access when demanding cancellation of the agreement was that cancellation is not an option.
THE HEARING
APPLICANT’S SUBMISSIONS
The proceedings were conducted by telephone conference at the Tribunal premises, with the Applicant in attendance. Both the Commission and Holiday Access did not make any representations, nor submitted any documents in response to the Applicant’s application. In his submission, the Applicant stated the following:
18.1 When he decided to make a booking for his parents for a two night weekend stay in Cape Town, he was quoted between R1700.00 and R2200.00;
18.2 According to the presentation that he had attended, he would pay between R65.00 and R100.00;
18.3 Upon further enquiry he was told that the amount of R2000.00 of the R6500.00 initially paid was for other costs and not necessarily part of the package;
18.4 The sales representative explained to him that each year he would be allocated 5500 points, entitling him to visit national places alternatively, to undertake eight ship cruises or two international trips.
18.5 He consulted with his lawyers at LegalWise who advised him to cancel the contract;
18.6 When the Tribunal further probed whether his application was for the production of a statement or an order to cancel the agreement, the Applicant responded by saying that, he decided that he was not going to cancel, but would raise concerns with Holiday Access through HelloPeter.com and his lawyers. The Applicant conceded that he was tied up to a three year contract with a monthly debit order of R500.00 and that it was too late for him to cancel the contract;
18.7 The Tribunal further enquired whether or not the issue of cancellation was out of the question, to which enquiry the Applicant responded in the affirmative, as he was of the view that it was too late to cancel the agreement at the stage of bringing the application;
18.8 The Tribunal then turned to the issue at hand, being the application to compel the production of a statement in terms of section 114 of the Act. Reference was made to the email correspondence dated 27 June 2012 sent by the Applicant to the Registry department of the Tribunal. In that email the Applicant confirms having received the account statement from Holiday Access, and also thanks the recipients for assisting him. The email addressed to Shimi Nkoane and Sibusiso Nyathi, employees of the Tribunal, reads as follows:
“Please find attached the requested documents, I have however managed to get an account statement from Holiday Access, the other is the affidavit regarding the contract that ….. Please keep me updated and thank you very much for your assistance.
Kind Regards
Arno Koopman”
18.9 The Applicant conceded that he was the writer of the correspondence. In the bundle of documents before the Tribunal there were also statements of account alluded to above, confirming that they were the ones the Applicant had referred to in the email of the said date. The Applicant seemed to be not too sure in his response.
APPLICABLE SECTIONS OF THE NATIONAL CREDIT ACT
19. Section 114 of the Act provides the following:
“114 Tribunal may order statement to be provided
If a statement is not offered or delivered within the time required by this Part, the Tribunal, on application by the consumer, may-
a) order the credit provider to provide the statement, or
b) determine the amounts in relation to which the statement was sought.”
ISSUES TO BE DECIDED
Preliminary issues
20. Whether the Tribunal should proceed to hear this matter on a default basis, considering that the Respondents did not attend the hearing.
21. Whether the Tribunal will be in a position to consider the application and make a determination, on the basis that it appears from the information filed that the Applicant has since received the statements it wished to compel;
DETERMINATION
22. Rule 24(1) of the Tribunal Rules1 allows the presiding member to proceed with a hearing in the absence of a party. In order to proceed as such, the presiding member must be satisfied that the absent party received adequate notice of the hearing of the matter.2
23. The Tribunal was satisfied that both Respondents received adequate notice to attend to the hearing on 26 March 2013, as the notice of set down was forwarded to all parties on 11 March 2013 by the Registrar’s Office.
24. The presiding member therefore elected to proceed with the hearing of this matter in the absence of the Respondents.
25. The Tribunal must then consider whether it would be in a position to grant the relief as requested by the Applicant.
26. The Applicant confirmed in his correspondence of 27 June 2012, that he has received statements from Holiday Access prior to the hearing of this application.
27. The Applicant’s application to compel Holiday Access to produce statements therefore has no merit as the Applicant already received the relief to which it would be entitled to in terms of this application.
28. Based on the above conclusion, it is not necessary for the Tribunal to consider whether or not Section 114 of the NCA would find application in this matter and specifically whether or not the agreement entered into by and between the parties constitute a credit agreement.3
ORDER
29. Based on the reasoning as set out above, the Tribunal consequently makes the following order:
29.1 The application is dismissed; and
29.2 There is no order as to costs.
DATED THIS 20th DAY OF September 2013
__________________
Adv FK Manamela
Presiding Member
Prof Bonke Dumisa (Member) and Mr FK Sibanda (Member) concurring
1 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 in GG 30225 of 28 august 2007 as amended by GenN 428 in GG 34405 of 29 June 2011.
2 Rule 24(2) of the Rules
3 In the matter of Sampson v COCCH, NCT/1487/2011/115 (1)(P) the Tribunal found that in order for section 115 of the NCA to apply to a matter, the Tribunal must be satisfied that the matter relates to a statement of account that applies to a credit agreement. Similarly for a Section 114 application the statement requested must relate to a credit agreement between the parties.