South Africa: National Consumer Tribunal

You are here:
SAFLII >>
Databases >>
South Africa: National Consumer Tribunal >>
2013 >>
[2013] ZANCT 61
| Noteup
| LawCite
Mabuza v Nedbank Ltd (NCT/7143/2012/128(1)) [2013] ZANCT 61 (1 July 2013)
IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION
Case number: NCT/7143/2012/128(1) DATE:01/07/2013 In the matter between: HERBERT JOHANNES MABUZA...........................................................................Applicant and NEDBANK LIMITED...................................................................................................Respondent
Coram: P. Beck – Presiding member D. Terblanche – Member L Best – Member
Date of Hearing – 18 June 2013
JUDGMENT
APPLICANT
1. The Applicant in this matter is Herbert Johannes Mabuza, a major male person residing in Mamelodi West, Gauteng (“the Applicant”).
RESPONDENT
2. The Respondent is Nedbank Limited, a registered commercial bank duly incorporated in terms of the laws of the Republic of South Africa with principal place of business at Johannesburg, Gauteng (“the Respondent”). APPLICATION TYPE
3. This is an application purportedly in terms of section 128 of the National Credit Act, 34 of 2005 (hereinafter referred to as “the Act”) for the review of a sale of goods by a consumer who has allegedly unsuccessfully attempted to resolve the alleged disputed sale of the goods with a credit provider.
BACKGROUND
4. The Applicant filed the application and documents required in terms of Table 2 to the Rules1 (hereinafter referred to as “the Rules”). The background of the matter as derived from such documentation and the oral submissions made at the hearing is as follows:
4.1 The Respondent and Joy Rhenen Airconditions CC (“JRA”) entered into a written instalment sale agreement on 01 July 2005.
4.2 From a summons issued against JRA on 01 April 2008 the following appear with regard to the credit agreement (none of which were placed in dispute by the Applicant on the papers filed with the Tribunal):
4.2.1 The Respondent sold a used Toyota Tazz 130 (“the vehicle”) to JRA on 01 July 2005.
4.2.2 The purchase price was made up as follows: Total cash price.......................................R 70 134.21 VAT at 14%.............................................R 9 818.79 Licence & Registration..........................R 450.00 Sub Total..................................................R 80 403.00 Less initial payment …..........................R 7 400.00 Principal Debt.........................................R 73 003.00 Plus finance charges.............................R 18 860.18 Purchase price.......................................R 91 863.18
4.2.3 The purchase price was payable in 54 monthly instalments of R 1 701.17 each, the first payment to be made on 01 August 2005, and thereafter on the 01st day of each consecutive month, with the final instalment payable on 01 June 2009.
4.2.4 The vehicle was delivered to JRA and the initial payment and certain further instalments were paid.
4.3 The following expressed terms of the agreement, as summarised, are derived from the papers filed by the Applicant, and the credit agreement submitted to the Tribunal at the hearing:
4.3.1 The Respondent would, at all material times during the subsistence of the agreement, remain the owner of the vehicle.
4.3.2 Should JRA breach any of the terms of the agreement, or fail to pay any amount in terms of the agreement when it is due, the Respondent in the present matter will be entitled to, as he deems fit and without prejudice of any of its other rights, immediately request payment of all amounts that are payable in terms of the agreement, alternatively, to cancel the agreement, to repossess the vehicle, to retain all payments that have already been made and to claim as damages the difference between the outstanding balance and the resale value of the vehicle.
4.3.3 In the event of cancellation of the agreement, JRA would be obliged to return the vehicle to the Respondent.
4.3.4 The Respondent would be entitled, on request, to recover all costs and disbursements (including costs between attorney and client) that the Respondent incurred directly or indirectly in order to enforce any of its rights in terms of the said agreement from JRA.
4.3.5 A certificate by a manager of the Respondent (whose authority need not be proved) shall for all purposes be prima facie evidence of the matters/sums stated.
5. JRA failed to make payments as agreed and was in arrears in the amount of R 5 512.15 on 04 January 2008.
6. A notice in terms of Section 129(1)(a) of the Act was accordingly delivered to JRA on 05 January 2008.
7. The Respondent thereafter issued summons against JRA on 01 April 2008. The agreement was however terminated voluntarily on 29 April 2009 by JRA and the vehicle was handed over to the Respondent.
8. The vehicle appears to have been valued at R 7,000.00 (VAT exclusive) by Mr Clive Jonathan Lazarus on 29 April 2009. This appears from a letter by the Respondent addressed to JRA on 15 May 2009 in which it notified JRA of the above valuation and of its right to, within a period of 10 business days, unconditionally withdraw the notice to terminate the agreement and resume possession of the goods in terms of section 127(3).
9. On 05 March 2010 the Respondent addressed a letter to JRA confirming that the vehicle was sold on 03 March 2010.
10. On 5 March 2010 Respondent informed JRA –
10.1 Of the following valuations and amounts: 10.1.1 Valuation of goods R 7 000.00 10.1.2 Settlement value before sale R 27 880.30 10.1.3 Gross amount realised on sale R 28 500.00 10.1.4 Reasonable cost incurred for sale R 8 471.00 10.1.5 Net proceeds of sale R 25 000.00
10.2 That the net proceeds of the sale were insufficient to settle its liability in terms of the agreement and therefore demanded payment in the amount of R 5 186.18 within 10 days.
11. According to a statement of account dated 11 December 2011 which appears on page 5 of the paginated case file, the amount due and payable to the Respondent by JRA amounts to R 9366.60. No breakdown of the amount is provided and the amount is only indicated as “Toyota Tazz 130” and “Group Totals”.
APPLICANT’S SUBMISSIONS
12. The crisp issue that the Applicant is disputing is the difference in the amounts set out by the Respondent in the latter’s correspondence dated 5 March 2010 and statement dated 17 December 2011 i.e. “How did the amount for settlement change from R 5 186.18 in terms of the settlement dated 5/03/2010 to R 9360 in terms of the settlement dateted (sic) 17/12/2011.”
13. The Applicant furthermore submitted at the hearing that he suffered damages as a result of the Respondent’s conduct during the sale of the vehicle.
RESPONDENT’S SUBMISSIONS
14. The Respondent submits that:
14.1 There were prior legal proceedings between the parties in the Magistrate’s Court. During these proceedings the Respondent obtained Summary Judgment against the Applicant.
14.2 That an extensive period of time had lapsed before the vehicle was sold as a result of the Respondent having experienced difficulties in obtaining the necessary police clearance to have the vehicle transferred to its name.
14.3 The costs incurred in this matter were more than the norm due to the problems the Respondent faced in getting the vehicle into the dealer’s stock for the vehicle to be auctioned.
14.4 The vehicle was sold for more than it was valued and the Applicant was given credit for the difference between the valuation and the amount realised at the sale
14.5 That there was no breach of the Act by the Respondent that entitles the Applicant to compensation.
ISSUES TO BE CONSIDERED
15. Whether this is a matter that falls to be adjudicated and determined in terms of section 128 of the Act since the Applicant essentially seeks clarity on or an explanation of the difference in the settlement amounts claimed by Respondent on 5 January 2008 and 11 December 2011 respectively.
THE HEARING
16. During the course of the hearing of the matter, on request by the Tribunal, the following exhibits were handed up by the parties -
16.1 Applicant handed up: 16.1.1 Exhibit “A”: Letter dated 29 May 2009 from Applicant to Respondent 16.1.2 Exhibit “B”: Respondent’s estimated value of goods dated 15 May 2009 16.1.3 Exhibit “C”: Statement from Respondent dated 17 December 2011 16.1.4 Exhibit “D”: Notice in terms of Section 341 of Criminal Procedure’s Act dated 07 October 2008
16.2 Respondent handed up 16.2.1 Exhibit “E”: Handwritten breakdown of amount due 16.2.2 Exhibit “F”: Print of Nedcor Terminal Emulator dated 18 June 2013 16.2.3 Exhibit “G”: Registration Certificate of the vehicle
17. Both parties led evidence relating to their respective submissions as set out above.
APPLICATION OF THE LAW
18. Section 127 provides for a consumer to terminate a credit agreement and return the goods in terms of a credit agreement to the credit provider; for the credit provider to valuate the goods; inform the consumer of such valuation; providing the consumer with a notice of the valuation and an option to take the goods back should they not be satisfied with the valuation and provided the consumer is not in arrears.
19. Section 128 provides that –
“(1) A consumer who has unsuccessfully attempted to resolve a disputed sale of goods in terms of section 127 directly with the credit provider, or through alternative dispute resolution under Part A of Chapter 7, may apply to the Tribunal to review the sale.
(2) If the Tribunal considering an application in terms of this section is not satisfied that the credit provider sold the goods as soon as reasonably practicable, or for the best price reasonably obtainable, the Tribunal may order the credit provider to credit and pay to the consumer an additional amount exceeding the net proceeds of sale.”
20. It is clear from the papers that the Applicant made no submissions pertaining to a typical section 128 application, namely that the goods were not sold “…as soon as reasonably practicable, or for the best price reasonably obtainable”
21. The Applicant’s main complaint is that the Respondent provided him with different settlement amounts on different dates, for which he wants an explanation.
22. The Tribunal is of the view that the matter in effect concerns a disputed statement and stands to be adjudicated in terms of the relevant provisions of the Act dealing with disputed statements and is not an application in terms of section 128 of the Act.
23. The relief sought by the Applicant, specifically clarity on or an explanation of the difference in the outstanding amounts, falls outside the bounds of the relief provided for in section 128 of the Act, namely that “… the Tribunal may order the credit provider to credit and pay to the consumer an additional amount exceeding the net proceeds of sale”.
24. In the result the Tribunal finds that the Applicant has not made out a case for the Respondent to meet in terms of section 128 of the Act.
25. The Tribunal accordingly makes the following order -
25.1 That the Applicant’s application is dismissed; 25.2 No order is made as to costs.
Handed down at Centurion this 1st day of July 2013.
[signed] _______________________________ D. Terblanche Chairperson and Member
Ms P. Beck and Ms L. Best concurring 1 Rules for the Conduct of Matters before the National Consumer Tribunal published under GN789 in GG30225 of 28 August 2007 as amended by GenN428 in GG34405 OF 29 June 2011. |