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[2014] ZANCT 37
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Du Plessis v JDG Trading (Pty) Limited and Others (NCT/14494/2014/148(1)(P) NCA) [2014] ZANCT 37 (8 September 2014)
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IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
Case number: NCT/14494/2014/148(1)(P) NCA
In the matter between:
HANS REINHARD PETTENBURGER-PERWALD......................................................APPELLANT
OBO JACO DU PLESSIS (ID NO: 8[…])
AND TALANA ANNETTE DU PLESSIS (ID NO: 7[…])
and
JDG TRADING (PTY) LIMITED......................................................................FIRST RESPONDENT
FOSCHINI RETAIL GROUP (PTY) LIMITED.........................................SECOND RESPONDENT
MASSMART HOLDINGS LIMITED..............................................................THIRD RESPONDENT
NEDBANK LIMITED....................................................................................FOURTH RESPONDENT
MR PRICE GROUP LIMITED.........................................................................FIFTH RESPONDENT
WESBANK A DIVISION OF FIRST RAND BANK LIMITED....................SIXTH RESPONDENT
WOOLWORTHS (PTY) LIMITED............................................................SEVENTH RESPONDENT
Coram:
Adv J Simpson – Presiding Member
Ms L Best – Panel Member
Ms H Devraj – Panel Member
Date of Hearing – 25 August 2014
JUDGMENT AND REASONS
APPELLANT
1. The Appellant is Hans Reinhard Pettenburger-Perwald, a major male registered as a debt counsellor in terms of the National Credit Act 34 of 2005 (“the Act”) with registration number NRDC49 (hereinafter referred to as “the Appellant”). The Appellant lodged the appeal on behalf of Jaco Du Plessis, a major male and Talana Annette Du Plessis a major female (hereinafter referred to as “Mr J Du Plessis and Ms TA Du Plessis”).
2. At the hearing of the appeal, an employee of the Appellant, Mr Rynhard De Lange (hereinafter referred to as “Mr De Lange”), appeared on behalf of the Appellant via Skype video and audio transmission.
RESPONDENTS
3. The Respondents are JDG Trading (Pty) Limited, Foschini Retail Group (Pty) Limited, Massmart Holdings Limited; Nedbank Limited, Mr Price Group Limited, Wesbank a Division of First Rand Bank Limited and Woolworths (Pty) Limited (hereinafter referred to as “the Respondents”).
4. At the hearing of the matter there was no appearance by any of the Respondents or any representative on their behalf.
APPEAL
5. The Appellant brought an appeal in terms of Section 148(1) of the Act, against a decision of a single member.
6. The appeal was heard on 25 August 2014 by a full panel of the Tribunal.
JURISDICTION
7. The Tribunal has jurisdiction to hear this matter in terms of Section 148 of the Act in that a party may appeal a decision by a single member to a full panel of the Tribunal.
BACKGROUND
8. On 21 November 2013 the Appellant applied to the Tribunal for a debt re-arrangement agreement to be confirmed as an order of the Tribunal in terms of Section 138 of the Act, under case number NCT/12009/2013/138(1)(P).
9. On 02 March 2014, the debt re-arrangement agreement application was considered by a single member, Professor T Woker, who then refused to grant the application. The order was refused and the reason provided by the Tribunal Member was that “The consumers are overindebted”.
10. According to the appeal that was filed by the Appellant, the grounds for appeal were on the basis that the reason provided by the Tribunal Member was not sufficient in the refusal of the order.
THE HEARING
11. The Tribunal informed Mr De Lange that Professor Woker had provided additional reasons for the refusal but noted that these reasons, dated 02 March 2014, were not issued to the parties.
12. The further reasons stated by Professor Woker, which were read to Mr De Lange at the hearing, were as follows :
“Consumers are over-indebted. According to the documents which have been submitted to the Tribunal, the consumers need in the region of R7000 per month in order to satisfy their monthly repayments. The income and expenditure statements submitted to the Tribunal indicates that the consumers only have R6384.00 per month for distribution to settle the debts, hence the consumers are over-indebted. The matter must be referred to the Magistrate’s court for debt re-arrangement.”
13. Mr De Lange, in his submission, referred the Tribunal to the document named “Income and Expenditure” which is the assessment of the consumer’s income and expenditure and which was submitted in the original application. He submitted that the document reflects the gross income of both the consumers as well as all the statutory deductions and the nett income. Mr De Lange further stated that the disposable income less all the household and other expenses results in the final “Available amount” that the consumers have available to pay towards the debt on a monthly basis. Based on this the consumers therefore have R8000 as the “Available amount” every month to pay all the credit providers and not R6384.35.
14. Mr De Lange submitted that the amount of R6384.35 is named by the system that is used by the Debt Counsellor as the “Net debt affordability for distribution to settle debt” and that this amount is used as a breakdown to show the consumers how the funds are being utilised on a monthly basis. From the Income and Expenditure schedule it would appear that the “Net debt affordability for distribution to settle debts” is the amount arrived at after the credit agreement linked insurances have been deducted.
CONSIDERATION OF THE EVIDENCE
15. Based on the evidence before the Tribunal, the Tribunal can fully understand why Professor Woker refused the application based on affordability. Based on the description in the document of the amount of R6384.35 as being the “Nett debt affordability for distribution to settle debts”, Mr J Du Plessis and Ms TA Du Plessis were not in a position to pay the total monthly commitment as per the draft consent order.
16. The Tribunal acknowledges Mr De Lange’s submissions regarding the “Available amount” and the amount allowed for possible insurance premiums which is the “Net debt affordability for distribution to settle debts”. However, it appears that the Appellant is expecting the Tribunal to decipher and interpret the consumer’s income assessment to try and find a basis for affordability.
17. While the Tribunal is not specifically required by the Act to assess the consumer’s income and expenditure when considering an application to confirm a debt re-arrangement agreement as an order of the Tribunal, there is nothing preventing the Tribunal from doing so in the interest of confirming that the consumer can afford the agreed repayments. Once a debt re-arrangement agreement is confirmed as an order of the Tribunal it has serious implications for the parties involved. In terms of Section 160 of the Act a person commits an offence if they contravene or fail to comply with an order of the Tribunal. In this instance the information submitted by the Appellant indicated that the consumer could not afford the repayments.
18. The Presiding member who considers these applications cannot reasonably be expected to infer that certain of the amounts in the financial assessment correctly reflect the consumer’s position and others not. It is further not reasonable to expect of the Presiding member to make an assumption regarding whether or not the insurance premiums are already included in the repayments. For the Presiding Member to make an informed decision, the information presented must be clear and unambiguous.
19. To avoid a situation such as this, it is strongly suggested that the debt counsellor in future, firstly only submit one document that reflects the income and expenditure assessment of the consumer and that this document must clearly state one amount that the Tribunal member must consider in making a determination on affordability.
CONCLUSION
20. The Tribunal does not find any basis for setting aside the refusal of the application and substituting it with a new order.
21. It must however be noted that it would not be reasonable to deprive the consumers of the opportunity to lodge a new application, should Mr J Du Plessis’ and Ms TA Du Plessis’ financial information be properly presented and they are in a position to afford the agreed repayments.
ORDER
Accordingly, the Tribunal makes the following order:
22. The appeal against the refusal of the application by Prof T Woker fails.
23. The Appellant is at liberty to lodge an entirely new application to have the debt re-arrangement agreement confirmed as an order of the Tribunal, should Mr J Du Plessis’ and Ms TA Du Plessis’ financial information included in the new application clearly confirm that they can afford the repayments agreed to.
24. No order is made as to costs.
DATED ON THIS 08th DAY OF SEPTEMBER 2014
[signed]
Ms H Devraj
Member
Adv J Simpson (Presiding Member) and Ms L Best (Member) concurring.