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Mapeka v Firstrand Bank Limited (Wesbank) (NCT/14020/2014/141(1)) [2014] ZANCT 44 (11 November 2014)

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IN THE NATIONAL CONSUMER TRIBUNAL

Case No: NCT/14020/2014/141(1)


In the matter between:


SELLO STEPHEN MAPEKA...........................................................................................APPLICANT


and


FIRSTRAND BANK LIMITED (WESBANK)............................................................RESPONDENT

Coram:

Ms LA Best - Presiding member

Prof B Dumisa - Member

Adv J Simpson - Member


Date of Hearing – 10 October 2014


JUDGMENT AND REASONS


APPLICANT


1. The Applicant in this matter is Sello Stephen Mapeka, a male major residing in the Free State Province (hereinafter referred to as “the Applicant”).

2. At the hearing the Applicant appeared in person and did not have a legal representative.


RESPONDENT

3. The Respondent is FirstRand Bank Limited, a limited liability company duly registered in accordance with the company laws of South Africa, conducting business as Wesbank with divisional head-offices in Fairland, Johannesburg (hereinafter referred to as “the Respondent”).

4. At the hearing the Respondent was represented by an advocate of the Johannesburg Bar, Mr Hendrik van Nieuwenhuizen. He appeared on instructions from Roussouw Lesie Attorneys Incorporated.

 

APPLICATION TYPE

5. This is an application in terms of section 141(1)(b) of the National Credit Act, 34 of 2005 (hereinafter referred to as “the Act”) for leave from the National Consumer Tribunal (hereinafter referred to as “the Tribunal”) to refer the Applicant’s matter directly to the Tribunal. The Applicant is ultimately seeking a finding of prohibited conduct on the part of the Respondent, in order to obtain a certificate in terms of section 164(3) of the Act, which will enable him to proceed to the High Court to seek an award of damages..

BACKGROUND

6. The background to this matter was extensively summarised in the judgment of Professor Dumisa, dated 30 July 2014, when granting condonation to the Applicant. The background of the matter, as it appeared in the judgment, is quoted in full below as it sets out all processes undertaken prior to the current application before the Tribunal. The Condonation ruling was as follows:

Condonation Ruling Extract:

The facts of the case can be summarised as follows:

4.1 The Applicant entered into an instalment agreement with the Respondent for the purchase of a motor vehicle, Hyundai Elantra 1.6 GLS 2007 model, on 13 July 2007.

4.2 Due to a number of personal circumstances, the Applicant later failed to honour his car instalments, under the credit agreement he had with the Respondent.

4.3 On 1 July 2008, when the vehicle’s odometer reading was approximately 23 000 kilometres, the Applicant voluntarily returned the motor vehicle to the Respondent’s premises in Bethlehem “for storage” until his personal problems had been resolved; further indicating that “I am prepared to continue with the instalment as soon as the matter has been resolved”.

4.4 The Respondent sold the vehicle on auction on 25 September 2008 for R87 780 inclusive of VAT.

4.5 The Tribunal concluded that the Respondent sold the car without following the termination and  enforcement procedures set out in Part C, Chapter 6, of the National Credit Act, 34 of 2005 (the “Act”).

4.6 The Tribunal accordingly referred the matter of the sale of the vehicle to the National Credit Regulator (the “NCR”) for the latter to investigate whether there was compliance with section 129 and 130 of the Act; whether there was a prohibited conduct on the part of the Respondent; and to revert back to the Tribunal within 3 months with a report on its findings for the Tribunal to make a ruling.

4.7 The NCR submitted its report to the Tribunal during January 2010 in terms of which the Respondent indicated they were willing to write off any amount owing to them by the Applicant and that they would advise the credit bureau to clear any listing of the Applicant in respect of this Respondent’s account.

4.8 The Applicant purportedly accepted the Respondent’s offer by email on the 6th of May 2010; and the Respondent was informed accordingly on 7 May 2010.

The Tribunal confirmed that the NCR had concluded that the Respondent did not act in compliance with the Act when selling the car; but that the NCR had not referred a case of prohibited conduct to the Tribunal; which effectively meant that the Tribunal considered the matter as closed.

The Applicant thereafter approached the NCR for a Notice of Non-Referral, to which, on 18 December 2013, the NCR asserted “that the NCR is not required to refer the matter to the Tribunal and as such no such referral will be made”.

On the 17th of January 2014, the Tribunal finally made a formal ruling which effectively confirmed its earlier position that the Respondent did not act in compliance with the Act in selling the Applicant’s car. The Tribunal, however, decided yet again to send the matter back to the NCR for the latter “to decide whether to refer the matter to the Tribunal for a hearing into possible prohibited conduct or to issue a notice of non-referral to the Applicant, in accordance with the procedures set out in the Act; adding that “Should the National Credit Regulator issue a notice of non-referral, it will be the applicant’s prerogative to decide whether he wishes to pursue the matter any further.”

Subsequent to the Tribunal’s Ruling dated the 17th of January 2014, the NCR decided to issue a notice of non-referral, on the 3rd of March 2014, on the following grounds:

8.1 The conduct complained of, occurred more than three years ago, in 2008. Section 166 prohibits the referral of matters to the NCT after expiry of the three year period.

8.2 The NCR has already taken enforcement action by way of obtaining an undertaking from Wesbank to the effect that:

8.2.1 Wesbank shall in future abide with the termination and enforcement procedures set out in Part C, Chapter 6 of the National Credit Act;

8.2.2 Wesbank will write off the outstanding balance under the credit agreement; and

8.2.3 Will remove any adverse listing relating to the complainant with the credit bureaux.

8.2.4 The NCR concluded “Wesbank has implemented the undertaking in full and as such the matter is settled”.

8.3 The NCR further added: “The NCT has already heard the matter on the same set of facts under the case number NCT/29/2009/128(1)(P). Section 166(2) prohibits the referral of matters to the NCT where the Respondent has already appeared before the NCT on substantially the same conduct”. 

Subsequent to the issuing of the Notice of Non-referral by the NCR on the 3rd of March 2014, the Applicant approached the Tribunal. The Tribunal contended that the Applicant did not submit his application within 20 days of the date of the notice of non-referral; and that there was no affidavit reflecting why the Applicant was applying for a condonation application; and the Tribunal also raised other areas of non-compliance on the part of the Applicant. The Applicant then submitted a sworn affidavit stating that he did send all the required documents within the required 20 business days after the issue of the notice of non-referral by the NCR.

On 18 June 2014, the Tribunal finally issued the Notice of Complete Filing, in terms of Rule 34 of the Rules of the Tribunal for the Tribunal to consider condoning non-compliance with a Rule or Procedure.”

8. Important also to note is the Applicant’s emailed acceptance on 6 May 2010 to Mr Mark Whale of the NCR, of the Respondent’s settlement offer.  Specifically, the Applicant wrote as follows:

With regard to the matter referred to, please note that I accept the offer by Wesbank and agree to:

1. Have the amount outstanding in respect of this (the Applicant’s) account be written off.

2. My name (the Applicant) being cleared from the credit bureau in respect of this account.”

9. Subsequent to this, the Applicant instituted an action against the Respondent in the Johannesburg High Court (case number 21845/2011) claiming relief. The court granted absolution from the instance with each party to pay its own costs.

THE HEARING

10. The matter was set down for hearing at the offices of the Tribunal at 10h00 on 10 October 2014.

11. The Respondent had filed an Answering Affidavit, dated 8 October 2014, which was received by the Tribunal on 10 October 2014. The Chairperson of the Panel put it to the Respondent that this answering affidavit was filed out of time, in terms of the Rules of the Tribunal, and that should the Respondent wish the affidavit to be considered, the Respondent would need to apply for condonation for the late filing of the Answering Affidavit.

12. The Respondent submitted that it would not be applying for condonation at this stage and that the Respondent would proceed to only address the Tribunal. The Tribunal thus proceeded with the hearing of the matter without the Respondent’s Answering Affidavit being considered. .

13. With due consideration of section 142 (1) (a) and (c) of the Act, that:

The Tribunal must conduct its hearings in public –

(a) in an inquisitorial manner; and ….

(c) as informally as possible;

the Tribunal explained to the parties that the hearing would follow a two stage process, namely to firstly hear the parties in order to determine whether leave should be granted by the Tribunal and thereafter, if leave is granted, to then consider the merits of the matter. For the benefit of the Applicant, being unrepresented, the Tribunal explained to the parties the grounds for considering a leave application of this nature. Both parties then addressed the Tribunal.

APPLICANT’S SUBMISSIONS

14. It is the submission of the Applicant that the Tribunal should grant leave to hear the matter as the Applicant has been pursuing a series of actions with a view to gaining redress from the Respondent. Specifically,

14.1 The Tribunal issued a judgment in Case No. NCT/29/2009/128 (1) (P) on 5 November 2009, referring the matter to the NCR to investigate the Respondent, and to report back to the Tribunal in this respect;

14.2 The NCR inspector, Mr Mark Whale, issued a report on 26 January 2010, stating that “…in my view the non-compliance by Wesbank constitutes prohibited conduct as defined in the NCA.”;

14.3 The Tribunal issued a Ruling in case NCT/29/2009/128 (1) (P) on 17 January 2014 that “… Should the National Credit Regulator issue a notice of non-referral, it will be the Applicant’s prerogative to decide whether he wishes to pursue the matter any further”.

14.4 The NCR issued a Notice of Non-Referral in terms of s139 (1) (a) of the Act on 3 March 2014.

14.5 Correspondence from the Registrar of the Tribunal to the Applicant, dated 9 September 2013, states that:

There is no current referral of prohibited conduct before the Tribunal and the matter can only be escalated if such a referral is made, alternatively, if the National Credit Regulator issues a notice of non-referral in terms of s140(1)(a).

Until such a time as either one of those steps are taken and a referral is made to the Tribunal, the Tribunal would not be in any position to adjudicate on the allegations as there is no present case relating to the prohibited conduct before the Tribunal”.

The Applicant infers from this that now that the notice of non-referral has been issued by the NCR, and the Applicant has referred the matter to the Tribunal by virtue of the current application before the Tribunal, the Tribunal is in a position to adjudicate on the allegations.

14.6 The Judgment in the South Gauteng High Court of 1 August 2013 granting absolution indicates that the court did not make a final decision and thus the current application is not res judicata.

14.7 Taking the above into consideration, the Applicant is of the view that the matter has not prescribed and that the Tribunal can thus grant leave to hear the matter.

14.8 The Applicant’s prayer is that the Tribunal grants leave and further finds prohibited conduct on the part of the Respondent, as the basis on which the Applicant may pursue compensation via the courts for his “expenses, sufferings, inconveniences, as well as the pain and anguish, and dignity of standing”.

RESPONDENT’S SUBMISSIONS

15. The Respondent made submissions as follows:

15.1 The pre-requisites for compliance with section 141(1)(b) have not been met, as set out in the NCR’s basis for non-referral, namely:

a. The legislative prohibition of referral of a matter to the Tribunal in respect of conduct that occurred more than three years ago in terms of s166(1)(a) of the Act;

b. The fact that the dispute and conduct complained of was settled between the parties; and

c. The legislative prohibition of referral of matters to the Tribunal against the Respondent that has been the Respondent in proceedings under another section of the Act relating to substantially the same conduct, as occurred  in casu in case number NCT/29/2009/128(1)(P).

The Respondent thus argued the non-applicability of section 141(1)(b) of the Act.

15.2 The Respondent further argued that should the Tribunal not refuse leave based on the above, the Tribunal should refuse leave on the basis that that the matter has become prescribed in terms of section 166(1)(a), and upon leave being granted, any claim for damages would likewise have become prescribed in terms of section 11(d) of the Prescription Act, 68 of 1969.

15.3 The Respondent further argued that the matter is res judicata as the dispute was settled between the parties.

15.4 The Respondent submitted that the Applicant’s conduct and proceedings are vexatious as his claim(s) [or complaint(s)]:

15.4.1 Have already been dealt with by:

15.4.1.1  The Tribunal previously and thus may not be referred again as expressly precluded by section 166(2) of the Act;

15.4.1.2 The High Court, absolution from the instance having been granted in 1 August 2013;

15.4.2 Arose by no later than 23 September 2008, being more than 6 years ago and thus would have prescribed in terms of section 11(d) of the Prescription Act by no later than midnight on 23 September 2011;

15.4.3 Have been duly and properly settled in law.

16. The Respondent argued accordingly that leave should be refused with costs.

CONSIDERATION OF LEAVE

17. The two grounds on which the basis for leave were assessed and considered are[1]:

17.1 The importance of the case to the parties; and

17.2 The reasonable prospects of success.

18. In the instance of the former, it is clear from the history of the matter that the issue is of substantial importance to the Applicant. The Tribunal therefore accepts that this requirement has been satisfied.

19. In considering the reasonable prospects of success, the Tribunal places primary reliance on section 166(1)(a) of the Act, which states that:

A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after –

(a) the act or omission that is the cause of the complaint…”

20. It is trite that the cause of action arose in 2008 when the Respondent sold the Applicant’s car. In this regard the Tribunal found that: the Respondent sold the car without following the termination and  enforcement procedures set out in Part C, Chapter 6, of the National Credit Act, 34 of 2005 (the “Act”). As a means of rectifying this infringement, the Respondent offered a settlement which was accepted by the Applicant on 6 May 2010.

21. Section 166(1)(a) of the Act is very clear and does not allow any discretionary element. It places an absolute bar if the matter is older than three years. In the light of this, irrespective of whether any subsequent complaints were lodged in the meantime in different forums, as has been the case in this instance, the Tribunal is compelled by section 166 to evaluate what happened regarding the primary incident in 2008, which is clearly more than three years ago.

22. While the issue of the settlement reached between the parties in 2010 is not directly relevant to the application before the Tribunal, the Tribunal noted that while the NCR did issue a report stating that prohibited conduct had taken place, the NCR opted not to pursue it. Rather, it chose to pursue, and ultimately arrived at, an agreed settlement between the complainant (the Applicant) and the Respondent. During the hearing, the Applicant made the case that whilst he accepted the settlement, he did not believe that in doing so, this would prevent him from seeking compensation via the courts for his “expenses, sufferings, inconveniences, as well as the pain and anguish, and dignity of standing”. Although there was no application by the NCR to have this agreed settlement made a consent order by the Tribunal, the fact cannot be ignored that a settlement was patently agreed on. More particularly since it was on this basis the NCR decided not to pursue an application for a finding of prohibited conduct.

23. In light of the findings made regarding the prescription of the claim, the Tribunal does not regard it as necessary to deal with the other aspects raised by the parties.

Costs

24. The Respondent requested the Tribunal to make an order of costs against the Applicant in terms of section 147 of the Act.

25. Section 147 states the following –

(1) Subject to subsection (2), each party participating in a hearing must bear its own costs.

(2) If the Tribunal

(a) has not made a finding against a respondent, the member of the Tribunal presiding at a hearing may award costs to the respondent and against a complainant who referred the complaint in terms of section 141(1); or

(b) has made a finding against a respondent, the member of the Tribunal presiding at a hearing may award costs against the respondent and to a complainant who referred the complaint in terms of section 141(1).”

26. As a general rule, in accordance with section 147(1), the Tribunal does not ordinarily make an order that one party is to pay the other party’s costs. Section 147 does however specifically provide for a cost order that can be made in a section 141(1) application, which is the exact application that the Tribunal is dealing with. The Tribunal has not made a finding against the Respondent and an order can therefore be made against the Applicant in terms of section 147(2)(a).

27. The use of the word may in the section makes it clear that the Tribunal may make such an order but is not obliged to do so. The Tribunal will further not lightly make such an order unless the circumstances of the matter clearly justify such a punitive order. Especially so in a case where the Applicant is unrepresented. 

28. In the circumstances of this matter there is no clear indication before the Tribunal that the Applicant is being vexatious or frivolous in pursuing his claim. The Applicant appears to be pursuing the claim in good faith based on his genuine belief that he has the legal right to do so. The Tribunal is therefore unable to find that a cost order is justified in the circumstances.

RULING

29. Having considered the matter:

29.1 The Tribunal does not grant leave that the matter be referred; and

29.2 No order is made as to costs.


DATED THIS 11TH DAY OF NOVEMBER 2014


[signed}

Ms LA Best

Presiding member

Prof B Dumisa (Member) and Adv J Simpson (Member) concurring.




[1] Refer to MV Chauke v Standard Bank et al NCT/4658/2012/141(1)(P) and Coertze and Burger v Young  NCT/7142/2012/73(3)&75(1)(b) CPA.