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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/25253/2015/149(1)

In the matter between:

TRACY LEE ROSSI                                                                                                APPLICANT

and

WILLIE BREYTENBACH                                                                                  RESPONDENT

 

Coram:

Adv. John Simpson                     - Presiding Member

Prof. Joseph Maseko                  - Tribunal Member

Ms. Penny Beck                          - TribunalMember

Date of Hearing-21 October 2015

JUDGMENT AND REASONS

THEAPPLICANT

1. The Applicant in this matter is Miss Tracy Lee Rossi,an adult female based in Randfontein in the Gauteng Province ("the Applicant”).

2.. The Applicant is a consumer in terms of Section 1 of the National Credit Act 34 of 2005 (the "NCA" or the "Act").

3. Al the hearing of the 21st October 2015; the Applicant appeared in person, assisted by Mr. C.T. Claassen. THE RESPONDENT

4. The Respondent is Mr. Willie Breytenbach, a Debt Counsellor registered by the National Credit Regulator (NCR), with Registration Number NCRDC 1930, and based in Randfontein, Gauteng Province_("the Respondent"). The Respondent seems to trade as "Debt Solver."

5. At the hearing of 21s1October 2015, the Respondentwas represented by Mr Duane Voigt, an attorney.

TYPE OF APPLICATION

6. This application was lodged in terms of section 149(1) of the National Credit Act, 34 of 2005 (hereinafter referred to as "the Act"). But in Part C of the Form Tl.149 (1) completed by the Applicant, where she was required to state "the order sought from the Tribunal and the grounds for application" the Applicant merely repeated the ground for the application and did not disclose the relief sought. The ground indicated on page 3 of the case file were that:

"Mr. Willie Breytenbach did not provide adequate counselling to me. The result is that I now sit with a cascading home loan that I cannot afford. Mr. Willie Breytenbach has suspended his services with me and in tum I need to get SA Home Loans to take me off the cascading schedule."

7. On page 4 of the case file, the Applicant also adds how the said conduct by the Respondent frustrated the NCA, by stating that:

"Due to Mr. Willie Breytenbach (sic) lack of counselling I am now aware that I signed a new SA Home Loan agreement and two years later have been advised of a cascading method of payment with SA Home Loans. Debt review has not worked as I owe much more to creditors. I am not ever going to be in a position to pay the cascading amounts. " (Our own brackets)

8. Form Tl.149 (1) specifically guides applicants to approach the Tribunalfor an interim order.But as the said form stands on page 6 of the case file, it still did not disclose anv uraent relief sought. The Tribunal,elicited the relief sought from the Applicant at the hearing. The relief sought as revealed at this point consisted of:

(1)   An order compelling the Respondent to:

(a)     Pay (unquantified) damages caused by the Respondent to the Applicant for the SA Home Loans debt;

(b)     Pay (unquantified) costs resulting from credit providers taking the Applicant to court;

(2)   An interdict preventing other credit providers (not part of this case), from taking legalaction against the Applicant, pending completion of the NCR investigation.

JURISDICTION

9. The Tribunal has the jurisdiction to hear section 149 (NCA) applications. Section 149(1) provides that:

"At any time, whether or not a hearing has commenced into a complaint, a complainant may apply to the Tribunal for an interim order in respect of that complaint, and the Tribunal may grant such an order if-

(a) there isevidence that the a/legations may be true; and

(b)   an interim order is reasonably necessary to-

(i)     prevent serious, irreparable damage to that person; or

(ii)    prevent the purposes of this Act from being frustrated;

(c)     the respondent has been given a reasonable opportunity to be heard, having regard to the urgency of theproceedings; and

(d) The balance of convenience favours the granting of the order."

10. The relief sought in this application does not appear to neatly fall under the regulatory authority of section 149 of the Act. This conclusion is informed by the fact that:

(1)   The Applicant, in summary; seeks damages, costs, and an interdict against credi t providers who were not even joined i n the case. Damages are delictual in nature and should be claimed through a civil court. Section 164(3) (a)of the Act deals with civil actions andjurisdiction. The section provides that:

"A person who has suffered loss or damage as a result of prohibited conduct or dereliction of required conduct ... may not commence an action in a civil court for the assessment of the amount or awarding of damages if that person has consented to an award of damages in a consent order ..."

(2)   The prayer to have the Tribunalinterdict parties (credit providers) that are not part of the case and have not been cited nor served, would violate the rule of natural justice known as audi alteram partem (in which the Tribunalor court has to always hear the other side before taking any decision that would affect the interests of that side). In Moodlev v Minister of Education & Culture. House of Delegates 1989 (3) SA 221 (A) 235 C - 236 C ,the court held that the Rules of Natural Justice have to apply in all situations, except where specifically excluded by statute.

(3)     An interim order pending the investigation of the complaint lodged against the Respondent at the NCR, does not appear to be "reasonably necessary to-

(iii)  prevent serious, irreparable damage to that person; or

(iv)  Prevent the purposes of this Act from being frustrated."

11. The Tribunal had to consider upfront if the relief sought falls within its jurisdiction and whether the interim and urgency nature envisaged in section149 is present in the matter. These points had to be determi ned even before considering any evidence going to the merits of the case. Both these questions can only be answered in the negative.

12.. Ultimately, the Applicant is requesting the Tribunalto order the Debt Counsellor to pay her damages, based on the amounts a credit provider is charging on her home loan. The Tribunal is unable to even consider an i nterim order i n this regard unless these allegations are properly i nvestigated and ultimately brought   before  the Tribunal.

SALIENT OBSERVATIONS

13. Salient Observations in this application include that:

Both parties at the hearing, were, by their own admission, not familiar with the operations of the Act and its growing body of case law. This then required the Tribunal to approach the case in a more inquisitorial manner[1] as per Section 142(1)(a) of the Act, than would have been were the parties familiar with the legal requirements in such cases.This was informed by the doctrine of judicial notice of the law.Schwikkard[2] avers that:

"The law of evidence does to a limited extent allow a judicial officer to accept the truth of certain facts which are known to him even though no evidence was led to prove these facts. This process is known as judicial notice.·

RULING

14. Based on the salient observations and the jurisdictional discussion above, it is the ruling of this Tribunal that:

(1)   The application for an interim order compelling the items listed above as relief sought from the Tribunal, is hereby dismissed.

(2)   There is no order as to costs.

Thus done and handed down in Centurion this 24th Day of October 2015.

(Signed)

Prof. J. M.Maseko

TRIBUNAL  MEMBER

With Adv.John Simpson (Presiding Member) and Ms.P.Beck (Tribunal Member) concurring.

 

Authorised for issue b the National Consumer Tribunal

Case Number:  NCT    /25253/2015/149(1))

Date: 2015/11/06

CCYY  I MM            I DD

National Consumer Tribunal

Ground Floor,Building B

Lakefield Office Park,

272 West Avenue, Centurion 0157

www.thenct co.za

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