SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
IN THE NATIONAL CONSUMER TRIBUNAL HELD IN CENTURION

Case number: NCT/34844/2015/149(1)

In the matter between:

SANZA KAYOLA	-	APPLICANT

and

ALLIED CAPITAL (PTY) LTD	-	RESPONDENT

Coram:

Adv. F. Manamela – Presiding Member Prof. Joseph Maseko – Tribunal Member Ms. Penelope Beck – Presiding Member

Date of Hearing – 18 December 2015 Date of Judgment – 22 December 2015

JUDGMENT AND REASONS FOR JUDGMENT

THE APPLICANT

1.	The Applicant in this matter is Mr. Sanza Kayola, an adult male with his principal place of business at Sandton View Buccleuch 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”) (also referred to hereinafter as “the Consumer”).
3.	At the hearing of the 18th December 2015, the Applicant appeared in person, representing himself.

THE RESPONDENT

4.	The Respondent as cited in the application is Allied Capital (Pty) Ltd, a company incorporated in terms of South African law with Registration number 2014/012802/07. It also has its principal place of business at Sandton View Centre, in Bryanston (“the Respondent”).
5.	The Respondent does not appear to be a registered credit provider with the National Credit Regulator with a registration number (hereinafter also referred to as “the Credit Provider”). The Respondent was also not present at the hearing to assist the Tribunal in establishing it’s standing as a credit provider.
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6.	The Respondent has not filed any answering affidavit in this case and at the hearing of 18 December 2015, the Respondent was not represented. Accordingly, the matter opposed.
7.	Proof of service dated 23 October 2015 is on file, and a notice of set down was issued and filed in the case file.

TYPE OF APPLICATION

8.	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 he was required to state “the order sought from the Tribunal and the grounds for application” the Applicant had only stated the grounds of the application and had not disclosed the relief sought as such. And those grounds indicated on page 7 of case file (where the relief sought was supposed to be indicated) were:

“…seek interim relief in the matter lodged with the NCR against Allied Capital.”

9.	Among the first questions raised by the Tribunal at the hearing, was then the exact interim relief sought by the Applicant. The reason for this was that it cannot be countenanced that a party only seeks an unstated and unspecified interim relief, leaving it open tom the Tribunal to meru moto grant or refuse its own determined interim relief.

10.	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 is evidence that the allegations 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 the proceedings; and
(d)	the balance of convenience favours the granting of the order.”

RELIEF SOUGHT

11.	At the hearing, of 18 December 2015, when drawn to disclose and clarify the relief sought, the Applicant submitted that the relief sought was an order interdicting the Respondent from repossessing the vehicle at the centre of this case.

JURISDICTION

12.	This Tribunal has jurisdiction to hear matters referred to it under section 149 of the Act as cited above. But as to whether the interim relief sought is within the powers and jurisdiction of the Tribunal, is a matter of law; and may change from case to case. It is for this reason then that the Tribunal set the matter down and held the hearing of the 18th December 2015.
BACKGROUND

13.	In his application, the Applicant stated that he had entered into a pawn agreement with the Respondent. But at the hearing, and when pressed to substantiate the assertions in the application, it transpired, by his own evidence and recorded admissions that:

(1)	The Applicant had spotted an advertisement from the Respondent; inviting the public to pawn and continue to drive their cars.

(2)	On arrival at the Premises of the Respondent, he had pawned his car and received R6000.00 from the Respondent. This version however, changed once the evidence was called upon to substantiate the existence and terms of the pawn agreement.

(3)	There was no pawn agreement between the parties that was entered into either in writing or verbally;

(4)	The Applicant had actually sold his vehicle to the Respondent via a written and signed agreement (pages 16-17 of the case file). This agreement was not dated;

(5)	The Applicant had also on the same date of selling his car to the Respondent, made an offer to purchase it back for R7000.00 within 30 days of the date of that signature. This offer was dominated by a clause which stated that:
“Should the purchase price above not be paid on or before 2015/02/15; which date may be extended by Allied Capital (Pty) Ltd upon adherence to the rental agreement signed at the same time as this offer for a further period of five months, Allied Capital (Pty) Ltd will be entitled to sell the vehicle to another client.”

(6)	The “offer to purchase” fell away as the parties had settled on a lease agreement route. The rental agreement in question referred to another long written and signed agreement (pages 19-22 of case file) in which the Respondent leased to the Applicant the same vehicle. This agreement was accompanied by a “Written Authority and Mandate for Debit Payment Instructions” completed and signed only by the Applicant allowing the Respondent to deduct the amount of R1800.00 per month. The Applicant submitted orally, that this was the amount of renting the vehicle on a month to month basis. While the Applicant said that he was made to understand that this rental would continue only for 6 months, there was no such cap on the rental; either in the rental agreement or the written authority to debit the R1800.00 monthly.

(7)	Clause 9 of the Rental Agreement between the parties provides for events in the advent of a breach of the Applicant (user). That provision expressly states that:

“Should the user fail to pay any rent or other amount due by it in terms of this agreement on the due date; or commit any breach after written notice has been given to the user requiring it to remedy that breach, then Allied Capital (Pty) Ltd shall be entitled to cancel the agreement and take possession of the vehicle as per clause 7.2 above, without prejudice to any of its other rights under the agreement or law.”

(8)	On the 16th January 2015, the Applicant had also signed“ Consent to Voluntary Surrender” of the vehicle in question to the Respondent. The vehicle is a BMW 316L with Registration Number […..]. The main paragraph of this consent states that:

“In this regard, Allied Capital (Pty) Ltd shall be entitled to take possession of the motor vehicle, whenever it may be found, in their sole and absolute discretion in the event that I breach the Rental Agreement concluded between Allied Capital (Pty) Ltd and myself on 2015/01/16.”

(9)	After the offer to purchase had fallen away and the parties had followed the rental agreement route, the Applicant still expected that he would only pay the R1800.00 per month until the 15th of July 2015. He could not produce any basis for this expectation as the 6 months clause did not exist in any of the written agreements between the parties. Yet at the heart of his case, he is unhappy with the rental agreement. He also kept on conflating it with a pawn agreement which by his own admission; neither was followed nor exists.

14.	In paragraph 4 of the Applicant’s Affidavit, the Applicant claims that he had received a loan of R6000.00 after the Respondent had explained to him a process that he had been happy with. But as already indicated, the so called “loan” was a price for buying the car which until then, was owned by the Applicant.
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15.	In paragraph 7 of the Affidavit, the Applicant also alleges that “to my dismay and surprise, Allied Capital continues to deduct further instalments even though I had finished paying off the loan.” But as already indicated above, there was neither a loan agreement nor a pawn agreement. There is also no cap to the number of deductions in either the rental agreement or the debit order authorisation. The Applicant has also confirmed that he was still in possession of the rented car for which he is obliged, according to the agreement in place, to pay the monthly rental amount of R1800.00.

THE LAW ON THE MATTER

16.	Section 1 of the NCA defines a lease (which rental effectively alludes to) as:

“… an agreement in terms of which-

(a)	temporary possession of any movable property is delivered to or at the direction of the consumer, or the right to use any such property is granted to or at the direction of the consumer;

(b)	payment for the possession or use of that property is-

(i)	made on an agreed or determined periodic basis during the life of the agreement; or

(ii)	deferred in whole or in part for any period during the life of the agreement;

(c)	interest, fees or other charges are payable to the credit provider in respect of the agreement, or the amount that has been deferred; and

(d)	at the end of the term of the agreement, ownership of that property either-

(i)	passes to the consumer absolutely; or

(ii)	Passes to the consumer upon satisfaction of specific conditions set out in the agreement…”

REASONS FOR RULING

17.	The ruling at the end of this judgment is informed by the reasons that are made up of the following observations:
(1)	Since the Applicant is seeking an interim order which in terms of section 149(1)(b)(ii), of the Act, should be “reasonably necessary to … prevent a serious, irreparable damage to that person” (Applicant in this case).

(2)	The matter has also still been receiving the attention of the NCR at the time of its referral and hearing by the Tribunal. It was not as such, a matter pending before the Tribunal itself. This means
(1)	
that as the process unfolds through the NCR, the matter may still end up at the Tribunal in one form or another.

18.	The Applicant had initially and by sworn affidavit, characterised the agreement between the parties as a pawn agreement. At the hearing and in the documents presented unopposed by the Applicant, the matter turned out to be actually one of a lease agreement between the parties.

19.	The threat first perceived by the Applicant evaporated in the face of the overwhelming evidence that showed that it is not possible for the Respondent to overcharge the Applicant on a loan which does not exist.

20.	From the facts presented unopposed to the Tribunal, it appears as if the Applicant wishes to repudiate or be released from the terms of the lease agreement he signed at the beginning of 2015. The Tribunal is not empowered by law to order this for the Applicant.

JUDGMENT

21.	In the light of the preceding reasons, the Tribunal concludes that:

(1)	The application for an interim order interdicting the Respondent from repossessing the vehicle in question is dismissed.

(2)	There is no order as to costs.

Thus done and handed down in Centurion this 22nd ay of December 2015.

Prof. Joseph M. Maseko TRIBUNAL MEMBER

With Adv. Fati Manamela (Presiding Member) and Ms. P. Beck (Tribunal Member) concurring.