---

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/44221 /2015/114(1) NCA)

In the matter between:

Heinrich Van Eeden                                                                                                                                   Applicant

and

ABSA Bank Limited                                                                                                                               Respondent

 

Ms. D Terblanche:                 Tribunal Chairperson and Presiding Member

Prof B Dumisa:                       Deputy Chairperson and Member

Ms P Beck:                              Member

 

Date of hearing:                     22 August 2016

JUDGMENT AND REASONS

1. The Applicant is Mr. Heinrich van Eeden (“van Eeden”), an adult male of Oudtshoorn, Western Cape.

2. The Respondent is ABSA Bank Limited (“ABSA”) a public company incorporated in terms of the Companies Act, No 61 of 1973, registered as a bank in terms of the Banks Act, No 94 of 2005 and registered as a credit provider in terms of the National Credit Act, No 34 of 2005. ABSA carries on business inter alia from 3^rd Floor ABSA building, 45 Mooi Street, Johannesburg, Gauteng.

THE APPLICATION AND JURISDICTION

3. The Applicant brought the application and the Tribunal has jurisdiction to hear this matter in terms of section 114 of the National Credit Act, Act 34 of 2005, as amended (the “NCA”).

4. Section 114 provides as follows:

“114. If a statement is not offered or delivered within the time required by this Part, the Tribunal, on application by the consumer, may—

(a)     order the credit provider to provide the statement; or

(b)     determine the amounts in relation to which the statement was sought.”

THE HEARING

5. The application was heard on 22 August 2016 at George.

6. Mr. Sarel Fick (Fick), a debt counsellor registered with the National Credit Regulator (the NCR) under registration number NCRDC33, trading as Protocol Debt Counselling, assisted the Applicant with filing the application and at the hearing.

7. As the Respondent did not oppose the application and was not present at the hearing the matter had been dealt with on a default judgment basis.

8. Rule 13[2] of the Rules of the Tribunal allows that if a party does not dispute allegations made in an application those allegations may be deemed as admitted.

9. In accordance with Rule 25(3) the Tribunal is satisfied that the Respondent was properly served with the Application and advised of the hearing date.

10. In coming to a final determination however the Tribunal carefully interrogates the allegations and the evidence put forward by the Applicant to come to a determination whether the Applicant on the balance of probabilities had made out a case, entitling the Applicant to the relief sought.

BACKGROUND

In brief the sequence of events that that led to the matter being brought before the Tribunal is as follows:

11. Van Eeden went under debt review with Fick during 2010.

12. Fick negotiated debt re-arrangement proposals with Van Eeden’s creditors, including the Respondent, resulting in debt re-arrangement agreements with Van Eeden’s creditors during early 2010.

13. ABSA agreed to a debt re-arrangement proposal with van Eeden over a period of 56 months, at R680 per month at 21% interest per annum. This debt re-arrangement order was made with Respondent through Consumer Friend, its agent at the time. Van Eeden asserts that he paid a total of R33 718.67 from 15 May 2010 to date to Respondent.

14. Fick applied to the magistrates’ court for the debt re-arrangement agreements to be made an order of the magistrates’ court. The court approved his application and granted the order on 1^st of September 2010.

15. According to van Eeden and Fick, the amounts agreed to by the Applicant to all his credit providers in terms of the court order have been repaid in full.  Fick requested confirmation of the nil balances to issue van Eeden with a clearance certificate.

16. Fick, according to guidance for the National Credit Regulator (the NCR) requires “paid up” letters that the accounts had been paid. All Van Eeden’s credit providers except for ABSA have issued “paid up” letters.

17. Upon requesting the “paid up” letter from Respondent the Respondent advised that there is still an outstanding balance of plus minus R4 000 on Van Eeden’s account.  Fick and Van Eeden did not agree with the stated balance.

18. Due to ABSA not providing a “paid up” letter to Fick he is not in a position to issue Van Eeden with a clearance certificate under the NCA.

19. During June 2015 Fick requested ABSA to furnish him with a detailed statement in the format as prescribed in the NCA. To date of this hearing neither Applicant nor Fick have received the requested statement.

20. The matter has been referred to the Ombudsman for Banking Services South Africa (OBSSA) and the National Credit Regulator (the NCR), but remains unresolved.

21. The Applicant consequently launched the current application with the Tribunal.

CONSIDERATIONS BY THE TRIBUNAL

Applicable law

22. The section 114 application follows on the non-compliance with a request / requests for a statement and information pertaining to a credit agreement under section 110 of the NCA. Section 110 provides as follows:

“110(1) At the request of a consumer, a credit provider

must deliver without charge to the consumer a statement of all or any of the following—

(a)     the current balance of the consumer’ s account;

(b)     any amounts credited or debited during a period specified in the request;

(c)     any amounts currently overdue and when each such amount became due; and

(d)     any amount currently payable and the date it became due.

(2)  A statement requested in terms of subsection (1) must be delivered—

(a)     within 10 business days, if all the requested information relates to a period of one year or less before the request was made; or

(b)     within 20 business days, if any of the requested information relates to a period of more than one year before the request was made.

(3)  A statement under this section may be delivered

(a)     orally, in person or by telephone; or

(b)     in writing, either to the consumer in person or by sms, mail, fax, email or other electronic form of communication, to the extent that the credit provider is equipped to offer such facilities, as directed by the consumer when making the request.

(4)      A credit provider is not required to provide—

(a)     a further written statement under this section if it has, within the three months before the request is given, given such a statement to the person requesting it; or

(b)     information in a statement under this section more than three years after the account was closed.

(5) On application by a credit provider, the Tribunal may make an order limiting the credit provider’s obligations to a consumer in terms of this section if the Tribunal is satisfied that the consumer’s requests are frivolous or vexatious.

(Date of commencement of s. 110: 1 June, 2007.)”

23. It is clear that NCA in terms of section 110 entitles the consumer to require statements from the Respondent (credit provider) and consequently provides a route and a remedy in section 114 for the consumer to use to oblige the credit provider to provide the statement to him should his requests not be met.

24. According to the Applicant he had fully repaid all his creditors, including ABSA though ABSA disputes that and is claiming an outstanding balance that the Applicant does not agree with and have actually handed the Applicant over to lawyers to collect the amount they claim is outstanding.

25. Applicant requires a statement of account from ABSA to determine the basis upon which ABSA claims an amount outstanding to it and to get to a resolution of the matter and get a clearance certificate from Fick.

26. During June 2015 Fick requested ABSA to furnish him with a detailed statement in the format as prescribed in the NCA. To date of this hearing neither Applicant nor Fick have received the requested statement.

27. The Tribunal finds that the Respondent has an obligation in law to provide the Applicant and / or his agent, at his direction, with the information as set out in section 110(1) of the NCA.

28. The Tribunal accordingly makes the following order -

28.1.   The application is granted;

28.2.   Respondent is ordered to provide the Applicant and / or his agent, at his direction, with a statement with all or any of the following on his account held under reference number 03062009 held with Respondent —

28.2.1.             the current balance of the consumer’ s account;

28.2.2.           any amounts credited or debited during a period specified in the request;

28.2.3.           any amounts currently overdue and when each such amount became due; and

28.2.4.             any amount currently payable and the date it became due.

28.3.   Respondent is ordered to provide the information in 28.2 above to the Applicant and / or his agent at his direction, by no later 22 (twenty two) days from the date of this order; and

28.4.   There is no order for costs.

Handed down on this 19^th day of September 2016

[signed]

____________________

D R Terblanche [Tribunal Chairperson and Presiding member]

Prof B Dumisa [Deputy Chairperson and Member] and Ms P Beck [Member], concurring

---