South Africa: National Consumer Tribunal Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: National Consumer Tribunal >> 2017 >> [2017] ZANCT 107

| Noteup | LawCite

Letsoalo v Wesbank, A division of Firstrand Bank Limited (NCT/82802/2017/128) [2017] ZANCT 107 (4 October 2017)

Download original files

PDF format

RTF format


IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case  number: NCT/82802/2017/128

In the matter between:

MAKETE JUDAH LETSOALO                                                                       APPLICANT

and

WESBANK, A DIVISION OF FIRSTRAND BANK LIMITED                        RESPONDENT

 

Coram:

Prof. J. Maseko        - Presiding member and Chairperson of the Tribunal

Adv. J. Simpson       - Member

Mr. X. May                 - Member

 

Date of Hearing                       30 August 2017

JUDGMENT AND REASONS ON POINTS IN LIMINE

APPLICANT

1. The Applicant in this matter is Mr Letsoalo, a major male (hereinafter referred to as  to “the Applicant or "Mr Letsoalo"). The Applicant represented himself at the hearing.

RESPONDENT

2. The Respondent is Wesbank, a division of First Rand Bank Limited, a registered credit provider (hereinafter referred to as “the Respondent" or "Wesbank"). The Respondent was represented at the hearing by Adv. A. Freidman of the Johannesburg bar, instructed by Smith Jones and Pratt Attorneys.

APPLICATION TYPE

3. This is an application in terms of Section 128(1) of the National Credit Act 34 of 2005 ("the NCA").

4. Section 128 of the NGA states the following -

128. Compensation for consumer.-

(1)  A consumer who has unsuccessfully attempted to resolve a disputed sale of goods in terms of section 127 directly with the credit provider, or through alternative dispute resolution under Part A of Chapter 7, may apply to the Tribunal to review the sale.

(2)  If the Tribunal considering an application in terms of this section is not satisfied that the credit provider sold the goods as soon as reasonably practicable, or for the best price reasonably obtainable, the Tribunal may order the credit provider to credit and pay to the consumer an additional amount exceeding the net proceeds of sale.

(3)   A decision by the Tribunal in terms of this section is subject to appeal to, or review by, the High Court to the extent permitted by section 148.

BACKGROUND

5. In summary, the Applicant owned a 2014 Audi AB 3.0 TDI Quattro motor vehicle. The purchase of the vehicle was financed by the Respondent. During 2015 the Applicant experienced financial difficulties and was unable to pay the monthly instalments due on the loan agreement with the Respondent. The account went into arrears which eventually resulted in the Applicant signing a notice of surrender agreement on 11 October 2016 in terms of section 127 of the NCA. The vehicle was sold at an auction for approximately R530 000.00. At that stage the outstanding balance on the account was R1112 918.07. After costs, and the proceeds of the sale, the Applicant still owed R524 867.84 on the loan agreement.

6. The Applicant lodged an application with the Tribunal in terms of section 128 of the NCA on 31 May 2017. The Applicant is alleging that the Respondent did not sell the vehicle as soon as reasonably practicable, or for the best price reasonably obtainable. The applicant alleges the vehicle was sold three months and 15 days after it was attached. In his view this is an unreasonable period of time. The Applicant wants his account to be credited with all the interest. storage costs and instalments charged on his account from 12 October 2016, when he advised the bank of a possible offer of R550 000.00 on the vehicle. He further wants his account credited with the difference between the possible offer he received and the auction price obtained.

POINTS IN LIMINE

7. At the hearing both parties raised points in limine. After hearing argument from both parties the Tribunal adjourned the hearing to issue a written judgment on the points raised.

8. The points raised by the Applicant are the following -

8.1          The Respondent did not file its answering affidavit within the 15 business day period as specified by the Rules of the Tribunal[1].

8.2           The Respondent sent its section 127 notice to the Applicant by ordinary post, not by registered post as required by relevant High court decisions.

9. The Respondent submitted the following as points in limine -

9.1 The Tribunal does not have the power to issue an order that notice in terms of section

127 was not properly served and to thereby dismiss the entire surrender process.

9.2 Section 128(1) requires the Applicant to first lodge a dispute with the Respondent or attempt to resolve the matter through alternative dispute resolution. The Respondent submitted that the Applicant had not complied with this requirement and could therefore not lodge the application with the Tribunal.

The service of the section 127(2) notice by ordinary post

10. Both the parties raised this aspect as a point in limine and they can be dealt with together. The Applicant made extensive and detailed submissions regarding the service of the notice. The Tribunal took note of these extensive submissions, however, for the purposes of this judgment, does not regard it as necessary to evaluate them in detail.

11. The Application before the Tribunal relates specifically to the provisions of section 128 of the NCA. Section 128 does not in any way require the provisions or processes of section 127 to be considered.

12. The Applicant referred to the Tribunal's general power, in terms of section 150(i) of the NCA, to make an appropriate order required to give effect to a right, as contemplated in the NCA. The Applicant submitted that this section empowered the Tribunal to issue an order regarding the compliance with section 127(2) of the NCA. This power is however clearly limited to giving effect to a right of a consumer. The rights of consumers are clearly defined in the NCA under Chapter

4. Section 127 does not contain any reference to any consumer rights. It is therefore doubtful whether the Tribunal can apply this power in relation to section 127(2).

13. The Tribunal will further only exercise this power in exceptional circumstances where there is no other appropriate remedy or process available. The process for the National Credit Regulator (NCR) to bring an application before the Tribunal, for it to consider whether any form of prohibited conduct has occurred, is clearly set out in the various provisions of the NCA. These processes are laid out in Part C of Chapter 8 of the NCA. These various sections have numerous requirements, such as requiring an investigation to take place before the matter can be referred to the Tribunal. The Applicant is therefore at liberty to lodge a relevant complaint with the NCR which, if it deems necessary, can take the process further in terms of the appropriate provisions of the NCA. It would not be appropriate for the Tribunal to consider the arguments and issue an order relating to section 127(2) in the isolated circumstances of this matter.

14. The Applicant's point in limine in this regard is therefore dismissed.

The lodging of a dispute with the Respondent prior to filing an application in terms of section 128

15. Numerous previous judgments by the Tribunal have confirmed that the a consumer must first lodge a dispute with the credit provider or attempt to resolve the matter through alternative dispute resolution in accordance with section 128(1), before the Tribunal can consider the provisions of section 128(2).

16. Again, the Tribunal does not regard it as necessary to consider the Respondent's submissions in detail. In summary, the Respondent submitted that the Applicant did not specifically lodge a prior complaint with the respondent regarding the length of time taken to sell the vehicle or the sale price obtained. The Respondent was therefore not provided with a reasonable opportunity by the Applicant to try and resolve the dispute. It requested that the application be dismissed on this basis. The Respondent submits that the questions posed by the Applicant to the Respondent regarding the sale of the vehicle do not constitute the raising of a dispute as required by section 128(1}.

17. The Applicant submitted that his e-mail to the Respondent on 15 May 2017 contained numerous questions to the Respondent regarding the sale, to which he never received a clear response. He submitted that his e-mail clearly raised a dispute regarding the sale of the vehicle.

18. The Applicant's email dated 15 May 2017 refers to numerous issues but contains two relevant and clear questions -

"How was it determined that the price that it was sold for was the best one under the circumstances?

Why did it apparently take an unduly extended period for the vehicle to be sold?"

19. It is clear that the two questions posed by the Applicant, at  the very least,  constitute the initiation of a dispute regarding the sale of the vehicle. If the Respondent had answered these questions the dispute would have ensued fully. Section 128(1} does not require the dispute to be raised in any specific format or manner. The Applicant posed specific questions which related specifically to section 128(2).The questions placed the Respondent in a reasonable position to try and resolve the dispute before the Applicant would need to lodge a formal application with the Tribunal. The Applicant cannot be penalised for the Respondent's failure to address the Applicant's questions fully and properly.

20. The Respondent's point in limine in this regard is therefore dismissed.

The Rules of the Tribunal relating to the period within which an answering affidavit must be filed

21. The Applicant submits that Rule 13(2) requires the Respondent to file its answering affidavit within 15 business days of having been served with the application. The application was served on the Respondent on 30 May 2017. The answering affidavit therefore had to be filed by 21 June 2017. The Applicant however received the Respondent's answering affidavit on 27 June 2017.

22. The Respondent essentially only submitted that its answering affidavit was filed within time. The Respondent did however advise the Tribunal that it has prepared an application for condonation should the Tribunal deem it necessary to file it.

23. It appears from the case file that the notice of complete filing was issued on 2 June 2017 by the Tribunal Registrar. The notice states that the Respondent has 15 business days from the date of the notice within which to file its answering affidavit. It therefore had until 26 June 2017 to file the answering affidavit (16 June 2017 being a public holiday.) The Respondent served the answering affidavit by e-mail to the Applicant and then followed up with hand delivery on 27 June 2017 in accordance with Rule 30(2).

24. The answering affidavit was therefore filed within time as per the notice by the Registrar but not as per the time prescribed by Rule 13(2). In accordance with the Rules, the answering affidavit was filed 4 business days late.

25. Rule 13(2) states the following -

13. Opposing an application or referral.-

(1)         Any Respondent to an application or referral to the Tribunal may oppose the application or referral by serving an answering affidavit on:

(a)     the Applicant; and

(b)     every other person on whom the application was served.

(2)       An answering affidavit to an application or a referral other than an application for interim relief must be served on the parties and filed with the Registrar within 15 business days of receipt by such party of the application.

26. Rule 13(2) therefore makes it clear that the answering affidavit had to be filed by 21 June 2017.

27. The requirements for the filing of an application with the Tribunal are set out in Rules 6 and 7. The applicant is required to complete the relevant form and attach all the documents set out in the Table 2 of the Rules.

6.  Notification of parties and service of application documents.-

(a)  The Applicant must notify the persons mentioned in column g of Table 2 by serving on them the documents required under column h of that Table.

(b)   The application documents filed with the Tribunal must include a proof of service for every person requiring notification.

(c)  Notification and service must comply with rule 30.

7.  Filing an application.-

(1)      Once notification of an application has been served in terms of rule 6, the application must be filed with the Registrar.

(2)      An application is filed by delivery of the relevant Form and all the documents listed in column e of Table 2, if applicable, or as required elsewhere in these rules, to the Registrar.

(3)      Applications to the Tribunal must be addressed to the Registrar and­

(a)  delivered to the physical address; or

(b)  sent by registered mail to the postal address; or (c} sent by fax; or

(d)  sent by e-mail; or

(e)  sent by electronic filing.

(4)      In response to an application, the Registrar must-

(a)  allocate a unique reference number to the matter;

(5)      The filing of an application must comply with the general rules for delivery of documents in terms of these rules.

28.         The Registrar may then assess the application for compliance with the Rules in accordance with Rule 8.

8. Incomplete applications.-

(1) If an application does not satisfy the requirements of the rules-

(a)  the Registrar may notify the Applicant and the other parties of the defect; and

(b)  the Applicant may within a time permitted by the Registrar­

(i)  complete the application; and

(ii)  if required to do so, serve additional documents or information on the parties.

(2) The application shall lapse if the Applicant does not take any further steps in completing the application within the time permitted by the Registrar as contemplated in subrule (1) (b).

29. What appears to have developed, as a matter of practice, by the Tribunal Registrar, is to assess every application it receives and to determine whether it complies with the Rules. This practice appears to have developed as a result of the number of applications received from unrepresented consumers that filed incomplete applications or filed the incorrect application. The Respondent would therefore often not be in a position to respond to the application due to it being wrong or incomplete. After assessing the application, the Registrar then sends a notice to the parties advising whether the application is complete or incomplete. Only once the application is assessed to be-complete is the Respondent informed to file an answering-affidavit-Within 15 business days of the date of the notice.

30. The process of assessing an application and advising whether an application is incomplete is entirely within the ambit of the Registrar's powers in accordance with Rule 8. The problematic aspect is however their practice of advising the Respondent in their notice that they only need to file their answering affidavit within 15 business days of the notice of complete filing. However practical this approach may be, the Rules do not provide for this new time period which replaces the time period provided for in Rule 13(2).

31. Rule 3(3) allows the Chairperson to issue practice directives, which are consistent with the Act, the CPA and these rules, which shall be binding on parties to Tribunal proceedings and which will assist in proper case management and service delivery at the Tribunal. The Tribunal is not aware of any practice directive which has been issued in this regard but the Rule specifically states that the practice directive must be consistent with the Rules. The Registrar would not have the power to extend the period within which the answering affidavit must be filed. Only the Tribunal may condone late filings in accordance with Rule 34.

32. Rule 8(1)(b)(ii) further provides for a situation where the application is incomplete and must be supplemented and again served on the Respondent. If the Respondent as already filed its answering affidavit, prior to receiving the further documents from the applicant, then it can apply to amend its answering affidavit or documents in terms of Rule 15.

33. The practice followed by the Registrar in issuing a notice of complete filing and then allowing the Respondent to file an answering affidavit appears to be reasonable and logical. However this practice is in conflict with the Rules. A practice cannot be in conflict with the Rules. The Rules would have to be amended if the Registrar wishes to follow the practice it has developed.

34. The Applicant's point in limine is therefore upheld.

35. Although the point in limine has been upheld, this does not dispose of the Respondent's opposition to the application. The Respondent is at liberty to apply for a condonation of the late filing of the answering affidavit.

ORDER

36.

Accordingly, the Tribunal makes the following order-

36.1       The Respondent may file an application to condone the late filing of the answering affidavit. The application must be filed within 15 business days of the date of this judgment.

36.2      If no application for condonation is received from the Respondent within the time specified then the matter will proceed on a default basis.

36.3      There is no order as to costs.

DATED ON THIS 4th DAY OF OCTOBER 2017

 

[signed]

Adv J Simpson

Member


Mr. X May (member) and Prof. JMaseko (Presiding member) concurring.


[1] GN 789 of 28 August 2007: Regulations for matters relating to the functions of the Tribunal and Rules for the conduct of matters before the National Consumer Tribunal, 2007 (Government Gazette No. 30225)

as amended by Notice

Government Gazette

Date

GN 428

34405

29 June 2011

GNR. 203

38557

13 March 2015