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Wason v Pienaar and Others (NCT-120279-2018-165) [2019] ZANCT 35 (2 March 2019)

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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case number: NCT-120279-2018-165

 

In the matter between:

 

IAN EUGENE ROMER WASON                                                     Applicant

                                   

AND

 

ANDRE CHRISTOPHER PIENAAR                                               1st Respondent/Consumer

ANTOINETTE MERVIDA PIENAAR                                          2nd Respondent/Consumer

BOODLE (PTY) LTD                                                                  3rd Respondent

BRUMA FINANCE (PTY) LTD                                                    4th Respondent

FIRST NATIONAL BANK, A DIVISION OF FIRSTRAND BANK LTD        5th Respondent

WESBANK, A DIVISION OF FIRSTRAND BANK LTD                     6th Respondent

NEDBANK                                                                                         7th Respondent

 

 

 

Coram:

Dr. MC Peenze                   -           Presiding Tribunal Member

Prof. B Dumisa                   -           Tribunal Member

Dr. L Best                            -          Tribunal Member

 

Date of Hearing                  -           14 February 2019

Date of Judgment                -          2 March 2019

           


JUDGMENT AND REASONS

 


APPLICANT

 

1.        The Applicant is Ian Eugene Romer Wason, a registered Debt Counsellor, practising as such with debt counselling registration number NCRDC1817 (hereinafter referred to as “the Applicant”).

2.        At the hearing, the Applicant was represented by Mr Cornelius Ignatius van Heerden from VHT Incorporated Attorneys.   

 

RESPONDENTS

3.        The First and Second Respondents are consumers who are under debt review (“the Consumers”).

4.        The Third to the Seventh Respondents are all registered with the National Credit Regulator (hereinafter referred to as “the NCR”) as credit providers in terms of the National Credit Act (hereinafter referred to as “the NCA”).

5.        There was no appearance by any of the Respondents or their representatives at the hearing. The matter proceeded on a default basis.

 

APPLICATION TYPE

6.        This is an application in terms of Section 165(b) of the NCA to vary the rescission judgment made by the Tribunal under case number NCT/110280/2018/165 on 26 September 2018.

 

CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS

7.         On 19 November 2018, the Applicant filed the application with the Tribunal. The application was served on the Respondents via e-mail. The Respondents consented to service via e-mail.

8.        In terms of Rule 13 of the Rules of the Tribunal,[1] the Respondents had 15 business days to serve an answering affidavit and file the same with the Tribunal’s Registrar. The Respondents however failed to do so.

9.         The Applicant did not file an application for a default order in terms of Rule 25(2).

10.      On 4 January 2019, the Tribunal’s Registrar issued a notice of set down to all the parties setting the matter down for hearing on a default basis due to the pleadings being closed.

11.      On the date of the hearing the Presiding Tribunal member was satisfied that the notice of set down was adequately served on the Respondents and the matter proceeded on a default basis.

12.      Rule 13(5) provides that:

 

Any fact or allegation in the application or referral not specifically denied or admitted in the answering affidavit, will be deemed to have been admitted..

                                         

13.      Therefore, in the absence of any answering affidavit filed by the Respondents, the Applicant’s application and all of the allegations contained therein are deemed to be admitted.

 

BACKGROUND

14.      On 22 February 2016, the Debt Counsellor, Mr Wason, filed an application for an order confirming the debt restructuring agreement between the Consumers and the Credit Providers as an order of the Tribunal. The consent order was granted by the Tribunal on 5 September 2016 under Tribunal case number NCT/45741/2016/138.

15.      During the course of September 2018, the Consumers brought an application in terms of Section 165(b) of the NCA to have the consent order rescinded. 

16.      On 26 September 2018, the Tribunal granted the application to rescind the consent order. In this judgment, the Tribunal also ordered the Registrar to avail a copy of the judgment to the Chief Executive Officer of the National Credit Regulator for their attention and further appropriate action.

 

APPLICANT’S ARGUMENT

17.      It is the Applicant’s submission in this application that he only became aware of the rescission of the consent order on the 29th of October 2018. The prevailing circumstances preceding this event were summarized as follows:

17.1      On 21 September 2015, the 1st and 2nd Respondent were transferred from a previous debt counsellor to the Applicant.

17.2      On 4 November 2015, the Applicant issued a debt restructuring proposal to the Credit Providers of the 1st and 2nd Respondent. It was common case that all the Credit Providers to this application accepted the debt restructuring proposal.

17.3      On 13 November 2015, the Applicant received a letter from Nedbank requesting the Applicant to provide proof that the clients were transferred to the Applicant as debt counsellor. Nedbank advised the Applicant that two accounts held under the 1st and 2nd Respondent had been terminated in terms of Section 86(10) of the NCA. Same was terminated on 26 January 2011 and 2 February 2011 respectively.

17.4       On 4 January 2015, Nedbank proceeded to decline the Applicant’s proposal made, based on the fact that the accounts have been terminated.

17.5      On 22 February 2016, the Applicant lodged an application for a consent order in terms of Section 138 of the NCA. The Applicant decided to rather approach the Tribunal for a consent order, the reason for this decision was that the Applicant bona fide believed that the Applicant would not be able to have the Nedbank accounts included in the debt review process. Section 86(11) of the NCA states that the “enforcement court” has the powers to re-instate terminated accounts under debt review.

17.6       According to the Applicant, his bona fide actions were to provide protection to the 1st and 2nd Respondents and accordingly, he indicated that there were 2 excluded accounts, making it clear that he made provision for same within the 1st and 2nd Respondents’ monthly budget.

17.7       The Applicant outlined that he made it clear at the time what his service address was in his application to the Tribunal and that there was no intention of misleading the Tribunal or any other party involved. The Applicant submitted that he acted in good faith, and that he is still of the view that following this route (to the Tribunal) was the best recourse for this specific case, which was created by circumstances that were not within his control.

17.8      The Applicant further submitted that on 14 June 2018, the 1st Respondent lodged an application to rescind the consent order in terms of Section 165 of the NCA with a service address that is different from the Applicant’s consent to service address, as clearly outlined in all documents before the Tribunal.

17.9       The Applicant submitted that an employee of his who consented to receive emails without any mandate from the Applicant acted in good faith, although the full address does not appear on the email, rendering such consent invalid. Other emails were sent to addresses of his company that are electronic email boxes for credit providers, which emails are not manned by individuals that will be able to attend to it on behalf of the company for purposes of litigation responses.

 

18.      In the light of the above, although the Section 165 application was served, the Applicant submitted that it was served onto a party not privy to the application and that the Applicant was therefore unable to serve an answering affidavit in terms of Rule 13 of the rules of the Tribunal.

19.      As the application for the rescission of the consent order was therefore not properly served on the Applicant in this application, the submission is therefore made that the Tribunal should utilize its discretion in terms of section 165(b) to rescind the rescission judgment, because the Applicant in this application was unable to serve an answering affidavit in terms of Rule 13 of the rules of the Tribunal and wishes to do so.

20.      The Applicant outlined that the rescission of the rescission judgment made under case number NCT/110280/2018/165 is sought based on the fact that it was granted in the absence of a party affected by it, as several damaging findings were made against the Applicant in this judgment, while the Applicant had no proper opportunity to present his version of the events that unfolded in that matter.

21.      The Applicant submitted that should the Section 165 application under case number NCT/110280/2018/165 had been served correctly on himself, that he would have opposed the application only insofar as to provide his version of the events.

22.      The Applicant further submitted that the rescission judgment in case number NCT/110280/2018/165 contains ambiguities, obvious errors and omissions in that it orders that a copy of the judgement must be provided to the Chief Executive Officer of the NCR for further attention, while it concludes what the Applicant alludes to as serious incorrect conclusions with regard to the alleged practises and role that the Applicant played with regard to the re-instatement of terminated accounts under debt review, which statements effect the Applicant’s image in the industry:

(i)        According to the Applicant, the Tribunal was informed in the consent application process that there were excluded accounts. However, the Rescission judgment order seemed to have drawn a different conclusion.

(ii)       The Applicant submitted that, in terms of Section 86(11) of the NCA, only the “enforcement court”, may re-instate terminated accounts under debt review, and the Applicant submitted that he had no jurisdiction over the Nedbank accounts at the time. Further, as the Applicant had no recourse in order to re-instate the terminated accounts and only received consents for 8 of the accounts from the 1st and 2nd Respondent, he was allowed to approach the Tribunal in terms of Section 86(8)(a) of the NCA.

(iii)      The Rescission order in case number NCT/110280/2018/165 states that the Applicant should have approached the magistrate court, and included Nedbank’s two excluded accounts into a proposal. The Applicant submitted that the magistrate court would not have had the authority to include the accounts, as termination had taken place long before the Applicant had sight of the 1st and 2nd Respondents’ review application. Should Nedbank have provided the Applicant with counter proposals on their accounts, the Applicant would have proceeded to the magistrate court for the court to decide on the instalment and repayment term.

(iv)      According to the Applicant, the Magistrate Court did not have the authority to include the terminated accounts, as Section 86(11) states the following: “If a credit provider who has given notice to terminate a review as contemplated in Subsection (10) proceeds to enforce that agreement in terms of Part C of Chapter 6, the court hearing the matter may order that the debt review resume on any condition the court considers to be just in the circumstances”. Forthwith, only the enforcement court may re-instate the review, and even if the Applicant approached the magistrate court, the Applicant would not have been successful.

 

23.      The Applicant is not seeking to have the rescission judgment rescinded with regard to the section of the order dealing with the actual rescission, as it is clear that the consumers are no longer in need of the debt review process. The purpose of this application is to have the rescission judgment rescinded with regard to only the section of the rescission judgment dealing with the instruction to provide a copy of the Judgment to the CEO of the National Credit Regulator for their attention and further appropriate action.

24.      The Applicant submitted that this is a unique case in that it was never the Applicant’s intention to mislead the Tribunal, as suggested in the Rescission Judgment under case number NCT/110280/2018/165, or act contrary to the provisions of Section 86(8)(a). Accordingly, it was submitted that there was no foundation for the decision of the Tribunal, namely “to provide a copy of the judgment to the CEO of the NCR for their attention and further appropriate action”.

 

APPLICABLE SECTIONS OF THE ACT

 

25.         The application is brought in terms of Section 165(b) of the Act, which states -

 

The Tribunal, acting of its own accord or on application by a person affected by a decision or order, may vary or rescind its decision or order-

(a)  erroneously sought or granted in the absence of a party affected by it;

(b)  in which there is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

(c) made or granted as a result of a mistake common to all the parties to the proceedings.”

 

26.      The original consent order was made in terms of Section 138(1) of the Act, which provides that;

 

If a matter has been-

 

(a)  resolved through the ombud with jurisdiction, consumer court or alternatively; (and)

(b) investigated by the National Credit Regulator, and the National Credit Regulator and the respondent agree to the proposed terms of an appropriate order, the Tribunal or a court, without hearing any evidence, may confirm that resolution or agreement as a consent order.”

 

CONSIDERATION OF SECTION 165 OF THE ACT

27.       As outlined above, Section 165 of the Act provides for a rescission or variation of an order granted by the Tribunal “acting of its own accord or on application by a person affected by a decision or order.” The three grounds prescribed by section 165 will be detailed under separate headings, namely:

 

18       

·         When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it;

·        There is ambiguity, or an obvious error or omission, but only to the extent of correcting that  ambiguity, error or omission; or

·         Made or granted as a result of a mistake common to all the parties to the proceedings.

 

28.        Erroneously sought or granted

The courts have held that in an application for variation or rescission of an order, the Applicant bears the onus of establishing that the order was erroneously granted.[2]  The court considered the meaning of the words "erroneously granted". This is dealt with in the Bakoven-case[3] where it was stated:

 

"An order or judgment is 'erroneously granted' when the Court commits an 'error' in the sense of 'a mistake in a matter of law appearing on the proceedings of a Court of record' (The Shorter Oxford Dictionary). It follows that a Court in deciding whether a judgment was 'erroneously granted' is, like a Court of Appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the common law, the applicant need not show 'good cause' in the sense of an explanation for his default and a bona fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala and Another v Pierre 1979 (4) SA 27 (T) at 30C-D). Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission."

 

Accordingly the words "erroneously granted" mean that the Tribunal must have committed an error or mistake in law. The court, in the matter of First National Bank of SA Bpk v Jurgens and Another,[4] the learned Judge Leveson stated:

 

That leaves me only with the task of considering para (a) of the same sub-rule which makes provision for rescission or variation of an order or judgment erroneously sought or erroneously granted. I look first at the remedy available before the rule came into force. Ordinarily a court only had power to amend or vary its judgment if the court had been approached to rectify the judgment before the Court had risen. That relief was available at common law and with the only relief that could be obtained until the provisions of rule 42 were enacted. The proposition at common law is simply that once a court has risen it has no power to vary the judgment for it is functus officio. Firestone South Africa (Pty) Ltd v Genticuro AG, 1977(4) SA 298 (A). A principal judgment could be supplemented if an accessory had been inadvertently omitted, provided that the court was approached within a reasonable time. Here the judgment was granted two years ago and a reasonable time has expired. The question then is whether the limited relief at common law has been extended by this provision. In the first place I must express considerable doubt that power exists in the Rules Board to amend the common law by the creation of a Rule. Leaving aside that proposition, however, the question that arises is whether the present case is one of a judgment 'erroneously sought or granted',[5] those being the words used in Rule 42(1)(a). The ordinary meaning of 'erroneous' is 'mistaken' or 'incorrect'. I do not consider that the judgment was 'mistakenly sought' or 'incorrectly sought'. The relief accorded to the plaintiff was precisely the relief that its counsel requested. The complaint now is that there is an omission of an accessory feature from the judgment. I am unable to perceive how an omission can be categorised as something erroneously sought or erroneously granted. I consider that the rule only has operation where the applicant has sought an order different from that to which it was entitled under its cause of action as pleaded. Failure to mention a form of relief which would otherwise be included in the relief granted is not in my opinion such an error."

 

29.      Ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission

 

This ground for variation is clearly applicable in instances where an order granted by the Tribunal is vague or uncertain, or an obvious error occurred in the granting thereof. The applicable provision is unambiguous in stating that the order will only be varied to the extent of such an ambiguity, error or omission.

 

30.        Mistakes common to all the parties to the proceedings.

 

The applicable provision relates to an error which occurred in the granting of the order and requires that the error is common to all the parties.

 

ANALYSIS OF THE EVIDENCE 

31.       It is clear from a plain reading of the relevant sections from the NCT/110280/2018/165 docket that the Section 165(b) Application for rescission of the Section 138 consent order under case number NCT/45741/2016/138(1)(P) was not properly served on the Applicant in terms of the Rules of the Tribunal.

32.      Based on the information contained in the Tribunal’s file, the only “consent to service” address that could have been used was NCT correspondence@debtbusters.co.za, which email address was not utilized.

33.      It is further clear that the Applicant was put at a disadvantage due to his absence in the said Section 165(b) hearing, in that he was not granted the opportunity to put his stance before the Tribunal. He was not able to explain to the Tribunal the background relating to the terminated accounts or any other applicable facts to the matter at hand. Due to the Applicant’s absence, the Tribunal made various negative deductions regarding the role of the Applicant as debt counsellor in that particular matter. Various general comments were accordingly mentioned in the subsequent Rescission Judgment with regard to the expectations from debt counsellors relating to terminated accounts.

34.       A thorough analysis of the rescission judgment may find that the obiter remarks tend to be dramatic, prompting the question whether the ordinary meaning of “mistakenly sought” or “incorrectly sought” could also include an action initiated by the bench, resulting in a “mistakenly ordered” or “incorrectly ordered” finding in the absence of a party affected by it.

35.       The relief accorded to the Consumers in the rescission order was not exactly the relief that was requested, in that the Consumers only requested the rescission of the consent order and not further appropriate action by the NCR. As the rescission judgment extended beyond what the consumers requested, the question is posed whether or not such “extension” will make this “Bakoven-rule” applicable.  In this particular case, the impact of the additional order/decision had a disadvantaged effect or impact on a debt counsellor who did not have the opportunity to defend himself, making the order inappropriate. Further, the Consumers would not have been entitled to plead such an order under its cause of action, making the order “erroneously granted” in terms of First National Bank of SA Bpk v Jurgens and Another supra.

36.       Further, in that the rescission judgement refers to debt counsellors that should be advised of their responsibilities in terms of the NCA in general, but deals with the Applicant and his particular negatively perceived role in this matter specifically, the referral to the NCR for “further attention” seems vague or uncertain, ambiguous to the extent that attention could either refer to the Applicant or to debt counsellors in general.

37.       This error occurred in the granting of the order. Accordingly, the negative impact will emphasise the incorrectness of this part of the judgment.

 

CONCLUSION

38.      It follows from the above that good cause had been shown that the rescission order contained in NCT/110280/2018/165 should be varied and that the following directive be struck from the order:-

 

29.2 The Tribunal Registrar must avail a copy of this judgment to the Chief Executive Officer of the National Credit Regulator for their attention and further appropriate action.”

 

39.      This variation of the rescission order is supported based on argument provided by the Applicant of him being negatively affected by the rescission order section 29.2 which had been granted in his absence; in that the Tribunal based its order on information erroneously sought relating to the Applicant’s alleged role in excluded accounts and the mistake made with regard to the fact that the Tribunal was not alerted to the fact that a creditor had refused the payment proposal.

40.      Lastly, the variation is supported in that the Tribunal concluded in an ambiguous fashion that appropriate action should be taken by the NCR. It is unclear whether further appropriate action should be taken against the Applicant or debt counsellors in general. The lack of clarity, omission or obvious error in this respect rules this specific directive void.

41.      On the one hand, the Applicant did not have the opportunity to present his case with regard to his role in the allegations relating to an assumed finding of prohibited conduct, and on the other hand, the NCR does not need to be informed of the fact that debt counsellors in general need to be advised of the responsibilities and pitfalls relating to potential abuse of the debt review processes and the responsibility of the NCR to take appropriate action when such abuse would occur. 

42.      This relief was also not part of the cause of action that formed part of the pleadings, as outlined above, confirming the inappropriateness of including same in the order.

 



ORDER

43.       Accordingly; the Tribunal makes the following order:-

43.1    The application to vary the order in Case number NCT/110280/2018/165 is granted;

43.2    The varied order is attached hereto and marked “Annexure A”; and

43.3    There is no order made as to costs.

 

Thus; done and signed at Pretoria on 2 March 2019.

 

 

{signed}

Dr. MC Peenze

Presiding Tribunal Member

           

Pr. B Dumisa (Tribunal Member) and Dr. L Best (Tribunal 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.

[2] Bakoven Ltd v G J Howes (Ptv) Ltd 1990(2) SA 446 at page 469 B.

[3] Bakoven Ltd v G J Howes (Ptv) Ltd 1990(2) SA.

[4] 1993(1) SA 245 at page 246 to 247.

[5] Own emphasis