South Africa: National Consumer Tribunal Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: National Consumer Tribunal >> 2020 >> [2020] ZANCT 14

| Noteup | LawCite

Nonyane v Motor Finance Corporation, a Division of Nedbank Limited (NCT/156605/2020/141(1)(b)) [2020] ZANCT 14 (18 November 2020)

Download original files

PDF format

RTF format


IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/156605/2020/141(1)(b)

In the matter between:

PRECIOUS BAGOLOFELE NONYANE                                                 APPLICANT

And

MOTOR FINANCE CORPORATION, A DIVISION OF

NEDBANK LIMITED                                                                          RESPONDENT

Coram

 

Ms P Beck                - Presiding Member

Adv J Simpson         - Tribunal Member

Prof K Moodaliyar    - Tribunal Member

Date of Hearing       - 28 October 2020


JUDGMENT AND REASONS


THE PARTIES

1. The Applicant in this matter is Precious Bagolofele Nonyane, an adult female, residing in Centurion, Gauteng (the “Applicant” or “Ms Nonyane”).

2. The Respondent is the Motor Finance Corporation, a division of Nedbank Limited (the “Respondent” or “MFC”) with its principle place of business at 6E Herman Road, Corner Corobrick Road, Meadowdale, Edenvale, Gauteng. At the hearing MFC was represented Ms Madelein Van Der Walt of VHI Attorneys.


APPLICATION TYPE

3. This is an application in terms of Section 141(1) of the National Credit Act, Act 34 of 2005, (“the NCA”).

4. Section 141(1) of the NCA states the following –

141. Referral to Tribunal.(1) If the National Credit Regulator issues a notice of non referral in response to a complaint other than a complaint concerning section 61 or an offence in terms of this Act, the complainant concerned may refer the matter directly to—

(a) the consumer court of the province within which the complainant resides, or in which the respondent has its principal place of business in the Republic, subject to the provincial legislation governing the operation of that consumer court; or

(b) the Tribunal, with the leave of the Tribunal.


BACKGROUND

5. In September 2016, Ms Nonyane applied to MFC for vehicle finance, which was approved on or about 20 September 2016.  Two months later she realised that she could not make the payments as she was over-indebted.  She had subsequently applied for a debt review to assist as she could not meet the payments for her accounts.

6. On or about 14 January 2020 Ms Nonyane lodged a complaint against MFC with the National Credit Regulator (“NCR”) alleging that the loan was granted recklessly. On 14 February 2020, the NCR issued a notice of non-referral stating that MFC had not granted the loan recklessly. The notice further stated that the complaint could not be referred as more than three years had elapsed since the loan was granted. Therefore, the NCR was therefore not prepared to take the matter any further.

7. Ms Nonyane lodged this current application with the Tribunal and the Tribunal issued a notice of complete filing which was emailed to the parties on 16 March 2020. The Respondent filed an answering affidavit on 8 June 2020. On 18 August 2020, Ms Nonyane filed the replying affidavit to the answering affidavit.

8. The matter was then set down for a hearing on the leave to refer. This judgment deals with the application for leave to refer.


THE HEARING

9. The hearing was conducted via Zoom audio and video transmission.

10. Ms Nonyane made numerous submissions regarding the loan being granted recklessly by MFC. For the purposes of this judgment it is not necessary to reflect all the allegations made. In summary, Mr Nonyane alleges that at the time of processing the credit agreement, the Respondent did not have due regard to all the information contained in the documentation she provided.  She alleges that the Respondent selectively considered information in her bank statements and that they should have picked up from those statements that she had expenses such as rental payments.

11. The Respondent argued that Ms Nonyane could not provide evidence in support of her allegations. She did not provide a calculation of the shortfall amount directly after the credit agreement with MFC was concluded. Ms Nonyane only provided a hand- written note listing her living expenses, which note was generated by her after the fact and not produced at the point in time at which the credit agreement was concluded.  In addition, the credit agreement was signed and initialled by Ms Nonyane and at the time she did not dispute the information regarding her living expenses on that application.

12. The Respondent raised the issue that the agreement, concluded on 20 September 2016, had prescribed, as the agreement was concluded more than three years and three months before Ms Nonyane approached the NCR with her complaint. The Tribunal requested Ms Nonyane to address it regarding the possible prescription of the claim and her response was that she only realised that she could approach the NCR much later on. 

 

APPLICATION FOR LEAVE

13. In terms of section 141(1) of the NCA, the Applicant may only refer the matter directly to the Tribunal with leave of the Tribunal.

14. In determining whether the Applicant should be granted leave to refer the matter directly to the Tribunal, the Tribunal must consider the requirements for the granting of “leave”.

15. In Westinghouse Brake and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd[1] it was held that-

In applications for leave to appeal properly brought before the appropriate court in terms of the old sec 20, read with sec 21 as it then was, the only relevant criteria were whether the applicant had reasonable prospects of success on appeal and whether or not the case was of substantial importance to the applicant or to both him and the respondent.”

16. The Tribunal will therefore, when considering whether to grant the Applicant leave to refer the matter or not, use the same test as applied in the High Court for applications for “leave” and will consider:

16.1 the Applicant’s reasonable prospects of success with the referral; and

16.2 whether the matter is of substantial importance to the Applicant, the Respondent or both.

17. It is firstly very clear that the matter is of substantial importance to both parties. Ms Nonyane has pursued the matter through the NCR and the Tribunal. MFC has a substantial interest in refuting the allegation of reckless lending.

18. The Applicant lodged the complaint with the NCR too late. The loan was granted on 20 September 2016, the application was only lodged with the NCR on 14 January 2020, approximately 3 years and 3 months later. Section 166[2] of the NCA states that a complaint may not be referred or made to the Tribunal more than three years after the act or omission took place. The allegation of reckless lending arose in September 2016, when the loan was granted, the Applicant had until September 2019 to lodge the complaint with the NCR.

19. In any event, Ms Nonyane‘s submissions regarding reckless lending are not convincing. She provided the financial information requested at the time, and she chose not to provide all the information regarding her living expenses when the agreement was concluded. The affordability of the loan is based on the information provided at the time the loan is applied for. Ms Nonyane cannot submit further financial evidence years later.  It is unlikely that the Tribunal would have taken this matter further, even if the matter had not prescribed.

 

CONCLUSION

20. The Tribunal finds that there is no reasonable prospect of Ms Nonyane succeeding in her claim against MFC, as the application has prescribed in terms of section 166 of the NCA.

 

ORDER

21. Accordingly, the Tribunal makes the following order –

21.2 The Applicant’s application for leave to refer the matter directly to the Tribunal is refused; and

21.3 There is no order as to costs.

THUS DONE IN PRETORIA ON THIS 18th DAY OF NOVEMBER 2020

 

[signed]

Prof. K Moodaliyar

Member

 

 

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


[1] 1986 (2) SA 555 (A). Also see Coertze and Burger v Young NCT/7142/2012/75(1)(b)&(2)

[2] 166. Limitations of bringing action.(1) A complaint in terms of this Act may not be referred or made to the

Tribunal or to a consumer court more than three years after—

(a) the act or omission that is the cause of the complaint; or

(b) in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.