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[2020] ZANCT 22
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Capitec Bank Ltd v Alexanderson and Others (NCT/155298/2020/165(1)) [2020] ZANCT 22 (29 October 2020)
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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/155298/2020/165(1)
In the matter between:
CAPITEC BANK LTD APPLICANT
And
SEBASTIEN ALARIK ALEXANDERSON 1ST RESPONDENT/
DEBT COUNSELLOR
And
PULANE PERPETUA MOTUBATSE
([…]) 2ND RESPONDENT/
CONSUMER
And
HOME CHOICE (PTY) LTD 3rd RESPONDENT
Coram:
Prof K Moodaliyar - Presiding Tribunal Member
Adv J Simpson - Tribunal Member
Ms P Beck - Tribunal Member
Date of Hearing - 28 October 2020
Date of Judgment - 29 October 2020
JUDGMENT AND REASONS
APPLICANT
1. The Applicant in this matter is Capitec Bank Ltd, a registered credit provider with registration number NCRCP 13 (the "Applicant" or "Capitec").
2. At the hearing of the matter, the Applicant was represented by Ms Kagiso Mokgosi, an attorney from Hammond Pole Attorneys.
RESPONDENTS
3. The 1st Respondent is Sebastien Alarik Alexanderson, a registered debt counsellor with registration number NCRDC 2351.
4. The 2nd Respondent is Pulane Perpetua Motubatse, the consumer under debt review.
5. The 3rd Respondent is Home Choice (Pty) Ltd, a credit provider, with its principal place of business at 78 Main Road, Wynberg, Western Cape (collectively referred to as "the Respondents").
APPLICATION TYPE
6. This is an application in terms of Section 165 of the National Credit Act, 2005 (NCA) to rescind the debt re-arrangement agreement; which was made an order of the Tribunal on 22 May 2019 under case number NCT/129371/2019/138(1).
CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS
7. On 12 September 2019, the Applicant filed the application with the Tribunal. The application was served on the Respondents by registered post on 27 February 2019. On 28 February 2020 the Tribunal's Registrar issued a notice of filing to all the parties.
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. However, the Respondents failed to do so.
9. The Applicant did not file an application for a default order in terms of Rule 25(2).
10. On 9 September 2020, the Tribunal's Registrar issued a notice of set down to all the parties setting the matter down for hearing on a default basis for 28 October 2020, due to the pleadings being closed.
11. On the date of the hearing, the Respondent’s attorney, Ms Robyn Gertze, made an appearance but was not on record. She informed the Tribunal that she was present to observe the proceedings. 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 affidavits filed by the Respondents, the Applicant's application and all of the allegations contained therein are deemed to be admitted.
BACKGROUND
14. The Applicant submitted that the order issued on 22 May 2019 was erroneously applied for by the debt counsellor.
15. The Consumer entered into three loan agreements with account numbers […]76, […]43 and […]34 with the Applicant pursuant to which the Consumer was lent and advanced monies which the consumer was obliged to repay as provided for in the agreement. The Consumer had difficulty honouring the repayment terms of the credit agreement and as a result thereof, the consumer applied for debt review.
16. Prior to the granting of the order by the Tribunal, the Applicant instructed its attorneys of record, being Hammond Pole Attorneys to oppose the matter as the client was terminated prior to the NCT application being issued and requested for the accounts to be excluded.
17. On 7 May 2019, a notice of intention to oppose was served by the Applicant. The Applicant requested that a consent order not be granted due to the termination and that the opposing affidavit would be served as soon as possible since same was still with Capitec bank for signature.
18. The consent order was granted by the NCT on 22 May 2020 as there was no record of the notice intention to oppose in the documentation relied upon to make such order.
19. The Applicant requests a recission of the section 138(1) order in so far as it relates to Capitec and specifically in respect of account numbers […]76, […]43 and […]34.
CONSIDERATION OF SECTION 165 OF THE ACT
20. 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." Section 165 further prescribes that such a rescission or variation may only be granted in the following instances:
20.1 When the order of the Tribunal had been erroneously sought or granted in the absence of a party affected by it;
20.2 There is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or
20.3 Made or granted as a result of a mistake common to all the parties to the proceedings.
These grounds will be detailed under separate headings:
21. 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', 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."
22. 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.
23. 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.
CONSIDERATION OF THE EVIDENCE
24. The Applicant filed a notice of intention to oppose on 7 May 2019, which was not provided to the Tribunal panel member when considering the evidence, before granting the order on 22 May 2019.
25. Under these circumstances, the debt counsellor would have been aware that the credit provider no longer consented to the order and should have withdrawn the application. Therefore, the debt counsellor brought the application erroneously.
ORDER
26. Accordingly, the Tribunal makes the following order:-
26.1 The application to rescind the order is granted. The order made on 22 May 2019 under case number NCT/129371/2019/138(1) is hereby rescinded; and
26.2 There is no order made as to costs.
Thus done and signed at Centurion on 29 October 2020.
{signed}
Prof. K Moodaliyar
Presiding Tribunal Member
Adv. J Simpson (Tribunal Member) and Ms P Beck (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.