South Africa: National Consumer Tribunal Support SAFLII

You are here:  SAFLII >> Databases >> South Africa: National Consumer Tribunal >> 2024 >> [2024] ZANCT 10

| Noteup | LawCite

Laas v Absa Bank Limited and Others (NCT-324154-2024-148(1)) [2024] ZANCT 10 (19 July 2024)

Download original files

PDF format

RTF format


 

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case Number: NCT-324154-2024-148(1)

 

In the matter between:


 


ALBERTUS JACOBUS LAAS (NCRDC2534)

APPELLANT

 


On behalf of


 


SHAUN JONKER

FIRST CONSUMER

ADEL JONKER

SECOND CONSUMER

 


and


 


ABSA BANK LIMITED

FIRST RESPONDENT

BURNARD, RAAF AND ASSOCIATES

SECOND RESPONDENT

MFC, A DIVISION OF NEDBANK LIMITED

THIRD RESPONDENT

NEDBANK LIMITED

FOURTH RESPONDENT

RCS CARDS (RCS CARDS (PTY) LTD

FIFTH RESPONDENT

ON BEHALF OF EDCON (PTY) LTD


 


RCS CARDS (PTY) LTD

SIXTH RESPONDENT

 

Coram:

 

Dr A Potwana               - Presiding Tribunal member

Ms Z Ntuli                    - Tribunal member

Adv C Sassman            - Tribunal member

 

Date of hearing            - 18 July 2024

Date of judgment         - 19 July 2024

 

APPEAL JUDGMENT AND REASONS

 

THE APPELLANT

 

1.            The appellant is Albertus Jacobus Laas (the appellant), a registered debt counsellor, in terms of section 44(1) of the National Credit Act 34 of 2005 (NCA), with registration number NCRDC2534. The appellant trades under the business name, Triangle Financial Hub.

 

2.            The appellant is acting on behalf of two consumers who applied for debt review with him, namely Shaun and Adel Jonker (the consumers).

 

3.            At the hearing, the appellant represented himself.

 

4.          The first, third, fourth, fifth, and sixth respondents are credit providers as defined in section 1 of the NCA. The second respondent is a collecting agent of another credit provider. None of the respondents were represented at the hearing.

 

TERMINOLOGY

 

5.          A reference to a section in this judgment refers to a section of the NCA.

 

6.          A reference to a rule in this judgment refers to the Rules of the National Consumer Tribunal[1] (the rules).

 

APPLICATION TYPE

 

7.          This is an application in terms of section 148(1), in which the appellant, having been a participant in a matter adjudicated by a single member of the Tribunal, seeks to appeal the decision of the single member to a full panel of the Tribunal.

 

8.          The respondents have not opposed the application, and it is accordingly considered on an unopposed basis.

 

BACKGROUND

 

9.            On 28 July 2023, the consumers applied for debt review with the appellant. The appellant facilitated a debt restructuring plan and filed an application with the Tribunal for a consent order in terms of section 138(1). On 22 February 2024, the application was refused by a single member of the Tribunal because it did not meet the requirements of Circular 7[2]. In particular, the refusal was based on a determination that the appellant’s power of attorney did not comply with paragraphs 2.4(e) and (f) of Circular 7.

 

10.        The single member found that the appellant’s power of attorney did not indicate that the consumers had authorised him to sign the application to the Tribunal on their behalf. Although the appellant’s name and debt counselling registration number were listed at the bottom of the document, it did not indicate that the appellant was the recipient of the consumers’ authorisation. Instead, the appellant’s business, Triangle Financial Hub, was given authorisation to act on behalf of the consumers.

 

11.        The appellant seeks an order setting aside the ruling of the single member. Alternatively, he seeks an order allowing him to refile the application without paying a filing fee.

 

THE HEARING

 

12.          At the hearing, the appellant submitted that the same power of attorney document had successfully been used in previous applications to the Tribunal without any objection. Refiling of applications to the Tribunal is costly for consumers. The appellant conceded that the requirements for Circular 7 were not clearly covered in the power of attorney submitted as part of his application for a consent order. The appellant has since sought legal advice and amended the document by placing it on a letterhead and ensuring that the power of attorney is granted to him in his capacity as a debt counsellor and not to his business.

 

CONSIDERATION

 

13.          Section 148(1) provides that a participant in a hearing before a single member of the Tribunal may appeal a decision by that member to a full panel at the Tribunal.

 

14.          Paragraphs 2.4(e) and (f) of Circular 7 require consumers to authorise a registered debt counsellor to act on their behalf in signing an application to the Tribunal for a consent order. The debt counsellor’s full name and registration number must be indicated as the recipient of the authorisation to act on behalf of the consumer. The authorisation cannot be provided to the business under which the debt counsellor trades. This is so because only a natural person may apply to be registered as a debt counsellor[3]. Debt counsellors are, therefore, tasked with fulfilling their prescribed statutory duties under the NCA in their registered capacity.

 

15.          Members adjudicating applications for consent orders in debt review matters have judicial discretion to grant or refuse applications. An order may, on occasion, be granted despite the application not fully complying with the required standards, but this will not always be so.

 

16.          The Tribunal remains aware of the cost implications for consumers and debt counsellors when filing applications for consent orders. These costs are further exacerbated when an application is refused and must be refiled. However, applicants need to observe all the required standards for applications.

 

CONCLUSION

 

17.          The Tribunal is persuaded that the appellant did not have the necessary authority to act on behalf of the consumer and file an application for a consent order with the Tribunal. The single member adjudicating the application acted accordingly by applying his judicial discretion to refuse the application. Therefore, the appeal cannot succeed and must be dismissed.

 

ORDER

 

18.      Accordingly, the Tribunal makes the following order:

 

18.1           The appeal is dismissed; and

 

18.2           There is no cost order.

 

Adv C Sassman Tribunal member

 

Presiding Tribunal member Dr A Potwana and Tribunal member Ms Z Ntuli concur.

 



[1] Published under GN 789 in GG 30225 on 28 August 2007 as amended by GN 428 in GG 34405 on 29 June 2011, GN R203 in GG 38557 on 13 March 2015 and GN 157 in GG 39663 on 4 February 2016.

[2] Circular 7 – checklist for debt re-arrangement applications – 7 May 2018.

[3] Section 44(1).