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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case Number: NCT/336592/2024/141(1)(b)

 

In the matter between:
ANDREA AAHNISAH HOSKINS	APPLICANT
and
BMW FINANCIAL SERVICES (SOUTH AFRICA)
(PTY) LTD	1ST RESPONDENT
NATIONAL CREDIT REGULATOR	2ND RESPONDENT

 

Coram:
Dr MC Peenze	Presiding Tribunal member
Mr CJ Ntsoane	Tribunal member
Ms N Maseti	Tribunal member
Date of hearing	19 February 2025
Date of ruling	20 February 2025

 

LEAVE TO REFER - RULING AND REASONS

 

THE APPLICANT

 

1.            The applicant is Andrea Aahnisah Hoskins (the applicant), an adult female, defined as a consumer in section 1 of the National Credit Act 34 of 2005 (NCA).

 

2.            The first respondent is BMW Financial Services (South Africa) (Pty) Ltd (the first respondent or BMW), duly incorporated under the company laws of South Africa. The first respondent is a credit provider, as defined in section 1 of the NCA.

 

3.             The second respondent is the National Credit Regulator (the NCR), an administrative body established under section 12 of the NCA, with its registered address at 127 15th Road, Randjespark, Midrand, Johannesburg, Gauteng.

 

APPLICATION TYPE

 

5.              This is an application in terms of section 141(1)(b) of the NCA, in which the applicant, having received a notice of non-referral from the NCR, seeks leave to refer the matter directly to the Tribunal for adjudication. The Tribunal has jurisdiction to consider this application in terms of section 27(a) of the NCA.

 

6.              The first respondent has opposed the application.

 

TERMINOLOGY

 

7.              A reference to a section in this ruling refers to a section of the NCA unless indicated otherwise. A reference to a regulation refers to the NCA Regulations, 2006 (the regulations),[1] and a reference to a form refers to the prescribed forms set out in Schedule 1.

 

8.              A reference to a rule refers to the Tribunal Rules.[2]

 

BACKGROUND

 

9.              The applicant alleges that the first respondent granted her credit (vehicle finance) without considering her income, expenses, other debts, and financial obligations. She believes the credit was granted recklessly.

 

10.          As per the copy of the credit agreement dated 21 October 2021 (vehicle finance agreement), the first respondent advanced credit for R787,735.50 in purchasing a motor vehicle (BMW 2181 Gran Coupe M Sport), with an estimated monthly repayment of R11,657.94.

 

11.          From June 2022 onwards, the applicant defaulted on her obligations to pay the monthly instalment on the credit agreement.

 

12.          After several attempts by the parties to resolve the matter, the first respondent proceeded with enforcement action and issued a summons against the applicant in the Johannesburg High Court under case number 2022/040558. The summons was served on 28 November 2022 per the sheriff's return of service, dated 30 November 2022.

 

13.          On 8 February 2023, the applicant filed a complaint with the NCR, alleging that the first respondent advanced her credit recklessly without considering her income, expenses, and other debts and financial obligations.

 

14.          On 3 April 2024, a notice of set down, together with a request for judgment in terms of High Court Uniform Rule 31(1), was served on the applicant. On 18 April 2024, the Johannesburg High Court granted default judgment and issued a warrant of attachment and delivery of goods. Despite the court order, the applicant retained the vehicle.

 

15.          On 12 June 2024, the NCR issued a non-referral notice stating that it had no jurisdiction to resolve this complaint, as the Johannesburg High Court had finalised it.

 

16.          The applicant filed an application under section 141(1)(b) with the Tribunal on 9 July 2024 and served it on the respondents on 13 August 2024. The Registrar issued a notice of complete filing on 14 August 2024. The NCR did not file an answering affidavit, and BMW filed its answering affidavit by e-mail on 3 September 2024. Condonation for the late filing of BMW’s answering affidavit was granted on 20 December 2024.

 

APPLICABLE PROVISIONS OF THE NCA

 

17.          Section 141(1)(b) states that an applicant may apply to the Tribunal in the prescribed manner and form for leave to bring a complaint directly before the Tribunal.

 

18.          Section 81(2)(a) states that a credit provider must not enter into a credit agreement without taking reasonable steps to assess the consumer’s general understanding and appreciation of the risks, costs, rights and obligations under the proposed credit agreement. The credit provider must further assess the consumer’s debt repayment history and existing financial means, prospects and obligations.

 

LEAVE TO REFER HEARINGS

 

19.          Previously, the Tribunal held formal hearings for leave to refer applications to the Tribunal, and all the parties would be present. In Lewis Stores (Pty) Ltd v Summit Financial Partners (Pty) Ltd and Others[3], the court provided helpful guidance to the Tribunal in making decisions regarding leave to refer applications. It held that a formal hearing for leave to refer applications was unnecessary and that there was no test to be applied. The court further held that the Tribunal’s decision to grant the applicant leave to refer the matter could not be appealed.

 

19.          The court also held that the NCA provides for an expeditious, informal, and cost- effective complaints procedure and that section 141(1)(b) confers a broad, largely unfettered discretion to permit a direct referral on the Tribunal. The purpose of the provision is simply for the Tribunal to consider the complaint afresh, with the benefit of any findings made by the Regulator, and to decide whether the complaint deserves the Tribunal’s attention. Circumstances that may influence the Tribunal’s decision may include the prospects of the applicant’s success, the importance of the issue, the public interest to have a decision on the matter, the allocation of resources, the applicant’s interest in the relief sought, and the fact that the NCR found that the complaint lacked sufficient merit to necessitate a hearing before the Tribunal.

 

20.          As no test is to be applied, the Tribunal will consider the matter in the general context of the circumstances submitted by the applicant.

 

CONSIDERATION

 

22.          The applicant alleges that the first respondent acted recklessly and failed to conduct an assessment as required in terms of section 81(2)(a) when approving her credit application in 2021. This complaint was registered with the NCR after the first respondent filed a summons in the Johannesburg High Court. The delay by the NCR in finalising the complaint resulted in the High Court proceedings continuing, and a final court order was issued in April 2024. Given that the matter had already been considered and ruled upon by the High Court, the matter before the Tribunal is res judicata.

 

23.          The High Court judgment was issued after both parties had the opportunity to file pleadings. To the extent that the consumer chose not to defend the matter, it may be that the High Court did not consider allegations of reckless lending. However, as the High Court ruled on the amount due and the consumer’s failure to honour the agreement, a competent forum has considered the cause of action. Any subsequent ruling by the Tribunal regarding reckless lending will impact the High Court’s judgment, which goes against the principle of res judicata.

 

24.          The underlying notion is that there should be finality in litigation. Once a body competent to adjudicate upon a suit has brought such suit to its conclusion, the suit will not be permitted to be revived once it has been brought to its proper conclusion.[4] The same suit, between the same parties, should be brought only once and finally.

 

ORDER

 

25.      Accordingly, the Tribunal makes the following order:

 

25.1            The application for leave to refer is refused; and

 

25.2  There is no cost order.

 

Dr MC Peenze

Presiding Tribunal member

 

Tribunal members Mr CJ Ntsoane and Ms N Maseti concur.

 

 

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