IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case Number: NCT/40232/2016/165(1)

In the matter between:

NEDBANK LIMITED

and

LUCIANO LESEGO KOENA MOKOENA

NONHLANHLA ELIZA MOKOENA

Coram:

PBeck

Ms H Devraj

F Sibanda

Date of hearing

APPLICANT

Presiding member

Member

Member

20 July 2016

JUDGMENT AND REASONS

APPLICANT

1•t RESPONDENT

2nd RESPONDENT

1. The Applicant in this matter is Nedbank Limited a company duly incorporated in accordance with the Company Laws of the Republic of South Africa and situated at 100 Main Street, Johannesburg, in the Gauteng Province ("the third Respondent").

2. The Applicants were represented at the hearing by an attorney, Nicholas van den Berg.

RESPONDENTS

3. The Respondents are all credit providers registered with the National Credit Regulator (hereinafter

referred to as "the Respondents").

Judgment Date: 31 August 2015

NCT /21781/2015/165(1)(P)

4. There was no appearance by any of the Respondents or a representative on their behalf at the

hearing.

APPLICATION TYPE

5. The Applicant brought an application in terms of Section 165(1) of the National Credit Act1 to the

Tribunal to vary the debt re-arrangement agreement order, which was granted by the Tribunal on

8 June 2014.

BACKGROUND

6. On 5 May 2014, the Applicant applied to the National Consumer Tribunal(" the Tribunal") for a debt

re-arrangement agreement to be confirmed as an order of the Tribunal in terms of Section 138(1)

of the Act, under case number NCT/19119/2014/138(1)(P). The Presiding member, Professor J

Maseko, granted the order on a June 2014.

7. During 22 February 2016, the Applicant brought an application in terms of Section 165(1) of the Act

to vary the debt re-arrangement agreement that was confirmed as an order of the Tribunal.

8. The Applicant submitted at the hearing that the order granted did not correctly reflect the debt re­

arrangement agreement between the parties in that it failed to reflect that the monthly instalment

and the interest rate was only applicable for the concession period of 58 months and not for the

entire settlement period of 310 months.

9. Accordingly, the order granted will not result in settlement of the debt and thus the Applicant

requires an amendment of the order to correctly reflect the debt re-arrangement agreement of the

parties. The correct terms of the agreement were therefore in error omitted from the order granted

and the order should therefore be varied to reflect this agreement.

APPLICABLE SECTIONS OF THE ACT

10. Section 138 of the Act, read with Section 86(8)(a), provides that if a debt counsellor makes a

recommendation in terms of section 86(7)(b), and the consumer and each credit provider

1 Act 34 of 2005 (hereinafter referred to "the Act") Page2of 6

Judgment Date: 31August2015

NCT /21781/2015/16S(l)(P)

concerned accepts the proposal, the debt counsellor must record the proposal in the form of an

order, and if it is consented to by the consumer and each credit provider concerned, file it as a

consent order in terms of Section 138 of the Act.

11. According to the Table in the Rules for the Conduct of Matters before the National Consumer

Tribunal, one of the filing requirements for a Section 138 application is "a signed copy of the

agreement reached between the parties to the dispute resolution, formulated as an order of the

Tribunal''.

12. The initial Application2 in May 2014 was filed as a consent order application in terms of Section

138(1) of the Act, which provides as follows:-

"Consent orders

138. (1) If a matter has been-

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

(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.•

13. The application currently before the Tribunal is in terms of Section 165(1)(c) of the Act.

which states the following:-

"Variation of order

165. 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) e"oneous/y 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

co"ecting that ambiguity, error or omission; or

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

CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS

2 NCT /13277 /2014/138( l)(P) Page 3 of 6

Judgment Date: 31August2015

NCT/21781/2015/lGS(l)(P)

14 During February 2016, the Applicant filed the application with the Tribunal. Subsequently a Notice of

Complete Filing was issued by the Registrar to both the Applicant and the Respondents on 7

April 2016.

15 The notice stated that the Respondents had to respond within 15 days by serving an answering

affidavit on the Applicant. The Respondents however failed to do so.

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

17 Rule 13(5) provides as follows:

"Any fact or allegation in the application or referral not specifically denied or admitted in the

answering affidavit, will be deemed to have been admittedn

18 Therefore, in the absence of any answering affidavit filed by the Respondent, the Applicant's

application and all of the allegations contained therein are deemed to be admitted.

CONSIDERATION OF THE EVIDENCE

19 The Tribunal considered the initial application for a consent order and the draft consent order

submitted by the Applicant which clearly contained the debt re-arranged agreement relating to the

3m Respondent.

20 The letter from the 3rd Respondent, dated 6 May 2014, accepting the proposed re-arrangement of

the loan repayment is also on the file. The letter was issued by Nedbank Limited.

21 The Tribunal is therefore satisfied that the proposed re-arrangement of the loan repayment in

relation to the Jm Respondent was agreed to and was correct on the initial application.

22 The agreed loan re-arrangement terms is however not reflected on the final order issued by the

Tribunal on 8 June 2014.

Page4of 6

Judgment Date: 31August2015

NCT/21781/2015/lGS(l)(P}

23 On a balance of probabilities, the only reasonable conclusion the Tribunal can draw is that the

complete loan re-payment terms, of the 3rc1 Respondent, was mistakenly omitted from the order

issued by the Tribunal.

CONSIDERATION OF THE LAW APPLICABLE TO THE EVIDENCE

24 Section 165(b) of the Act allows the Tribunal, acting of its own accord or on application by a person

affected by a decision or order, to vary or rescind its decision or order where there is an obvious

error or omission, but only to the extent of correcting that ambiguity, error or omission.

25. In the matter before the Tribunal the omission of the loan re-payment terms of the 3rc1 Respondent

can be regarded as an obvious omission falling within the ambit of section 165(b ).

26. The omission can be rectified by the issuing of an amended order confirming the debt re­

arrangement as an order of the Tribunal.

27. The Tribunal can note in passing that the provisions of section 165 and the circumstances of the

matter would have permitted the Presiding member who granted the initial order (Professor J

Maseko), to rectify the omission by issuing a new order without the need for an application for

variation. Had the NCT Registrar alerted Prof J Maseko to the omission he would have been in a

position to issue an amended order. The Tribunal also notes that the consent to debt re­

arrangement handed up to the Tribunal on the day of the hearing bears the date 28 February 2014

and not the date of the consent to the debt -re-arrangement considered by the Presiding member

on the day the order was initially granted, although the contents are the same.

28. The Tribunal also noted that the initial order that was granted by the Tribunal on 19 June 2014 had

other omissions that needed to be rectified. The Tribunal therefore, rectified these omissions on its

own accord. The omissions relate to the table of the consent order, which does not reflect the full

names of the parties in row 9-11. The parties have therefore been cited in full in the varied consent

order attached as Annexure A.

Page5 of 6

ORDER

29. Accordingly, the Trtbunal makes the following order:-

29.1 The application to vary the order dated 8 June 2014 is granted.

Judgment Date: 31August2015

NCT/21781/2015/165{1)(P)

29.2 The amended order confirming the debt re-arrangement as an order of the

Tribunal is attached as annexure "A"

29.3 No order as to costs.

DATED ON THIS 28111 DAY OF JULY 2016

(Signed)

PBeck

Presiding Member

Ms H Devraj (Member) and Mr FK Sibanda (Member) concurrtng)

Authorised for iss ie b ';s} ~ Jatrona/ Cons

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Page &of 6

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NCT /19119/2014/138(1) (P)

ANNEXUREA

IN THE NATIONAL CONSUMER TRIBUNAL

HELD AT CENTURION

Case number: NCT/19119/20141138(1) (P)

In the matter between:

LUCIANO LESEGO KOENA MOKOENA ID: 810715824083

AND

NONHLANHLA ELIZA MOKOENA ID : 8402010781086

And

MFC DIVISION OF NEDBANK LIMITED FIRST RAND BANK LIMITED NEDBANK LIMITED FIRST NATIONAL BANK A DIVISION OF FIRST RAND BANK LIMITED WONGA FINANCE SA (PTY) LIMITED AFRICAN BANK LIMITED FINCHOICE (PTY) LIMITED HOMECHOICE (PTY) LIMITED STANDARD BANK OF SOUTH AFRICA LIMITED EDCON (PTY) LIMITED CAPFIN (PTY) LIMITED CAPITEC BANK LIMITED

CONSENT ORDER

1st Applicant I Consumer

2"d Applicant I Consumer

1•• Credit Provider 2nd Credit Provider 3n1 Credit Provider 4111 Credit Provider 5111 Credit Provider 6111 Credit Provider 7111 Credit Provider 8111 Credit Provider 9*11 Credit Provider 10tti Credit Provider 11111 Credit Provider 12111 Credit Provider

An order granting the debt re-arrangement was made an order of the Tribunal and issued on 8 June 2014. An application was lodged on 22 February 2016 to vary the order granted on 8 June 2014 and upheld on 20 July 2016.

Accordingly, the Tribunal, having read the papers filed of record and being satisfied that the Applicant(s) and The Respondent(s) are parties to a debt re-arrangement facilitated by a debt coun~ellor under section 86(7)(b) read with section 138(1) of The National Credn Act, Act 34 of 2005 (the Act), hereby makes the following order:

Page 1of3

NCT /19119/2014/138(1) (P)

The payment structure between the consumer(s) and the credit provide~s) is confirmed as an order of the Tribunal in terms of section 150 of the Act.

Creditor Account Annual Monthly Balance Estimated Monthly fee reference Interest Instalment repayment

rate term In months

MFC a Division 44082220001 6.00% R1 890.80 R123047.50 67 of Nedbank Limited First Rand Bank 85191995613 8.18% R657.11 R28 707.86 52 linited Nedbank Limited 8001282419201 6.50% R4118.81 R610 815.31 58 months

concession period

First Rand Bank 4303430033804001 6.75% R447.23 R20 899.36 55 Limited

Nedbank Limited 6001288847801 4.46 R1 389.39 R50 741 .59 55

Wonga Finance LA253646 0.01 R74.78 R3 905.83 52 (SA)(Pty) linited African Bank 5404381E002 7.30 R170.85 RS 424.11 52 Limited FinCholce (Pty) 8402100781086 13.91 R234.58 R5 483.44 1 Limited

R199.48 35

Home Choice 240359368 0.00 R97.28 R3105.72 33 (PM Limited First National 4000028625717 8.79 R1 209.00 R47 392.74 57 Bank Standard Bank of 5104323340480474 6.02 R205.02 R9 867.34 55 South Africa Limited Edcon (Pty) Ltd 7000100100058084740 8.75 R226.98 R10 568.46 54

R109.15 1

Capfin (Pty) Ltd C1696682 13.55 R100.84 R3 898.25 55

Capitec Bank 1360834395 8.38 R1784.92 R76 900.71 55 Limited Nedbank Limited 1305874186 4.46 R72.53 R243.94 32

The parties' attention is drawn to sections 71(1), 71(5)(a) and 152 of the Act which states as follows:

Page 2of3

NCT /19119/2014/138{1) (P)

Section 71(1) A consumer, whose debts have been re-arranged in terms of part D of this chapter, may apply to a debt counsellor at any time for a clearance certificate.

Section 71(5) Upon receiving a copy of a clearance certificate, a credit bureau, or the national credtt register must expunge from its records the fact that the consumer was subject to the relevant debt re-arrangement order or agreement.

Section 152

Any decision, judgment or order of the Tribunal may be served, executed and enforced as if it were an order of the High Court.

The parties are warned that failure to comply with the order of the Tribunal constttutes an offence in terms of section 160(1) ofthe Act

Dated at CENTURION on the 2811 day of July 2016

(Signed) PA BECK

Presiding Member National Consumer Tribunal

Naliona/ Consumer Trif:· 111 I

H Oevraj (Member) and F Sibanda (Member) concofflt1gl Floor. Bt1ild111!:J :·!­Lakefield Office Park

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272 West Avenue, Ccnw (,1

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