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IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

Case number: NCT/38083/2016/140(1)

DATE: 29 JULY 2016

In the matter between:

NATIONAL CREDIT REGULATOR..............................................................................APPLICANT

And

MAGDEL & TIA FINANCIAL SERVICES................................................................RESPONDENT

t/a IMPALA CASH LOANS

Coram:

Adv J Simpson – Presiding Member

Ms P Beck – Tribunal Member

Prof B Dumisa – Tribunal Member

Date of Hearing: 21 July 2016 (originally scheduled for 29 July 2016)

JUDGMENT AND REASONS

(and A SETTLEMENT AGREEMENT between the Parties)

THE APPLICANT

1. The Applicant in this matter is the National Credit Regulator (“the NCR” or “the Applicant”), a juristic person established in terms of Section 12 of the National Credit Act, 2005 (“the Act”).

2. The Applicant’s Founding Affidavit, dated the 25^th of January 2016, is deposed to by Jacqueline Boucher (“Boucher”), in her capacity as the Manager of Investigations and Enforcement unit of the Applicant.

THE RESPONDENT

3. The Respondent is Magdel EN TIA Financial Services cc t/a Impala Cash Loans, a close corporation registered in the Republic of South Africa with company registration number 2001/058764/23, and is also a registered credit provider with the NCR with registration number NCRCP202[1] “the Respondent.”

4. The Respondent has its place of business at 131 St Andrew Street, Terra Nova Building, Bloemfontein, in the Free State Province.

5. The Respondent‘s answering affidavit dated 18 March 2016; was deposed by Ms Aletta Christina Botes, who is the Manager for the Respondent.

THE ISSUE TO BE DECIDED

6. This is an application in terms of Section 140(1) of the Act. This complaint is contained in a referral contained in National Credit Regulations Form 32, (page 1-5 of case file); signed by Jacqueline Boucher, a Manager: Investigations and Enforcement of the Applicant, on 25 January 2016.

7. According to referral to the Tribunal by Boucher dated 25 January 2016.; the issues to be decided in this case, are, therefore:

7.1 Whether the Respondent contravened section 80(1) of the NCA

7.2 Whether the Respondent contravened section 81(2)(a) of the NCA;

7.3 Whether the Respondent contravened section 81(3) of the NCA;

7.4 Whether the Respondent contravened section 91(a) of the NCA;

7.5 Whether the Respondent contravened section 100 of the NCA;

7.6 Whether the Respondent contravened section 101(1)( c) of the NCA

7.7 Whether the Respondent contravened section 102 of the NCA; and

7.8 Whether the Respondent contravened Regulation 44 of the NCA.

PRAYERS OF THE APPLICANT

8. In the event that the Tribunal finds against the Respondent, the Applicant has also prayed for:

8.1 The Tribunal to then declare that the Respondent has repeatedly contravened the Act as catalogued above, which amounts to prohibited conduct in terms of section 150(a) of the Act.

8.2 An order interdicting the Respondent from committing future breaches of the Act.

8.3 An order imposing an administrative fine against the Respondent in the sum of R1 000 000, 00 (one million South African Rand).

8.4 Any further / alternative relief that the Tribunal may consider appropriate to give effect to the consumer’s rights in terms of the Act in line with section 150(i) of the Act.

JURISDICTION OF THE TRIBUNAL

9. This Tribunal has the requisite jurisdiction to deal with this matter. Section 27 of the Act confers the Tribunal or a member of the Tribunal acting alone in accordance with this Act the jurisdiction and discretion to:

(a) adjudicate in relation to any-

(i) application that may be made to it in terms of this Act, and make any order provided for in this Act in respect of such an application; or

(ii) allegations of prohibited conduct by determining whether prohibited conduct[2] has occurred and, if so, by imposing a remedy provided for in this Act;

(b) grant an order of costs in terms of section 147; and

(c) Exercise any other power conferred on it by law.”

BACKGROUND

10. On 26 February 2015, the Applicant initiated the complaint against the Respondent in terms of section 136(2) of the NCA.[3]This initiation was signed (approved) by the Chief Executive Officer on the same day the 26^th February 2015.

11. From the founding Affidavit deposed by Boucher, the Applicant avers that the Applicant initiated a complaint as part of an investigation into the compliance of credit providers in the Bloemfontein area. The investigation, by Sphiwe Mashaba, revealed that the Respondent had contravened the Act by committing conduct prohibited by the Act.

12. The parties subsequently exchanged pleadings in the form of an answering affidavit from the Respondent and a reply from the Applicant. In its answering affidavit, the Respondent raised both substantive as well as general denials of most allegations. They (the Respondent) were very scathing of the Applicant’s founding affidavit, noting “The full contents of the founding affidavit is hearsay evidence. Although the deponent alleges that the contents of her affidavit fall within her personal knowledge, it is far from the truth. She makes her own inferences from the documentation which is worthless if she does not consider the surrounding facts of which she knows absolutely nothing”.

12.1 In its answering affidavit, the Respondent raised many fairly substantive as well as general denials to most allegations. Some of their criticisms of the contents of the founding affidavit were:

12.1.1 It makes many baseless assertions and a lot of accusations that are simply argumentative;

12.1.2 It does not contain a clear charge sheet supported by evidence to which the Respondent can plead;

12.1.3 They said they just found the founding affidavit “vague and embarrassing”. 

12.1.4 and even accused the Applicant of improperly getting the search warrant from a Magistrate under false pretences.

12.2 On its side, the Applicant’s Replying Affidavit simply restated most of the things already dealt with in the Founding Affidavit.

THE LAW ON THE MATTER

13. Save for the few legal technicalities raised by the parties in their exchange of papers, the matter was ripe for a hearing on the 29^th of July 2016.

14. Three Tribunal Members were ready to hear this matter, and had already applied their minds to all the relevant legislation applicable to it, including the appropriateness or otherwise of some of the Applicant’s prayers and some of the Respondent’s written submissions.

SETTLEMENT AGREEMENT

15. This matter was strategically brought forward from the 29^th July 2016 to the 21^st of July 2016, because there were two other similar matters already scheduled for the 21^st July 2016 where the Applicant had already reached some settlement with the Respondents. It was therefore cost-effective for this matter to be brought forward in order to be dealt with together with other similar matters. 

16. At the hearing of the 21^st July 2016, the parties presented the Tribunal with a settlement agreement concluded out of court. The Tribunal examined the contents in chambers and concluded that the agreement met the requirements of bringing the content under the jurisdiction of the Tribunal. The parties had also agreed to apply to make the settlement agreement an order of the Tribunal, with leave of the Tribunal. This therefore, curtailed the matter from having to examine evidence and make a judgment on that basis.

ORDER

17. In the light of the abovementioned agreement and the conclusion by the Tribunal that the agreement meets the standard to locate its content within the jurisdiction of the Tribunal, it is hereby ordered that the settlement agreement between the parties dated 21 July 2016 (attached hereto and manually labelled “Annexure A”), is made an order of the Tribunal.

18. There is no order as to costs and none has been requested.

Thus done and handed down at Centurion this 21^st Day of July 2016

Prof B. Dumisa

TRIBUNAL MEMBER & Deputy Chairperson

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

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