---

 

IN THE NATIONAL CONSUMER TRIBUNAL

HELD IN CENTURION

 

Case number: NCT-342961-2024-Section 141(1)(b)

 

In the matter between:
SLADE KLEYNHANS	APPLICANT
and
PHILIPPUS JOHANNES VAN ZYL	FIRST RESPONDENT
NATIONAL CREDIT REGULATOR	SECOND RESPONDENT

 

Coram:

 

Ms Z Ntuli:                Presiding Tribunal Member

Mr S Hockey:            Tribunal Member

Adv C Sassman:       Tribunal Member

 

Date of hearing:        17 February 2025

Date of judgment:      31 March 2025

Last information received: 6 March 2025

 

JUDGMENT AND REASONS

 

THE PARTIES

 

1.              The applicant is Slade Kleynhans (the applicant). The applicant is a consumer, as defined in section 1 of the National Credit Act 34 of 2005 (NCA). The applicant represented himself at the hearing.

 

2.              The first respondent is Phillippus Johannes van Zyl (the first respondent), a registered debt counsellor with registration number NCRDC 3220 operating under the name Acceptable Debt. The first respondent was not represented at the hearing.

 

3.              The second respondent is the National Credit Regulator (NCR), established under section 12 of the NCA to regulate the consumer credit market and ensure compliance. The NCR was not represented at the hearing.

 

TERMINOLOGY

 

4.              A reference to a section in this judgment refers to a section of the NCA. A reference to a regulation refers to the National Credit Act Regulations, 2006 (the regulations).[1] A reference to a form refers to the prescribed forms set out in Schedule 1. A reference to a rule in this judgment refers to the Rules of the Tribunal.[2]

 

APPLICATION TYPE

 

5.              This is an application in terms of section 141(1)(b), in which the applicant, with leave granted by the Tribunal, seeks redress against the first respondent for the alleged failure to properly manage the applicant’s debt review process, resulting in the applicant’s vehicle being repossessed while he was still under debt review and regularly paying his monthly repayment in terms of the restructured arrangement.

 

PROCEEDINGS ON A DEFAULT BASIS

 

6.              The applicant served the notice and application on the first respondent as required by courier on 1 October 2024, with proof of service on pages 98 and 99 of the record, and the NCR was served by email in line with the consent granted. The Tribunal Registrar also dispatched all notices, including the set down and leave to refer judgment, to the respondents, with proof of service on pages 138, 141, 147, 156, 161, and 167 of the record. The panel is satisfied that the respondents were served correctly in compliance with the applicable rules.

 

7.              Under rule 13(2), the respondents must serve their answering affidavits on the applicant within 15 business days of receiving the application. The respondents failed to comply with this requirement. The applicant did not pursue a default order under rule 25(2). Consequently, the registrar scheduled the matter for hearing on an unopposed basis, as the pleadings were closed. In terms of rule 13(5), any factual allegation in the application or referral not expressly denied or admitted in the answering affidavit is deemed admitted.

 

BACKGROUND

 

8.              The referral arises from a complaint lodged by the applicant with the NCR on 23 April 2024. The applicant alleges that he approached Acceptable Debt on 27 November 2019 for debt review. He underwent a debt review on 3 February 2020, culminating in a consent order being granted by the Tribunal on 31 January 2021, a copy of which has been submitted. In terms of the rearranged credit terms, he was required to pay R4,250.00 to ABSA Bank Limited (ABSA).

 

9.              The applicant honoured the terms of the consent order by making payments regularly. However, on 19 March 2024, ABSA repossessed the vehicle. Surprised by this, he contacted Ms Debbie Meyer (Ms Meyer), the consultant at Acceptable Debt, to resolve this predicament. After several follow-ups, Ms Meyer indicated that there were issues with the account, the details of which ABSA changed, and later said the account was suspended. The first respondent promised to address the issue in vain and the applicant remained without his vehicle.

 

10.          With no resolution from the first respondent, the applicant decided to contact ABSA directly. According to the applicant, ABSA informed him that it did not receive any payment from the applicant from February 2023 to March 2024, when the vehicle was repossessed. He says he provided proof of payment to ABSA for February 2023 to March 2024, showing that he made the payments. However, ABSA provided its statements showing that the monies did not reach its account for that period. The applicant says it became clear to him that the first respondent did not manage his debt review properly as the monies paid to the distributing agencies were not transferred to ABSA.

 

11.          According to the applicant, ABSA previously repossessed the vehicle in 2021 due to a technical error but returned it immediately to the applicant when the error was discovered. The applicant has tried several times to engage the first respondent to resolve this problem with ABSA to enable the return of his vehicle. He also engaged ABSA regarding the return of his vehicle. ABSA has advised that it intends to auction the vehicle if this matter is not resolved promptly. The applicant awaited the resolution of this repossession error but has heard nothing from the first respondent.

 

12.          The applicant proceeded to lodge a complaint with the NCR. The NCR issued a notice of non-referral on 22 July 2024, citing that enforcement action against the first respondent was already pending at the Tribunal under case number NCT295867/2023/57(1) relating to other complainants on substantially the same issue. The applicant then escalated the complaint and filed an application for leave to refer the complaint to the Tribunal for resolution on 12 August 2024. A notice of complete filing was issued on 3 October 2024. The respondents did not oppose the application.

 

13.          On 7 November 2024, a notice of set down for consideration of the leave to refer application was issued on 25 November 2024 on an unopposed basis. Leave was granted in the judgment issued on 4 December 2024. The respondents again did not file opposing papers. A notice of set down was issued on 9 January 2025, enrolling the main matter for 17 February 2025 on an unopposed basis. The hearing was conducted virtually via MS Teams.

 

THE APPLICANT’S SUBMISSIONS

 

14.          At the hearing, the applicant succinctly outlined the basis of his application, most of which is covered in the background above. The applicant asserts that the first respondent failed to manage his debt review process properly by failing to ensure that the applicant’s payments reached ABSA and Nedbank Limited (Nedbank) in line with the terms of the consent order.

 

15.          The applicant avers that he relied on the expertise of the first respondent to help him with the debt review process, with no default in repayment of the restructured terms.

 

On the contrary, his vehicle was repossessed while the applicant was under debt review. To date, the first respondent has neglected to respond to him or resolve the problem. He remains without his vehicle, which affects the management of his personal and family affairs.

 

16.          According to the applicant, ABSA said he must pay the full debt amount for them to release his vehicle. He says he informed ABSA that he is unable to do so because of financial difficulties, which is why he had applied for debt review. The applicant believes that it is unreasonable for ABSA to demand full payment under such circumstances. More so, because he has proof of payment that he paid for the period ABSA thought he did not.

 

17.          The applicant asserts that he did not receive a notice from the debt counsellor or ABSA about the default. Further, ABSA informed him that they repossessed the vehicle based on a court order that they obtained erroneously in 2021. He insists that no court order was obtained regarding the alleged default from February 2023, more so as the evidence submitted clearly shows that he never defaulted on his payments. He believes ABSA should be able to return his vehicle, given the evidence that he did not default.

 

18.          The applicant requests the Tribunal to order the return of his vehicle and payment of any damages that resulted from the alleged irregular repossession.

 

CONSIDERATION OF THE EVIDENCE AND TRIBUNAL FINDINGS

 

The alleged contravention of the NCA

 

19.           The panel considered the applicant’s allegations, which were not opposed, as admitted. Given the reasons provided by the NCR in its notice of non-referral, the panel was concerned that the complaint might be barred under section 166(2) of the NCA. Accordingly, on 27 March 2025, the presiding member issued a summons to the NCR, requesting relevant information, including details regarding the nature and outcome of the NCR referral under case number NCT295867/2023/57(1).

 

20.           Upon reviewing the report received, the panel noted that notwithstanding that the applicant was not one of the complainants in the referral under case number NCT295867/2023/57(1), the allegations made against the first respondent therein pertained to substantially the same conduct that the applicant has brought before this Tribunal.

 

21.           Section 166(2) of the NCA stipulates that a complaint may not be referred to the Tribunal or a consumer court against any person who is or has been a respondent in proceedings under another section of the NCA, provided that such proceedings substantially relate to the same conduct. This provision ensures that once the Tribunal has issued an order concerning a particular complaint, no further proceedings may be instituted against the respondent relating to substantially the same conduct.

 

22.           The information revealed that on 18 July 2024, the Tribunal considered the NCR referral under case number NCT295867/2023/57(1) and found that the first respondent contravened several provisions of the NCA and its conditions of registration in the judgment dated 3 August 2024. Consequently, the Tribunal is barred by section 166(2) from considering the applicant’s referral.

 

The relief sought by the applicant in this application

 

23.           The applicant seeks the return of the repossessed vehicle from ABSA. However, the applicant has not cited ABSA as a respondent in these proceedings. A party with a direct and substantial interest in the relief sought must be joined to the proceedings. [3]The non-joinder of ABSA materially affects the Tribunal’s ability to grant the requested relief, as the Tribunal lacks access to ABSA’s reasons for the repossession.

 

24.           The Tribunal further notes that the repossession of the vehicle was carried out by ABSA pursuant to a court order. Since ABSA acted in accordance with a judicial order, the Tribunal lacks jurisdiction to direct the return of the vehicle. In these circumstances, the Tribunal cannot issue an enforceable order against ABSA. The applicant has also alleged that ABSA’s repossession failed to comply with the procedural requirements of the NCA. If the applicant contends that the court order was improperly granted, he must seek its rescission in the appropriate High Court or Magistrate’s Court.

 

25.           The applicant also seeks damages as part of the relief in this application. However, the Tribunal has no jurisdiction to award damages related to the repossession of the vehicle. As a statutory body, the Tribunal’s powers are confined to those expressly conferred by its enabling legislation.[4] The applicant may, however, pursue a damages claim before the appropriate forum if he believes such a claim is legally sustainable. In this regard, he may request a certificate in terms of section 164(3)(b) of the NCA, which serves as sufficient proof of its contents and is binding on the civil courts.[5]

 

CONCLUSION

 

26.           The Tribunal concludes that section 166(2) precludes it from considering this application. Further, the Tribunal lacks the jurisdiction to grant the relief sought by the applicant against ABSA.

 

ORDER

 

27.           The Tribunal orders as follows:

 

27.1                The applicant’s application is dismissed;

 

27.2                The Registrar must, within 10 days of the issuing of this judgment, transmit a copy of this judgment to the NCR and ABSA for information; and

 

27.3                There is no order as to costs.

 

[Signed] Ms Z Ntuli

Presiding Tribunal member

 

Tribunal members, Mr S Hockey, and Adv C Sassman, concur.

 

---

---