National Consumer Tribunal Annual Report 2011/12 National Consumer Tribunal 2011-12 | Page 37

other courts (Kriel v SA Taxi Securitization 3 as well as Herwell v SA
Taxi Securitisation 4 ). The Tribunal has indicated that it would not have
jurisdiction to grant orders in relation to matters where the consumer
is clearly over-indebted as defined in section 79 of the NCA and that
these types of matters should be heard by the magistrate’s court with
jurisdiction. 5 These issues were raised by the Tribunal mero motu (out
of its own) without the issue being raised by one of the parties. This is
accordingly an example of the Tribunal exercising its inquisitorial nature.
The Tribunal has interpreted sections of the NCA and set precedents
for future conduct of parties in the credit arena. The Tribunal has, for
example, interpreted the statutory in duplum rule in the Motitsoe matter 6
where the Tribunal refused to grant a consent order because the statutory
in duplum rule, as defined in section 101 of the NCA, would be exceeded
in relation to one of the consumer’s debts.
In the Matjokana matter 7 the Tribunal clarified the provisions of section
55 of the NCA. Section 55 deals with the requirements for compliance
notices and the information which is required to be present in such a
notice. Specifically the Tribunal has clarified that the notice should be
clear in relation to the timelines for corrective behaviour as well as the
applicable steps that a registrant should take in order to comply with
the notice. The Regulator accordingly has a precedent against which to
issue future compliance notices to ensure that they comply with the NCA.
The consent order applications that have been granted have given
consumers an opportunity to repay their debt over a longer period of time
and at more affordable instalments, thus providing them with protection
from the loss of their possessions. Cases in which the consent orders
have not been granted have mainly been due to illegal interest rates
agreed to between the parties, or where there was possible reckless
credit lending. 8
These issues were again raised by the Tribunal mero motu (out of its
own) without the issue being raised by one of the parties.
Lastly, the Tribunal has established standards in relation to conduct in
the credit industry and prohibited conduct. In the Barry Kotze matter 9 as
well as the J Sahibdeen matter 10 the Tribunal confirmed that the conduct
of these debt counsellors was prohibited. Other debt counsellors can
accordingly measure their own performance and conduct against the
conduct declared prohibited in the abovementioned matters, resulting in
proper performance and conduct on the part of other debt counsellors.
NCT/658/2010/149(1)(P).
NCT/658/2010/149(1)(P).
5
Liphoko v ABSA and others NCT/253/2009/138(1)(P), Motitsoe AND ABSA and others
NCT/255/2009/138(1)(P).
6
NCT/255/2009/138(1)(P).
7
Matjokana v NCR (NCT/585/2010/56(1)(P)).
8
Olyn v African Bank and others NCT/286/2009/138(1)(P), Liphoko v ABSA and
others NCT/253/2009/138(1)(P), Motitsoe v ABSA and others NCT/255/2009/138(1)(P),
Mpungane v Addcon (Pty) Ltd and others (NCT/289/2009/138(1)(P)).
9
NCT/710/2010/57(1)(P).
10
NCT/666/2010/57(1)(P).
3
4
Annual Report 2011
national consumer tribunal | page 35