National Consumer Tribunal Annual Report 2011/12 National Consumer Tribunal 2011-12 | Page 39

2. In the matter between Sinki Suzan Liphoko and ABSA Bank,
African Bank, Ellerine Holdings Ltd, Edcon (Pty) Ltd and
Orange Cash Loans (NCT/253/2009/138(1)(P))
The case was an application for the confi rmation of a debt re-arrangement
agreement in terms of Section 86(8)(a) read with section 138(1) of the
NCA. The applicant was the consumer who applied for debt review in terms
of the NCA. The debt counsellor found the applicant to be experiencing
diffi culty satisfying all obligations under her credit agreements in a timely
manner.
The debt counsellor recommended a restructuring of the payment
instalments to all credit providers. All the credit providers consented to
the recommendation.
The Tribunal expressed concern over credit granted to the consumer,
particularly whether the applicant was over-indebted and whether any
of the respondent credit providers had granted credit recklessly to the
applicant. This was raised by the Tribunal, mero muto, ie, without it being
raised by any of the parties.
The Tribunal applied sections 79, 86(7)(b) and 86(8)(a) of the NCA.
Section 79 deals with over-indebtedness and section 86(7)(b) and
86(8)(a) contains provisions in relation to the recommendation that the
debt counsellor may make where a consumer is not over-indebted, but
experiencing diffi culty in satisfying all its obligations in a timely fashion.
If the consumer and the credit providers accept the proposal made by
the debt counsellor in terms of section 86(7)(b), then the debt counsellor
may record the proposal in the form of an order and fi le it as a consent
order in terms of section 138(1). The Tribunal refused the application for
the consent order and referred the matter to the Regulator to investigate
whether there was prohibited conduct on the part of any of the respondent
credit providers. The Tribunal found that the applicant was clearly over-
indebted and that there was evidence of reckless lending by the credit
providers. As the applicant was over-indebted and not only experiencing
diffi culty in satisfying her obligations in a timely manner, the Tribunal
could not deal with the matter as the matter should be dealt with by the
magistrates’ court.
3. In the matter between Basetsana Angelina Motitsoe and
ABSA Bank, African Bank, Direct Axis SA (Pty) Ltd, Randburg
Finance and Consumer Friend (NCT/255/2009/138(1)(P))
LAMIACEAE Leonotis
leonorus
Local folklore is a fertile
source of knowledge about
fynbos, with Leonotis
leonorus believed to keep
snakes away from the
house.
The case involved an application for the confi rmation of a debt re-
arrangement agreement in terms of Section 86(8)(a) read with section
138(1) of the NCA. The applicant was the consumer who applied for
debt review in terms of the NCA. The debt counsellor found the applicant
to be experiencing diffi culty satisfying all obligations under her credit
agreements in a timely manner.
Annual Report 2011
national consumer tribunal | page 37