National Consumer Tribunal Annual Report 2011/12 National Consumer Tribunal 2011-12 | Page 42

Adjudication (continued)
The Tribunal found that the contract (which is the subject of the consent order) between the
applicant and Capitec Bank constitutes an unsecured credit transaction. The legislature has
expressed the maximum interest rate which may be charged as a formula rather than as a fixed
rate. This means that when the Reserve Bank Repurchase Rate (repo rate) is reduced, credit
grantors are obliged to reduce the interest they are charging, if such rates are higher than the
maximum amount allowed in terms of the Regulation.
The maximum amount of interest which Capitec Bank could charge at present is 34,30%. The
interest rate of 37% set out in the consent order is in excess of this amount.
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 Capitec Bank.
6. In the matter between JH Herwell v SA Taxi Securitisation (NCT/658/2010/149(1)(P))
The applicant was seeking urgent interim relief in terms of Section 149(1) of the NCA and an order
for the termination of proceedings in the Western Cape High Court (WCHC).
The applicant had entered into a lease agreement for a vehicle with the respondent. Unable to
satisfy his obligations, he elected to enter into debt review proceedings. The respondent rejected
the proposed debt re-arrangement agreement and on 14 May 2010 gave notice of its election
to terminate the debt review process in terms of section 86(10). On 26 May 2010 the applicant
made an application to the Oudshoorn Magistrates’ Court for a declaration of over indebtedness.
Following this, on 2 June 2010, the Regulator made an application in the South Gauteng High
Court (SGHC) seeking an order that the respondent ha d prematurely terminated debt review
process. On 11 June 2010 respondent instituted proceedings in WCHC, claiming, amongst other
relief, the termination of the agreement and the return of the vehicle.
In considering the application for interim relief the Tribunal had to determine if the matter was
pending before the court. The Tribunal found that three courts are tasked with the matter involving
the same parties, arising out of the same set of facts, albeit that the relief sought is different.
Accordingly the Tribunal found the matter is pending before another court (litis pendens) and as
such was outside its jurisdiction.
Secondly, as a creature of statute the Tribunal is bound to act in terms of the NCA and it thus has
no jurisdiction to order the termination of proceedings instituted in the WCHC. In conclusion the
application for interim relief was dismissed.
7. In the matter between NCR v Christopher Bornman, Bornman & Associates Attorneys
and Proprietas Bene Carpe CC (NCT/656/2010/57(1)(a)(c)(P))
This was an application brought by the Regulator in terms of section 57(1) of the NCA for the
cancellation of registration as debt counsellor.
There was disagreement as to what roles which respondents played but it was found that
respondent 1 and 2 were acting as the same person. In essence it was alleged that respondent
1 and 2 acted contrary to the NCA and the conditions of his registration as a debt counsellor.
Respondent 3 was accused of acting as a debt counsellor while not being registered to act as
such.
Annual Report 2011
page 40 | national consumer tribunal