National Consumer Tribunal Annual Report 2011/12 National Consumer Tribunal 2011-12 | Page 43

In this matter the Tribunal had to consider if the fi rst respondent had
followed proper procedures to determine if a consumer was over
indebted or merely debt stressed. The Tribunal found with the evidence
at hand the respondent had completely ignored prescribed procedure
and created a process of his own which was not allowed. Secondly,
had the fi rst and second respondents received monies not due to them
from consumers, the Tribunal found that no matter how the respondent
presented the matter he had indeed charged and received money not
due to him either as a debt counsellor or as an attorney for expected
legal fees. It was found the respondent was not entitled to claim double
payment for the same duty performed. Thirdly the Tribunal found that the
third respondent was embarking on duties of a debt counsellor through
its employees while it was not a registered debt counsellor.
In conclusion the Tribunal’s order had the effect of cancelling the fi rst
respondent’s registration as a debt counsellor, requiring the fi rst and
second respondents to return all monies received wrongfully in a
prescribed manner. The third respondent was declared to be in repeated
contravention of the NCA.
8. In the matter between Gerald Clive Schwartz and African Bank
Ltd (NCT/510/2010/138(1)(P))
This was also an application for the confi rmation of a debt re-arrangement
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 and the debt counsellor found the applicant to be experiencing
diffi culty satisfying all obligations under his 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 the interest rate charged by
the credit provider in the consent order on its credit agreements. The
maximum prescribed interest rates applicable for the credit agreements
in terms of National Credit Regulation 42 (Table A) was 35,4%. African
Bank was charging interest rates of 36,64% and 39,80%, respectively,
on its credit agreements in terms of the proposed consent order. This
concern was raised by the Tribunal mero motu ie without it being raised
by any of the parties.
The Tribunal had to determine whether the interest rates charged by one
of the credit providers exceeded the maximum prescribed interest rate
in terms of National Credit Regulation 42 (Table A). The Tribunal applied
National Credit Regulation 42 (Table A), sections 101(1)(d) and 103(5)
of the NCA.
Syncarpha vestita
The Syncarpha vestita
(“Mattress everlasting”) was
harvested in large numbers
in the 19th century. The
fl owers were used as inners
of mattresses – yet another
way in which the fl ora of
this region demonstrates its
versatility.
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 African Bank.
Annual Report 2011
national consumer tribunal | page 41