National Consumer Tribunal Annual Report 2011/12 National Consumer Tribunal 2011-12 | Page 45

10. In the matter between Johannes Hendrik Kriel v SA Taxi
Securitization (NCT/658/2010/149(1)(P))
This was an application for urgent interim relief in terms of section 149(1)
of the NCA. The applicant requested an order to terminate legal action
taken by the respondent against the applicant in the Cape Town High Court
and to stop the repossession of the vehicle financed by the respondent
under a lease agreement with the applicant. The applicant had fallen
into arrears with the monthly rentals and had applied for debt review.
The respondent subsequently terminated the debt review and instituted
the High Court proceedings, claiming termination of the lease agreement
and return of the vehicle. In the meantime, the applicant applied to the
Oudsthoorn Magistrates’ Court to be declared over-indebted.
The respondent argued that the Tribunal does not have jurisdiction to
grant the order sought by the applicant because the matter brought before
the Tribunal is a matter to be decided in the High Court and Magistrates’
Court and both these courts were seized with the matter. The Tribunal
had to determine whether it had jurisdiction to grant the orders sought by
the application in view of the principle of lis alibi pendens (matter already
pending before a court), and sections 166 and 86(11) of the NCA.

The Tribunal dismissed the application. It mentioned that the requirements
of lis alibi pendens (matter already pending before a court)) are (a) there
must be litigation pending, (b) the other proceedings must be pending
between the same parties, (c) the pending proceedings must be based
on the same cause of action, and (d) the pending proceedings must be in
respect of the same subject matter.
The Tribunal found that the matter is lis alibi pendens (already pending
before a court) and that it had no jurisdiction to determine the matter for
the following reasons:
•
•
•
The disputes in the High Courts and Magistrates’ Court relate to the
same subject matter, being the debt review process and are pending
between substantially the same parties;
The matters before the courts relate to substantially the same parties
and arising out of the same set of facts;
The Tribunal does not have jurisdiction to order the termination of the
action instituted in the High Court for the repossession of the vehicle
because the High Court has inherent powers and unlimited powers
to grant any order being sought.
11. In the matter between the National Credit Regulator (NCR) v
Barry Kotze (NCT/710/2010/57(1)(P))
The Regulator applied to the Tribunal for the cancellation of the registration
of a registrant, Barry Kotze, a debt counsellor in terms of Section 57(1)(a)
and (c) of the NCA.
The respondent registrant, Barry Kotze, is an admitted attorney who
was also a registered debt counsellor, having been registered on
21 July 2008. He operated under the name and style Debt Law.
Annual Report 2011
national consumer tribunal | page 43