|THE PARTIES |
The Applicant in this matter is Capitec Bank Ltd, a registered credit provider in terms of the National Credit Act 34 of 2005 (“NCA”) (herein referred to as the “Applicant”). The First Respondent is Sebastien Alarik Alexanderson, a registered debt counsellor. The Second Respondent is Agnes Hendrika Botes, the consumer under debt review (collectively referred to as “the Respondents”).
The Applicant argued that an order issued by the Tribunal which allowed the Second Respondent to be placed under debt review was erroneously applied for by the First Respondent as it was done before a consent order was granted. The Applicant had terminated the debt review process in terms of section 86 (10) (a) of the NCA. The termination was solely due to the Second Respondents failure to make any payments in accordance with the accepted payment agreement.
NATURE OF CURRENT APPLICATION
The application was made in terms of Section 165 of the National Credit Act, 2005 to rescind the debt re-arrangement agreement, which was subsequently made an order of the Tribunal.
CONSIDERATION OF THE EVIDENCE ON A DEFAULT BASIS
On or about, 11 November 2019 the Applicant filed the application with the Tribunal. The application was duly served on the Respondents by registered post on the same day. On or about, 12 November 2019 the Tribunal’s Registrar issued a notice of filing to all the relevant parties.
|In terms of Rule 13 of the Rules of the Tribunal, the Respondents had 15 (Fifteen) business days within which to serve an Answering Affidavit and to file same with the Tribunal’s Registrar. |
The Respondents subsequently failed to observe this rule timeously. The Applicant, however, did not file an application for a default order in terms of Rule 25(2). On or about, 12 December 2019 the Tribunal’s Registrar issued a notice of set down to all the relevant parties formally setting the matter down for hearing on a default basis for 27 February 2020, due to litis contestatio or the close of pleadings. On the date of the hearing the Tribunal had to satisfy itself that the application was adequately served on the Respondents and the matter ought to proceed on a default basis.
OBSERVATION OF SECTION 165 OF THE NCA
Section 165 of the NCA provides for a rescission or variation of an order previously granted by the Tribunal. This is done where a party is “acting of its own accord or on application by a person affected by a decision or order.” Section 165 further prescribes that such a rescission or variation may only be granted in the following instances:
-When the order of the Tribunal has been erroneously sought or granted in the absence of a party affected by it;
-Where there is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or
-Where an order is made or granted as a result of a mistake common to all the parties to the proceedings.
GROUNDS OF RESCISSION/VARIATION
Erroneously sought or granted
|The courts have held that in an application for variation or rescission of an order, the Applicant bears the onus of establishing that the order was erroneously granted. The court considered the meaning of the words “erroneously granted” which was extensively dealt with in the Bakoven–casewhere the following submission was made: |
“An order or judgment is ‘erroneously granted’ when the Court commits an ‘error’ in the sense of ‘a mistake in a matter of law appearing on the proceedings of a Court of record’. It follows that a Court in deciding whether a judgment was ‘erroneously granted’ is, like a Court of Appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the common law, the applicant need not show ‘good cause’ in the sense of an explanation for his default and a bona fide defence (Hardroad (Pty) Ltd v Oribi Motors (Pty) Ltd (supra) at 578F-G; De Wet (2) at 777F-G; Tshabalala and Another v Pierre 1979 (4) SA 27 (T) at 30C-D). Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission.”
Accordingly the words “erroneously granted” meant that the Tribunal must have committed an error or mistake in law, which would warrant such rescission and/or variation.
Ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission
Was submitted that this ground allowing for the variation is clearly applicable in instances where an order granted by the Tribunal is vague or uncertain, or an obvious error occurred in the granting thereof. However, its applicability is limited to the extent that it corrects such ambiguity, error or omission.
Mistakes common to all the parties to the proceedings.
It was submitted that this ground is applicable and/or relates to an error which occurred in the granting of the order and requires that the error is common to all the parties. Presupposing that it is an error effecting all parties concerned.
|CONSIDERATION OF THE EVIDENCE |
The Applicant attached a copy of the original application for a consent order which was filed with the Tribunal. The application for a consent order was dated 30 July 2019. Based on the evidence available the Applicant terminated the debt review process in October 2018 and January 2019. This was before the consent order was applied for in July 2019 and before same was granted in September 2019.
As such it was under these circumstances, that the debt counsellor could not bring an application for the agreement to be confirmed as a consent order as there was no agreement between the parties at the time of application. The application was therefore brought on an erroneous basis.
|In the circumstances the Tribunal made the following order: – That the application to rescind the erroneous order was granted owing to the above.|
No order was made as to costs.
This case illustrates the three grounds which the National Consumer Tribunal will consider before permitting the rescission or variation of a previous order.
Written by Lauren Squier and Kyle Venter