Automated Summary
Key Facts
Capitec Bank Limited applied to rescind a debt re-arrangement agreement made an order of the Tribunal on 20 November 2018 (NCT/117160/2018/138(1)). The Consumer (Dan Tebogo Mazibuko) entered into a loan agreement with Capitec but defaulted, leading to a debt review application. The Debt Counsellor (Clark Gardner) submitted a Section 138 application after the debt review process was terminated by Capitec in October 2015. The Tribunal found the 2018 consent order was erroneously sought, as the debt review had already been terminated, and rescinded it on 14 August 2019.
Issues
The Tribunal considered whether the consent order made on 20 November 2018 was erroneously sought under Section 165(a) of the National Credit Act, 2005. The Applicant argued that the Debt Counsellor filed the application after the debt review process was legally terminated, leading to the conclusion that the order was indeed erroneously sought.
Holdings
The Tribunal rescinds the consent order made on 20 November 2018 under case number NCT/117160/2018/138(1) as it was erroneously sought by the Debt Counsellor after the debt review process was terminated. The balance of probabilities favours the conclusion that the consent order was erroneously sought due to the Debt Counsellor filing the application post-termination of the debt review process by the Applicant.
Remedies
- The consent order made on 20 November 2018 under case number NCT/117160/2018/138(1) is hereby rescinded.
- There is no order made as to costs.
Legal Principles
- The Tribunal applied Section 165(a) of the National Credit Act to rescind a consent order that was erroneously sought. The decision emphasized that an order is 'erroneously granted' when the Tribunal commits a legal error, and the Applicant must demonstrate this to warrant rescission.
- The Applicant bears the onus to prove the order was erroneously granted, requiring a legal error by the Tribunal. This principle was central to the court's analysis of the rescission application under Section 165(a) of the NCA.
Precedent Name
- First National Bank of SA Bpk v Jurgens and Another
- Bakoven Ltd v G J Howes (Pty) Ltd
Cited Statute
National Credit Act, 2005
Judge Name
- Prof K Moodaliyar
- Ms H Devraj
- Prof B Dumisa
Passage Text
- "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'... Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission."
- a) The consent order made on 20 November 2018 under case number NCT/117160/2018/138(1) is hereby rescinded; and
- 21. Although the Debt Counsellor's reasons for filing the application for a consent order after the Applicant had served the notice of termination is not known; the Debt Counsellor not having filed any papers in the present matter; the balance of probabilities favours the conclusion that; the consent order was erroneously sought.