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[2013] ZASCA 130
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Bornman v National Credit Regulator (798/12) [2013] ZASCA 130; [2014] 2 All SA 14 (SCA); 2014 (3) SA 384 (SCA) (26 September 2013)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 798/12
In the
matter between:
CHRISTOPH BORNMAN
........................................................................................
APPELLANT
and
NATIONAL
CREDIT REGULATOR
.....................................................................
RESPONDENT
Neutral citation:
Bornman v National Credit Regulator
(798/12)
[2013] ZASCA 130
(26 September 2013).
Coram:
Lewis, Ponnan, Malan, Shongwe and Saldulker JJA
Heard:
16 September 2013
Delivered: 26 September 2013
Summary:
National Credit Act 34 of 2005
– debt counsellor –
registration of – cancellation of registration by National
Consumer Tribunal –
s 57
– order for refund of money
received in breach of Act and conditions of registrations.
_________________________________________________________________________
ORDER
_________________________________________________________________________
On appeal from:
North Gauteng High Court, Pretoria (Ranchod and
Molopa-Sethosa JJ sitting as court of appeal):
The appeal is dismissed with costs.
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
Malan JA
(Lewis, Ponnan, Shongwe and Saldulker JJA concurring):
[1] The office of debt counsellor was created by the
National Credit Act 34 of 2005 (NCA). The NCA provides not only for
the registration
of a person as a debt counsellor but also for its
cancellation. This appeal concerns the cancellation of the
registration of the
appellant, Mr ChristophBornman, as a debt
counsellor by the National Consumer Tribunal and other orders made on
the application
of the National Credit Regulator. At all material
times the appellant was also admitted and practised as an attorney.
[2] The Tribunal was established by s 26 of the NCA. It
conducted a hearing in this matter pursuant to s 57 read with ss 142
and
150 of the NCA. The hearing was conducted by a full panel of the
Tribunal (s 31(1)(
b
)). In terms of s 148(2) a participant in
the hearing before a full panel, such as the appellant, may apply to
the high court to
review the decision of the Tribunal or to appeal
against it. The appellant appealed against the decision of the
Tribunal to the
high court. Both his appeal and his application for
leave to appeal to this court were dismissed but leave to appeal was
subsequently
granted by this court.
Debt counselling
[3] Debt counsellors play an integral
part in the debt review and restructuring process.
1
Only natural persons may be
registered as debt counsellors (s 44(1)). Any person who wishes to
act as a debt counsellor must apply
for registration (s 44(2)). No
one may offer or engage in the services of a debt counsellor in terms
of the NCA, nor hold himselfor
herself out to the public as being
authorised to offer such services unless registered (s 44(2)).Strict
personal requirements have
to be met before a person may be
registered. An applicant for registration must satisfy the prescribed
education, experience and
competency requirements or do so within the
time determined by the Regulator (s 44(3)(
a
)
and (
b
)
and reg 10). Certain persons are disqualified from registration (s
46(3)).The disqualifications are aimed at enhancing and preserving
the integrity of the office of debt counsellor. A duty is further
imposed on the Regulator to deregister a person who becomes
disqualified after his or her registration (s 46(5)).
[4] The NCA introduced new provisions
into South African law aimed at affording consumers who are
over-committed a ‘second
chance’ by being declared
over-indebted and rescheduling their commitments.
2
A
consumer is over-indebted when he or she is unable to satisfy all the
obligations under all his or her credit agreements in a
timely
manner, having regard to his or her financial means, prospects,
obligations and history of debt repayment (s 79(1) and reg
24(7)).Debt review is usually initiated by the consumer (s 86(1) (and
s 85)), but the crucial determination of over-indebtedness
is made by
the debt counsellor (s 86(6)). Without this determination the process
of debt review cannot proceed and a consumer may
well be deprived of
the protection of the NCA. The NCA does not prescribe the format of
the debt counsellor’s determination.
But that a determination
must be made, and records kept of it, is clear. The appellants
failure to make any determination is crucial
to this appeal.
[5] Debt review plays an increasingly
important role in the credit industry.
In
the first two years since the provisions of the NCA became fully
operational more than 100 000 applications for debt counselling
were received. In March 2011 there were more than 240
000
applications and 63 000
consumers were paying rescheduled debts through payment distribution
agencies. By March 2012 there
were around 300 000 applications
and around 80 000 consumers were making payments through payment
distribution agencies.
About 65 per cent of consumers under debt
review pay their rescheduled debts regularly. In March 2012 there
were more than 2 000
registered debt counsellors. Between March
2008 and March 2012 payment distribution agencies had distributed
R6,2 billion to credit
providers.
3
Tribunal order
[6] The Tribunal made a lengthy order
which may be summarised as follows: First, the appellant was declared
to have been in contravention
of general conditions A 1, 2, 5, 7, 9
and 11 of his conditions of registration. Second, he was declared to
have been in repeated
contravention of specific condition B 1 of his
conditions of registration. Third, he was declared to have been in
repeated contravention
of the following sections and regulations of
the NCA: s 86(6) read with reg 24(6); s 86(7) and s 86(8) read with
regs 24(7) and
(8); s 86(8) read with reg 24(10); and reg 24(9).
Fourth, the appellant’s conduct in repeatedly contravening the
general
and specific conditions of his registration and his conduct
in repeatedly contravening the NCA was declared conduct prohibited in
terms of s 150(
a
).
Fifth, the appellant’s registration as a debt counsellor was
cancelled in terms of s 150(
g
)
with immediate effect. Sixth, the appellant was ordered –
‘
to refund all of his past and current
clients, or consumers, all amounts taken from his trust account as
collection commission,
or retainer, or legal fees, or under any other
description as well as any other charge not provided for in terms of
the fee guidelines.
The refund shall be paid to each client or
consumer within thirty (30) days of the date of this order. If any
client or consumer
cannot be traced, then in that event, the money
shall be paid into (or it shall remain in, as the case may be) the
[appellant’s]
trust account where it shall be kept until it is
paid to the client or consumer. The [appellant] is ordered to use his
best efforts,
in good faith, to locate every client or consumer for
the purpose of effecting the refund.’
Seventh, and pursuant to the previous order,
the
appellant was ordered to report to the Regulator providing details of
the amount of repayments, the recipients thereof and the
steps taken
to locate clients he was unable to trace. Eighth and ninth, the
appellant was ordered to refund all debt counselling
fees and report
to the Regular on his actions in this regard. Tenth, eleventh and
twelfth, the third respondent before the Tribunal,
ProsperitasBene
Carpe CC, was prohibited from providing debt counselling services on
behalf of the appellant or any other debt
counsellor; ordered to
desist from holding itself out as a debt counsellor and declared to
have been in repeated contravention
of ss 44(1) and (2). Thirteenth
and fourteenth, the appellant was ordered to surrender all his client
files to the Regulator and
furnish it with a list of clients; and the
Regulator ordered to furnish his clients who were under debt review
with a list of registered
debt counsellors who were willing to
continue with each client’s debt review. No order as to costs
was made.
High court decision
[7] The court below (per Ranchod J,
and
Molopa-Sethosa J concurring) upheld the order of the Tribunal and
dismissed the appellant’s appeal. Prior to the hearing
of this
appeal the Regulator abandoned paras 8 and 9 of the Tribunal order
which obliged the appellant to refund to all his past
and present
clients the amounts paid by them as debt counselling fees. Paragraph
8 of the order entitled the appellant, should
he contend that he was
not obliged to refund a specific consumer, to substantiate his
reasons, and authorised an inspector to determine,
in his or her
discretion, whether the consumer was properly charged a debt
counselling fee. If it was found that the consumer was
liable for the
debt counselling fee the appellant was not required to refund that
fee. Paragraph 9 of the order required the appellant
to report to the
Regulator on the refunds made pursuant to para 8.
Registration of appellant
[8] The appellant was registered as a debt counsellor on
22 February 2008. His conditions of registration included general and
specific
conditions. General conditions A 1, 2, 5, 7, 9 and 11 were
imposed in terms of s 48 on the appellant on registration. They
required
him to comply with all legislation and regulations
applicable to the operation of the business of a debt counsellor
(general condition
A 1); to perform debt counselling in a manner
consistent with the purpose and requirements of the NCA and to act
professionally
thereby ensuring that he would not bring the Regulator
or debt counselling into disrepute (general condition A 2); not to
engage
in any activity which would conflict with the interests of
consumers to whom debt counselling services were provided, and not to
enter into any agreement or engage in any activity which might
prevent him from acting in the best interests of the consumers to
whom these services were provided (general condition A 5); to submit
reports and returns prescribed by the regulations or required
by the
Regulator (general condition A 7); to
‘
only charge fees to or recover fees from
consumers as provided for in the Act and Regulations. The Debt
Counsellor must not receive
fees, commission or any other
remuneration where such Income may compromise the independence of the
Debt Counsellor in respect
of debt counselling services to consumers’
(general condition A 9);
and to maintain adequate records and keep relevant
copies of documentation in order to demonstrate compliance with the
NCA and his
conditions of registration (general condition A 11). In
addition, special condition B 1 further provided:
‘
The Debt Counsellor may not receive
payments from consumers who have applied for debt review or receive
payments in respect of debt
obligations that were re-arranged in
terms of the Act or distribute such payments to credit providers.’
The Debt Counselling Fee Guidelines provide in para 1.7:
‘
Legal fees,
if
and when they occur
, may be recovered
from the consumer provided the amount of such fees are disclosed
up-front to the consumer and agreed to in writing
by the
consumer.’(My emphasis).
The appellant’s business
[9] The appellant is registered as a debt counsellorand
is alsopractisingas an attorney under the name Bornman&
Associates.In
February 2010 the appellant, in his capacity as debt
counsellor, had 4808 consumers under debt review. The debt reviews of
1674
of the appellant’s customers were terminated by credit
providers under s 86(10). The appellant required his debt counselling
customers to complete a Declaration which included an Acknowledgment
of Obligation. The Declaration was usually signed on the same
day the
Form 16 application for debt review was completed by the consumer. It
recorded the following:
‘
I declare as follows:-
1. I undertake to comply with all requests from the debt counsellor
to assist him/her to evaluate my state of indebtedness and
the
prospects for reasonable debt restructuring.
2. I hereby consent to the submission of my information to all
registered credit bureaus by thedebt counsellor.
3. I also consent that the debt counsellor may obtain my credit
record from any/all credit bureaus and … other registers
which
may contain any of my credit information.
4. I undertake not to enter into … further credit agreements,
other than a consolidated agreement, with any credit provider
until
one of the following events has occurred:-
Debt counsellor rejects my application;
The court determines I am not over-indebted; or
All my obligations under credit agreements as re-arranged are
fulfilled.
5. I confirm that the information obtained in this document is to the
best of my knowledge true and correct.’
[10] The appellant procured the conclusion of an
Acknowledgment of Obligation with every consumer. In this document
the consumer
consents to the debt counsellor charging certain fees,
inter alia an application fee, a rejection fee, a restructuring fee,
a restructuring
fee on withdrawal from the process after completing
restructuring negotiations and an ‘after-care fee’. The
after-care
fee was to be equal to five per cent of the monthly
instalment of the debt re-arrangement plan (with a maximum of R300)
for a period
of 24 months after which it would be reduced. In certain
instances it was recorded that –
‘
an additional collection fee of 10% of the
monthly instalment will be collected by Bornman& Associates, with
a maximum of R1 000,00
per month.’
[11] Bornman& Associates also obtained a mandate and
power of attorney from consumers, who were referred to as ‘clients’.
The mandate records that –
‘
WHEREAS the client has indicated that
he/she is not able to maintain his/her full monthly obligations to
his/her creditors;
AND WHEREAS
the client has requested that the attorneys act on
his/her behalf with regards to the client’s creditors;
WHEREFORE
the client hereby grants to the attorneys a mandate
to inter alia:
To obtain any records from the client, his/her creditors and/or
credit bureaux to assist with the compilation of a schedule of
payment and determining a budget;
Accept all payments made by the client into the attorneys’
trust account for purposes of
voluntary debt programme
;
Have a payment schedule drawn for the creditors;
Make an offer of payment to the creditors in accordance with the
said schedule – and any amendments thereof in a total
discretion of the attorneys;
Make payments to the creditors
in accordance with the schedule(s)
or at the discretion of the attorneys
;
That the attorneys will at all times ensure the well-being of the
client’s financial affairs in as far as this mandate
is
concerned; including all that is reasonably and legally necessary to
assist the client in relieving and/or settling his/her
indebtedness
to a creditor(s);
Will enter into negotiations with creditors on the client’s
behalf, including litigation with a creditor where it is necessary,
also opposing of any collection proceedings that a creditor may
institute against the client.’
Debt counsellor and attorney
[12] The appellant’s customers instructed him both
as debt counsellor and as attorney. Although there may appear to be
some
overlapping of the work that the appellant had to do as an
attorney and as a debt counsellor, the two mandates are fundamentally
different. As a debt counsellor the appellant had to proceed in terms
of the NCA and had to determine whether the consumers, his
customers,
were over-indebted. As a debt counsellor he also had to consider a
voluntary re-arrangement of the consumer’s
obligations (see s
86(7)(
b
) and 8(
a
)). This latter course he also had to
pursue in terms of clause 4 of the mandate. But here the apparent
similarity ends. The duties
of a debt counsellor are contained in the
NCA and the voluntary re-arrangement referred to is part of the
statutory debt review
process. But any offer to credit providers that
he may make pursuant to his customer’s mandate does not form
part of the
debt review process. Moreover, the appellant may in terms
of the mandate be required to litigate on behalf of the consumer by
opposing
collection proceedings (clause 7 of the mandate). This is
not reconcilable with the debt review process. The seeds of a
conflict
of interestwere thus inherent in the two sets of
instructions given to the appellant. As I will show, the appellant
did not perform
his duties under the NCA but instead, as he stated
himself, attempted a ‘more informal conciliatory process by
trying to
obtain universal acceptance and consent’ because the
‘court process was totally dysfunctional’. No evidence of
the non-functioning of the magistrates’ court was presented by
him, nor of any application made by him to that court.
[13] Neither the NCA nor the
Attorneys Act 53 of 1979 prohibits a person from practising both as a
debt counsellor and as an attorney.
When doing so he or she is
entitled to but subject to the rights and duties applicable to him or
her in those capacities.
4
He is entitled to carry out the legal
work required by the NCA and to charge a fee.
5
He is entitled to both a debt
counselling fee qua debt counsellor and to a fee as an attorney for
legal work done. But this does
not absolve him from complying with
his conditions of registration as a debt counsellor or observing the
duties incumbent on an
attorney where he acts in those capacities.
Contravention of the NCA and Regulations
[14] The appellant was declared to have been in repeated
contravention of the following sections and regulations of the NCA: s
86(6)
read with reg 24(6); s 86(7) and s 86(8) read with regs 24(7)
and (8); s 86(8) read with reg 24(10); and reg 24(9).
[15] Section 86 read with reg 24 prescribes the
procedure to be followed when a consumer applies for debt review. A
consumer may
apply to a debt counsellor to be declared over-indebted
(s 86(1) read with reg 24(1)). In doing so he must submit a completed
Form
16 (Schedule 1 to the regulations) or provide the debt
counsellor with the information detailed in reg 24(1)(b). Within five
business
days of receiving the application, the debt counsellor must
deliver a completed Form 17.1 to all credit providers that are listed
in the application and to every registered credit bureau (s 86(4)
read with reg 24(2)). The consumer and every credit provider
addressed in Form 17.1 are required to comply with any reasonable
request of the debt counsellor to facilitate the evaluation of
the
consumer’s state of indebtedness (s 86(5)). The debt counsellor
must verify the information provided in Form 16 (reg
24(3)). This may
be done by requesting documentary proof from the consumer or the
credit provider. Should the credit provider fail
to provide the debt
counsellor within five days of the verification requested, the debt
counsellor may accept that the information
provided by the consumer
is correct (reg 24(4)).
[16] The debt counsellor is thereafter required to
determine within 30 business days of receiving the consumer’s
application
whether the consumer appears to be over-indebted; and, if
the consumer seeks a declaration of reckless credit, whether any of
the
consumer’s credit agreements appear to be reckless (s 86(6)
read with regs 24(6), (7) and (8)).
[17] The debt counsellor must then, as a result of his
assessment, make one of three determinations (s 86(7)). First, that
the consumer
is not over-indebted, in which event he must reject the
application for debt review even if he has concluded that any of the
credit
agreements was reckless at the time it was entered into (s
86(7)(
a
)). Second, although the consumer is not over-indebted,
the debt counsellor may conclude that he is nevertheless experiencing
or
likely to experience difficulty satisfying all his obligations
under credit agreements. In such event, the debt counsellor may
recommend that the consumer and the respective credit providers
voluntarily consider and in writing (reg24(9)) agree on a plan of
debt-rearrangement. If acceptable to the parties, it may be filed as
a consent order in terms of s 138 (s 86(8)(
a
)). If not
acceptable, the debt counsellor must refer the matter to the
magistrate’s court with his recommendation (s 86(8)(
b
)).
Third, the debt counsellor may conclude that the consumer is
over-indebted, in which case he may issue a proposal that the
magistrate’s court make either or both of the following orders:
(a) that one or more of the consumer’s credit agreements
be
declared reckless credit; or (b) that the consumer’s
obligations be re-arranged in any of the ways specified in s
86(7)(
c
)(ii). After completion of the assessment the debt
counsellor is required to submit Form 17.2 to all affected credit
providers and
all registered credit bureaux within five days (reg
24(11)).
[18] The appellant deviated from the procedurerequired
by s 86. He used what he described as an ‘expedited’ form
of
process. After a consumer applied for debt review, receipt of his
application was acknowledged. A Form 17.1 notification would then
be
transmitted to credit providers within the prescribed time (five
days). In some cases a combined Form 17.1 and 17.2 was sent.
(A Form
17.2 should be transmitted only after completion of the
over-indebtedness assessment (reg 24(11)). In most cases the
appellant
did nothing after transmission of Form 17.1. In addition,
some of the Form 17.2 notifications contained the following:
‘
If no written correspondence is received
within 7 days from the date of this notice, the consumer(s) and the
debt counsellor will
have assumed the offer to be deemed acceptable
[to the credit provider].’
It is clear that the appellant’s inaction after
transmitting Form 17.1 constitutes a contravention of the remainder
of s 86
and reg 24. Moreover, he had no right to assume that credit
providers to whom thecombined Form was sent had accepted the proposal
contained in it. He could not impose on credit providers a
restructuring plan they had not agreed to.Moreover, Form 17.1 cannot
be combined with Form 17.2. The first is transmitted within five days
of the consumer’s application to all credit providers
and every
registered credit bureau (reg 24(2)), the second within five days
after a determination of over-indebtedness is made,
ie within 30 days
of the consumer’s application (reg 24(6)).
[19] Pending the appellant’s ‘restructuring’
of his customers’ obligations they continued making payment
into Bornman& Associates’ trust account. From August 2009
to January 2010 Bornman& Associates received and paid over
to the
debt transmission agent (DC Partners) some R36 million after
deduction of the collection fee.As I have said, there was no
evidence
before the Tribunal that the appellant lodged any court application.
Moreover, the appellant was paid some R1.7 million
in ‘after
care’ fees without making determinations in terms of s 86(6).
He has not demonstrated that he performed any
‘after care’
services.
[20] A determination in terms of s 86(6) could only have
been made after verification of the information requested in terms of
s
86(5)(
a
). There is no evidence of any determination made.
The appellant was required to maintain adequate records to
demonstrate compliance
with the NCA (general condition A11). He did
not. Although no format is required, any determination of
over-indebtedness had to
be in writing: this follows from s 87(6)(
b
)
and (
c
) and s 86(8)(
a
) and (
b
) providing for the
consent of a credit provider and the referral to the magistrate’s
court of the debt counsellor’s
recommendation. Whatever
uncertainty there might have been before the judgment in
National
Credit Regulator v Nedbank Ltd
2009 (6) SA 295
(GNP), it did not
affect the appellant’s obligation under s 86(6) to determine
whether the consumer ‘appears to be
over-indebted’ and
whether any of the consumer’s credit agreements ‘appear
to be reckless’. By failing
to make these determinations the
appellant deprived the consumers of the benefits of a proper debt
review.
[21] In these circumstances the Tribunal was correct in
declaring that the appellant had been in repeated breach of general
conditions
A1, 2, 11 and ss 86(6), (7), and (8) read with regs
24(6),(7), (8), (9) and (10) and in finding that the said conduct was
prohibited
by the NCA.
Collection fee
[22] The appellant’s conditions
of registration as a debt counsellor required him not to engage in
any activity which would
conflict with the interests of consumers to
whom debt counselling services were provided, and not to enter into
any agreement or
engage in any activity which may prevent him from
acting in the best interests of the consumers to whom these services
were provided
(general condition A 5). One of the conditions requires
him to charge or recover fees only as provided for in the Act and
Regulations,
and not to receive fees, commission or any other
remuneration where such income may compromise his independence as a
debt counsellor
(general condition A 9). Special condition B 1 is
quite specific and prohibits a debt counsellor from receiving
payments from consumers
who have applied for debt review and from
receiving payments in respect of debts that were re-arranged. The
Debt Counselling Fee
Guidelines, in addition, make it quite clear
when legal fees may be recovered by a debt counsellor.
6
[23] In terms of the Acknowledgment
of Obligation ten per cent of the monthly payments made by the
consumers had to be deducted
and paid into the Bornman&
Associates’ trust account as a ‘collection fee’.
The balance was paid over to
the payment distribution agent.
7
The
appellant, however, stated that no ‘collection fee’ was
involved and explained that the fee was really a retainer
for an
eventual court application. He said that the words ‘collection
fee’were used because his software was pre-programmed
to refer
to the ‘retainer’ as a ‘collection fee’.
Both the Tribunal and the court below
rejected this explanation and found that the collection fee was
indeed a collection commission.
I agree with these findings but
whether commission is termed a collection fee or a retainer for an
eventual court application is
irrelevant. The appellant in accepting
the collection fee acted in clear contravention of general condition
A 5 and special condition
B 1. He also contravened para 1.7 of the
Debt Counselling Fee Guidelines.
[24] Neither the NCA nor the regulations provide for the
building up of a retainer for an eventual court application. Nor were
any
court applications launched by Bornman& Associates on behalf
of the consumers: the appellant blames the shortcomings in the
NCA
for his attempting ‘a more informal conciliatory process by
trying to obtain universal acceptance and consent …’.
Nor does it matter that the retained amounts were called ‘collection
fee’ or ‘legal fees’: their deduction
was not
authorised by the NCA or regulations.
[25] The appellant stated that hehad determined that the
collection fee be collected and paid into the trust account of
Bornman&
Associates. The appellant was asked by the Tribunal
whether he had made this decision as a debt counsellor or as an
attorney.
His response was as follows:
‘
The debt counsellor it’s debt
counselling fees and the debt counsellor makes that determination.…
Those fees, the dc
fee as well as the legal fees are a retainer. A
retainer that is earned … in the capacity as a debt
counsellor, not as an
attorney.’
So the attorney is holding the fees for the debt counsellor?
Yes.
The fees are held for the debt counsellor. The fees. The fees is not
the consumer’s money any longer.’
He further said:
‘
So the 10%, the legal fees are held to do
work for, legal work for the consumer. So it’s actually yes,
it’s held on
his behalf to do legal work.’
He continued:
‘
Uhm, it was for the retainer, it was not
taken out, it was for retainer for work that had to be done …
at this stage. That
is to ensure that payment would be made. Many
consumers just stop their payments and you do the legal work and you
have no guarantee
that you will be paid.’
[26] These responses make it clear that the appellant
accepted the collection feeas a debt counsellor. It was held in trust
for
him in that capacity.But, as I have shown, he was not entitled to
receive it. It follows that it must be repaid. The Tribunal was
therefore correct in holding that the appellant was in breach of
general conditions A1, 2, 5 and 9 and specific condition B 1,
and
that the conduct constituted prohibited conduct for the purposes of s
150(
a
).
Repayment of collection fee
[27] The appellant was ordered ‘to refund all of
his past and current clients, or consumers, all amounts taken from
his trust
account as collection commission, or retainer, or legal
fees, or under any other description as well as any other charge not
provided
for in terms of the fee guidelines’.
The
appellant contended that the Tribunal lacked the power to make this
order. Section 150 empowers the Tribunal to make orders
–
‘
(h) requiring repayment to the consumer of
any excess amount charged, together with interest at the rate set out
in the agreement;
or
any other appropriate order required to give effect to a right, as
contemplated in this Act or the
Consumer Protection Act, 2008
.’
The order made is entirely appropriate: the appellant
was never entitled to the collection fee and an order for a refund is
indeed
the only one justifiable. The collection fee was collected in
terms of the Acknowledgment of Obligation, that is, an ‘agreement’
as referred to in
s 150(
h
) and which is defined, not as a
‘credit agreement’, but as ‘an arrangement or
understanding between two or more
parties, which purports to
establish a relationship in law between those parties’.
[28] In the result the appeal should be dismissed.
Order
The appeal is dismissed with costs.
____________________
F R MALAN
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANTS:H J van der Linde SC (with him C van Rooyen)
INSTRUCTED BY: Bornman& Associates
c/o Vorster & Brandt Inc
Pretoria
CORRESPONDENTS: Symington & De Kok
Bloemfontein
FOR RESPONDENT: J A Babamia
INSTRUCTED BY: Norton Rose SA
c/oMothleJoomaSabdiaInc
Pretoria
CORRESPONDENTS: Webbers Attorneys
Bloemfontein
1
See
M L Vessio ‘What Does the National Credit Regulator Regulate?’
(2008) 20
SA Merc LJ
227 at 238-240; J M Otto and R-L Otto
The National Credit Act Explained
(2013) at 41-2 and 64-5;
Michelle Kelly-Louw with contributions by Philip Stoop
Consumer
Credit Regulation in South Africa
(2012) at 137 ff.
2
Otto
and Otto at 64.
3
These
statistics are based on
Otto and Otto at 65.
4
See
African
Bank Ltd v Weiner
2005 (4) SA 363
(SCA) para 21.
5
Ibid
para
22.
6
Para
8 above.
7
See
J W Scholtz, J M Otto, E van Zyl, C M van Heerden and N Campbell
Guide to the
National Credit Act
(2008
) at 5-9.