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[2023] ZAECMHC 4
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Nongadla v Standard Bank (Pty) Ltd (1677/2014) [2023] ZAECMHC 4 (2 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO: 1677/2014
In
the matter between:
FEZILE
NONGADLA
Applicant
and
STANDARD
BANK (PTY) LTD
Respondent
JUDGMENT
Rugunanan
J
[1]
The
applicant is a resident of Mthatha. In the circumstances set out
below (elucidated only to the extent considered relevant for
the
conclusion arrived at in this judgment), he approaches this court for
the enforcement of the provisions of section 111 of the
National
Credit Act
[1]
(‘the Act’).
He seeks an order to the effect that the delay of the respondent in
giving a written notice to him in
terms of section 111(2)(a) be
declared unlawful. In addition he seeks further orders directing the
respondent to comply with section
111(2)(a) and that it pays the
costs of the application.
[2]
It is not in issue that the dispute between
the parties arises from transactions in the applicant’s bank
account facility
held with the respondent. In argument the respondent
impermissibly attempted, without prior compliance with rule
6(5)(d)(iii),
to raise the point that the facility was not a credit
agreement as defined in the Act. As the issue had not been raised in
the
answering affidavit nor through compliance with the
aforementioned subrule, the matter was argued on the footing that the
provisions
of the Act are applicable,
[3]
Section 111 of the Act provides as follows:
‘
111.
Disputed entries in accounts
(1)
A consumer may dispute all or part of any
particular credit or debit entered under a credit agreement, by
delivering a written notice
to the credit provider.
(2)
A credit provider who receives a notice of
dispute in terms of subsection (1) -
(a)
must give the consumer a written notice either –
(i)
explaining the entry in reasonable detail;
or
(ii)
confirming that the statement was an error
either in whole or in part, and setting out the revised entry; and
(b)
must not begin enforcement proceedings on the basis of a default
arising from the disputed
entry –
(i)
until the credit provider has complied with
paragraph (a); or
(ii)
at any time that the matter is under
alternative dispute resolution procedures, or before the Tribunal in
terms of section 115.’
[4]
Section 115 of the Act deals with disputes
arising from statements. The section reads as follows:
‘
115.
Disputes concerning statements
(1)
A consumer who has unsuccessfully attempted
to resolve a disputed entry directly with the credit provider in
terms of section 111,
and through alternative dispute resolution
under Part A of Chapter 7, may apply to the Tribunal to resolve –
(a)
a
disputed entry shown on a statement of account; or
(b)
a dispute concerning a statement of
the settlement amount.
(2)
If the Tribunal is satisfied that an entry,
the settlement amount, as shown on a statement is in error, the
Tribunal may determine
the matters in dispute and may make any
appropriate order to correct the statement that gave rise to the
dispute.’
[5]
Quoting directly from the founding
affidavit, the applicant makes the following averments (all
sic
):
‘
4.
On 30
th
April 2014 I was at respondent’s Northcrest Spar automated
teller machine (ATM) for statement enquiry and cash withdrawal,
and
my card was swallowed by the machine at about 19h50. When I was in
the process of reporting the incident through the toll free
numbers
pasted on the machine, an ATM withdrawal at BP garage, Norwood
Mthatha was effected and subsequent thereto a card purchase
at
Sutherland spar Mthatha was made. I may mention that no one used the
machine as I was standing and or working on it. I may further
mention
that I had an in contact or notify me agreement with the respondent
where every transaction is reported on my cell phone.
The aforesaid
two transactions reported on my cell phone when I was still at the
ATM trying to get hold of the respondent for the
stopping of the
card. Respondent’s telephone took a very long time to be held
by the respondent’s consultants.
4.1
It became clear that my account aforesaid was debited with an amount
of R8 299 and
that amount to me is unknown.’
[6]
I pause to state it is common cause that
the applicant’s legal representatives pursuant to the
provisions of section 111(1)
of the Act delivered a written notice
dated 2 June 2014 to the respondent. The notice reflects that the
applicant’s bank
card was swallowed at about 19h50 on 30 April
2014 and what followed were a series of two transactions for the sum
of R8 299.00
that were effected against his bank account. The
notice formulates the dispute in the following terms:
‘
We
now demand, duly instructed by our client, a written notice either
explaining the entries in reasonable detail or confirming
that the
statement was an error either in whole or in part, and setting out
the revised entry.’
[7]
In answer, (and omitting irrelevant
wording) the deponent on behalf of the respondent states:
‘
11.
Ad paragraph 4 to 4.1 – The contents of these paragraphs are
denied …
11.1
It appears that the applicant’s disputed transactions occurred
at the following times:
R5 000.00
– 30 April 2014 at 19:02 pm; and
R3 299.00
– 30 April 2014 at 19:09 pm.
11.2
The applicant avers that his card was swallowed by an automated
teller machine on 30 April 2014 at about
19:50 pm.
11.3
It appears that the applicant placed a call to the respondent’s
call centre reporting the incident
after the card was allegedly
swallowed and, more importantly, after the transactions had taken
place.
11.4
The above had already been communicated to the applicant in various
correspondences during the period 2014
and 2015 geared towards
settlement of the matter.’
[8]
Elsewhere in the answering affidavit it is
stated that:
‘
12.
… the applicant had made a fraud claim for the disputed
transactions in the total amount
of R8 299.00’;
And
‘
12.1.
On or about 17 May 2014 [his] fraud claim was declined as the
applicant was a victim of a card swop and that incident
was reported
late.’
[9]
At this point, I refer to an item of
correspondence dated 14 October 2014 from the respondent’s
attorneys to the applicant’s
attorneys. Therein the respondent
proffers the detail set out in paragraphs 11.1 to 11.4 of its
answering affidavit, and further
points out that the applicant’s
attempt at contacting its call centre ‘was successful at 19h26
and his card was subsequently
stopped’.
[10]
In his replying affidavit the applicant
states:
‘
19.
Contents of paragraph 11 of answering affidavit is denied. Firstly
the time stated herein is not
consistent with the time alleged in my
founding affidavit. The time alleged in my founding affidavit is
consistent and or reflected
in my in contact or notify me facility in
my cellphone. Transaction detail information which is a computer
generated printout,
does not even deal or reflect the transaction of
R5 000.00. There is no confluence between the transaction report
and the
allegations in this paragraph.’
[11]
The applicant goes on further to state:
‘
23.
Paragraph 12 of answering affidavit is denied. There is no evidence
that my card was a subject
of card swop especially from transaction
detail information. In fact after my card was swallowed, I never
received any card from
the machine or anyone. No card swopping took
place. Accordingly, the respondent had not given any reasonable
explanation. It is
not clear where the respondent got this
information. An inescapable thought is that respondent’s
machine was used by scammers
to clone consumers’ cards and I
was a victim of a scam.’
[12]
In a further letter dated 4 February 2015
from the applicant’s attorneys the applicant adopts a change in
stance in the following
terms (all
sic
):
‘
Our
client’s notice of motion requires your client to give our
client a notice either explaining the disputed entries in “reasonable
detail”. Your client’s refusal to give us ATM number and
the call log is unreasonable.’
[13]
It is apparent that the issue relating to
the ATM number and call log was not pertinently raised in the
applicant’s founding
affidavit nor in his notice of 2 June
2014. Obvious from the wording of the notice is the time of retention
of the applicant’s
bank card followed by the alleged
transactions. That was the issue identified by the applicant (both in
his founding affidavit
and in his notice). The respondent directly
addressed the issue by identifying the time at which the transactions
were effected
and by identifying the time at which the applicant’s
card was stopped.
[14]
Considered in the proper context of the
dispute identified by the applicant in his notice of 2 June 2014, the
respondent complied
with its statutory obligation to proffer
reasonable detail in response thereto.
[15]
The belated demand for the ATM number and
the call log is considered disingenuous. It was on the basis of this
demand that the application
was set down and argued on the statutory
premise that the applicant seeks compliance with section 111(2)(a) of
the Act. My sense
is that the submission by respondent’s
counsel that the matter has become moot is not without merit.
[16]
The
excerpts are quoted above to lay emphasis on the principle that in
motion proceedings affidavits constitute both the pleadings
and the
evidence and the issues and averments in support of the parties’
cases should appear clearly therefrom
[2]
.
In motion proceedings a court will look at the founding affidavit to
determine what the complaint is – and as has been said
in many
cases an applicant must stand or fall by his founding affidavit
[3]
.
Put another way, an applicant must make out his case in the founding
affidavit – it must contain sufficient facts in itself
upon
which a court may find in the applicant’s favour. The
contemporary view articulated by the Constitutional Court in
South
African Transport and Allied Workers Union and another v Garvas and
others
[4]
is that holding parties to their pleadings is not pedantry –
it promotes legal certainty so that an opposing party
must know what
case it is required to meet.
[17]
On the facts, the applicant’s case is
that his card was swallowed at about 19h50 and the transactions
occurred while he was
in the process of contacting the call centre.
On the version of the respondent the transactions occurred at 19h02
and 19h09 and
the applicant’s ATM card was stopped or cancelled
at 19h26 – all of which occurred before the card was swallowed
and
before he attempted to report the issue. A feature of the
applicant’s reply is that he does not deny that he was the
victim
of a card scam irrespective of whether his bank card was
swopped or cloned. In addition, he expressly affirms what is stated
in
his founding affidavit regarding the time of occurrence and
sequence of events, presumably intended to illustrate the
improbability
of the respondent’s version.
[18]
On the material before this court, the
applicant is bound by what is stated in his founding affidavit and
there is clearly a dispute
of fact between the parties’
respective versions.
[19]
Tritely,
motion proceedings are not designed to determine disputes of fact
upon the basis of probabilities.
[5]
Central to the character of motion proceedings is that the evidence
is placed before the court in the form of affidavits containing
factual allegations made under oath. The factual allegations cannot
be evaluated in any manner other than in accordance with the
Plascon-Evans
[6]
rule unless the matter is referred for the hearing of oral evidence.
The affidavits are not devices for communicating submissions
on the
improbability that factual averments contained in the affidavits
deposed to by an opponent are incorrect or untrue.
[7]
[20]
In adopting the approach in
Plascon-Evans
,
the version of the respondent that the disputed transactions took
place before the card was reported should be accepted.
[21]
That approach is dispositive of the merits
of the matter.
[22]
A further aspect of the matter raised
in
limine
by the respondent is that this
court has no jurisdiction to deal with the matter as a forum of first
instance.
[23]
Section 115 of the Act deals with disputes
concerning statements. In terms of the section a consumer who has
unsuccessfully attempted
to resolve a disputed entry directly with
the credit provider in terms of section 111, and through alternative
dispute resolution,
may apply to the Tribunal to resolve –
(a)
a
disputed entry shown on a statement of account; or
(b)
a
dispute concerning a statement of the settlement amount.
[24]
In
respect of any dispute between a credit provider and a consumer, the
parties are enjoined by Section 134(4) of the Act
–
before either one of them ‘may apply directly to the
Tribunal
[8]
’:
(a)
to
attempt to resolve the matter directly between themselves; and
(b)
if
unable to do so, must refer the matter to the ombudsman with
jurisdiction; or
(c)
an
alternative dispute resolution agent.
[25]
In terms of section 148(1) of the Act a
party (referred to as ‘a participant’) in a hearing
before a single member of
the Tribunal may appeal to a full panel of
the Tribunal.
[26]
Section 148(2) provides that a party in a
hearing before a full panel of the Tribunal may apply to the High
Court to review the
decision of the Tribunal, or appeal to the High
Court against the decision of the Tribunal.
[27]
For purposes of rationalising its argument
the respondent accepts albeit without conceding that the applicant
has ‘unsuccessfully
attempted to resolve a disputed entry
directly with the credit provider’. In that event its counsel
submitted that the applicant
was obliged to approach the Tribunal
provided that there has been prior compliance with section 134(4) of
the Act.
[28]
In support of its argument the respondent
contended that the present case in which the applicant seeks
compliance with section 111(2)(a)
is administrative. It is analogous
to a situation contemplated by the amended section 71 of the Act
where a consumer applies for
a clearance certificate relating to a
debt rearrangement and the debt counsellor either decides not to
issue the certificate or
fails to do so. In this scenario the
consumer may apply to the Tribunal to review that decision and if the
Tribunal is satisfied
that the consumer is entitled to the
certificate it may order the debt counsellor to issue it.
[29]
It
was held in
Du
Toit v Benay Sager t/a Debt Busters and Others
[9]
that the process set out in section 71 is administrative and not
judicial. It is only the Tribunal that is empowered to assist
the
consumer at first instance – the Act does not afford the
High Court the jurisdiction to deal at first instance with
matters
falling within the province of the Tribunal. The role of the High
Court in the legislative scheme is limited to dealing
with judicial
reviews of, or appeals from, the decisions of the Tribunal.
[30]
With regard to the above it is edifying to
repeat in full the reasoning and pronouncement of the court in
Du
Toit
:
‘
[27]
In my view, the general thrust of the NCA, and in particular the
consumer credit policy under Chapter
4, places the primary
jurisdiction of consumer rights, consumer credit records and
over-indebtedness and reckless credit, in the
debt counsellor,
National Credit Regulator, the Tribunal and the Magistrate’s
Courts, the latter two being subject to the
supervision and inherent
jurisdiction of the High Courts. The nature of the work set out for a
debt counsellor, the NCR or the
Tribunal in such circumstances, in my
view, is necessary for a credible market place. Such an investigation
cannot be avoided by
simply crying lacunae and running to the High
Courts, and thereby avoiding a proper investigation by the debt
counsellor, the NCR
or the Tribunal into the credibility of the
information that sustains the alleged change in the financial
position of a consumer.
Under the circumstances, in my view, there is
no good cause for the quantum leap out of the domestic remedies
available to the
applicant by statute, into the recourse to the
courts, until the final stage and until the applicant has exhausted
his statutory
remedies. The application to the High Court is
premature.
[28]
It follows, in my view, that the High Court is not the forum of first
instance on matters which
both the Tribunal and the Magistrate’s
Courts should deal with. Under circumstances where there are various
Tribunal’s
under the NCA are open to an applicant, it is
preferable that the intervention of the High Court be deferred until
the domestic
remedies provided for in the NCA have been exhausted,
unless the very complaint is the legality of fundamental irregularity
of
the decision sought to be challenged (Welkom Village Management
Board v Leteno
1958 (1) SA 490
(A) at 501C-503H).
[29]
Where the legislature has spared the High Courts from such primary
tasks as a form of first instance
in such elementary investigations,
in my view, that ordination should not be departed from at the
slightest indication and for
light and flimsy reasons. The applicant
had an option to simply challenge the information held by the credit
bureau, and if the
credit bureau did not remove the information, it
would have led to an investigation of his true financial position by
the NCR leading
up to, if needs be, the full panel of the Tribunal
deciding the matter. There is no explicable reason given by the
applicant as
to why this path was not followed. Secondly, the refusal
of the first respondent to issue the applicant with a clearance
certificate
is a decision that is reviewable by the Tribunal. There
is no reason advanced as to why the applicant did not approach the
Tribunal
for intervention.’
[31]
The
approach in
Du
Toit
was
adopted and followed by the full Court of this division in
Transunion
Africa (Pty) Ltd v Ngcenge
[10]
.
[32]
The
applicant meets the argument
in
limine
with a two-fold contention. In the first instance it is argued that
that there has been non-compliance by the respondent with its
statutory obligation to have given him a written notice as
contemplated by section 111(2). Taken further, the argument is that
there has been a breach of a statutory duty rendering it a legality
issue which invokes the jurisdiction of this court to adjudicate
the
matter and afford redress.
[11]
Having found that the respondent proffered reasonable detail the
implicit conclusion in my view is that it has complied with its
statutory obligation. The legality argument does not assist the
applicant.
[33]
The applicant argues in the second instance
that section 115 of the Act is couched in permissive language.
Accordingly, it does
not oust the jurisdiction of this court to
adjudicate the matter.
[34]
In
Helen
Suzman Foundation v Speaker of the National Assembly and Others
[12]
the court approved the
dictum
explained as follows by the Appellate Division in
Schwartz
v Schwartz
[13]
:
‘
A
statutory enactment conferring a power in permissive language may
nevertheless have to be construed as making it the duty of the
person
or authority in whom the power is reposed to exercise that power when
the conditions prescribed as justifying its exercise
have been
satisfied. Whether an enactment should be so construed depends on
inter alia
the language in which it is couched, the context in which it appears,
the general scope and object of the legislation, the nature
of the
thing empowered to be done and the person or persons for whose
benefit the power is to be exercised.’
[35]
As the applicant’s complaint is
purely administrative in nature he was bound to follow the course
ordained in section 115
of the Act which he has failed to do. In the
circumstances, the pronouncements in the
dicta
cited in the preceding paragraphs impel me to the conclusion that
this court has no jurisdiction to hear the matter.
[36]
I consider as well that this court to be
bound by the Full Court in
Ngcenge –
but should I be mistaken, the application nonetheless falls to be
dismissed on its merits.
[37]
There remains the outstanding issue
relating to costs. I do not intend belabouring this judgment with
factual minutiae. This application
was issued on 26 June 2014.
Following an order granted on 26 April 2022 the matter was removed
from the unopposed roll where it
had been enrolled as an uncontested
opposed matter. The order directed the respondent to file its
answering affidavit on or before
17 May 2022. The order is silent on
whether condonation was granted to the respondent. The costs of the
hearing of 26 April 2022
were reserved. The respondent complied with
the order whereafter the matter proceeded to argument on the opposed
motion court roll
on 3 November 2022 with condonation being
granted for the purpose of finality in the matter in the interests of
justice.
[38]
In the period between 26 June 2014 and 26
April 2022 – a hiatus of almost 8 years – the applicant
similarly defaulted
by failing to take steps to have the matter set
down for hearing on an expedited basis in accordance with rule
6(5)(f)(i) of the
Uniform Rules of Court. Overall, the respondent
contended for the reserved costs to be declared costs in the cause
and that such
costs be punitive on the basis that the applicant’s
legal representative had first-hand knowledge of the decision in
Ngcenge
in
which the said representative appeared in that matter. It was also
contended that the denial on oath by the applicant of the
establishment of the Tribunal (i.e. the National Consumer Tribunal)
as a mechanism for giving effect to section 115 of the Act
was
‘shocking’. Although these submissions were not countered
in replying argument, neither party took this court into
their
confidence by unequivocally explaining their default in the conduct
of the matter. The court nonetheless derived assistance
from the
parties’ legal submissions on the material raised on the
merits, as well as their submissions
in
limine
.
[39]
The principle that costs should follow the
result must therefore apply, though I think it is eminently sensible
in the exercise
of my discretion on the question of the reserved
costs to make the order reflected below.
[40]
In the result, I make the following order:
1.
The application is dismissed with costs.
2.
Each party shall pay their own costs in
respect of the reserved costs attendant on the order of 26 April
2022.
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the Applicant:
A.
S. Zono
A.
S. Zono & Associates
Mthatha
Tel: 083 364 3515 or
047- 532 4263
Email:
zono@telkomsa.net
aronsiphozono@gmail.com
(Ref: Mr Zono)
For
the Respondent:
D.
C. Bothma
Instructed
by
Venter & Associates Inc.
Blackheath
(Ref: H. Aravelo)
Tel: 087 945 0300
Email:
helen@venterinc.co.za
c/o Drake Flemmer &
Orsmond Attorneys
Mthatha
Date
heard:
03 November 2022.
Date
delivered:
02 February 2023.
[1]
Act 34 of 2005
[2]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D.
[3]
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A) at 635H-636B.
[4]
2013 (1) SA 83
(CC) para 114.
[5]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
[6]
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C.
[7]
National
Director of Public Prosecutions v Nqaba Mpahlwa
[2020]
ZAECMHC 18 para 21.
[8]
i.e. the National Consumer Tribunal established by section 26 of the
Act.
[9]
[2017] ZAWCHC 141
para 17.
[10]
[2021] ZAECHCMC 40
[11]
Reliance in this regard is placed on
MEC
for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd
2014 (3) SA 481
(CC) para 103, where it is stated: 'The courts
alone, and not public officials, the arbiters of legality’ and
at footnote
78 of the judgment where reference is made to
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO and Others
2012 (3) SA 325
(SCA) for authority for the proposition that ‘The
court as the font of legality, has the means itself to assert the
dividing
line between what is lawful and not lawful.’
[12]
[2020] ZAGPPHC 574 para 50.
[13]
1984 (4) SA 645
(AD) at 650.