FAQ (Frequently Asked Questions)

• What is the National Consumer Tribunal?

  The National Consumer Tribunal is an adjudicative body established in terms of Section 26 of the National Credit Act 34 of 2005. The National Credit Act became law in South Africa in 2006, and established the National Consumer Tribunal.

  The National Consumer Tribunal is an independent body whose aim is to achieve fairness and justice for everyone in the consumer and credit market. The Tribunal achieves its aim by fairly and independently adjudicating on disputes about consumer credit. The Tribunal hears all sides of an argument before making a decision. A decision made by the Tribunal has the same status as one made by the High Court of South Africa.

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• How many members does the Tribunal have?

   Section 26 of the Act provides for the President to appoint a Chairperson and not fewer than 10 members. All the members can be appointed on a full time or part time basis.

  The President appointed the full complement of the Tribunal members, namely the Chairperson and 14 members in September 2006.

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• Who are the Chairperson and Deputy Chairperson?

  Chairperson: Ms Diane Terblanche

  Deputy Chairperson: Prof Bonke Dumisa

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• What is the role of the Tribunal?

  The role of the Tribunal is to adjudicate on applications and allegations of prohibited practice made in terms of the National Credit Act 34 of 2005 (the NCA) and the Consumer Protection Act 68 of 2008 (CPA). Applications can be brought by consumers, registrants, consumer courts, the National Credit Regulator or the National Consumer Commission. The National Credit Regulator, the National Consumer Commission, and in certain instances complainants, may refer cases of alleged prohibited conduct to the Tribunal for a determination.

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• What is a registrant?

  The Act requires certain entities, organisations or individuals to register with the National Credit Regulator. Their conduct and operations are regulated by the Act. Registrants are:

  • Credit providers – they are regulated in the type of credit agreements that may be offered, the credit granting process, disclosure, fair lending, fees and charges, and various other matters.
  • Credit bureaux – they are regulated in their manner of verification and retention of consumer information, access to this information, and in other respects.
  • Debt counsellors – their role and functions are set out in the Act.

   (These are entities are collectively referred to as “registrants”.)

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• Who can lodge an application with the Tribunal?

  In terms of Section 137, the following parties can lodge a complaint with the Tribunal:

  • The National Credit Regulator;
  • A registrant or potential registrant;
  • A credit provider; or
  • A consumer.

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• When can an application to the Tribunal be lodged?

  An application can be lodged at any time within 20 business days after the decision by the Credit Regulator that is the subject of the application, the failure of attempted alternative dispute resolution, or such longer time as approved by the Tribunal on good cause shown. Parties who want notices issued by the Regulator in terms of Section 54 and 55 must lodge such applications within 15 days after receiving the notices, or such longer time as the Tribunal may approve on good cause shown.

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• Can a credit provider and a consumer apply directly to the Tribunal in respect of a dispute?

  A credit provider and consumer may approach the Tribunal directly only once the parties have attempted but failed to resolve the matter between themselves or through Alternative Dispute Resolution where the parties failed to resolve the matters between themselves. If this fails the consumer must refer the matter either to the Ombud with jurisdiction, if the credit provider is a financial institution, or in any other case to a consumer court or alternative dispute resolution agent (s134(4)).

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• Under what circumstances can a party approach the Tribunal directly?

  The Act sets out various instances where a consumer, a credit provider, registrant or National Credit Regulator can approach the Tribunal directly.
  
  Complaints

  - When the National Credit Regulator issues a notice of non-referral if the complaint appears to be frivolous or vexatious, or does not allege any facts which, if true, would constitute grounds for remedy under the Act (s139(1)(a)).

  - When, after completing an investigation into a complaint, the National Credit Regulator decided not to refer the matter (s140(1)(a)).

  - At any time, whether or not a hearing has commenced into a complaint, a complainant may apply to the Tribunal for interim (urgent) relief (s149).
  
  Registrants or potential registrants

  Registrants and aspirant registrants aggrieved by a decision of the Regulator may apply to the Tribunal to:

  - review a compliance notice issued by the Regulator in terms of Section 55; or

  - review all other decisions of the Regulator in terms of Section 59.
  
  Consumers

  Consumers may apply for various orders, including an order:

  - To compel a credit provider to produce a statement of account;

  - For a credit provider to compensate a consumer after the sale of surrendered goods;

  - For a pawnbroker to compensate a consumer for goods left with a pawnbroker;

  -To review the sale of goods (s128(1)); and

  - To review the decision of a debt counsellor not to issue a clearance certificate in terms of Section 71(3).
  
  Credit providers

  Credit providers may approach the Tribunal where a credit provider requires a reduction in its obligation to the consumer regarding the following requests by the consumer where the credit provider regards the requests to be frivolous:

  - A request for reasons where credit has been declined;

  - Requests for copies of documents;

  - Delivery of statements;

  - Requests for statements of settlement amounts; and

  - Where a credit provider wants its obligations to provide access to records relating to credit reports to be limited (s72).
  
  Credit bureaux

  Credit bureaux may approach the Tribunal:

  - When they want their obligations to provide access to records relating to credit records to be limited (s72).
  
  National Credit Regulator

  - Failure to comply with a compliance notice in terms of (s55(6)):

  - Cancellation of registration (s57);

  - Limit obligations to consumer s right to access credit records and information (s72(6));

  - Failure to meet obligations under Section 81 – prevention of reckless credit.

   

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• What process should I follow when I want to lodge an application with the Tribunal?

  The process is set out in the Rules for the Conduct of matters before the Tribunal published in the Government Gazette number 30225 dated 28 August 2007. The rules specify the forms to be used, any applicable time limits for submitting the matter to the Tribunal, persons to be notified, documents to be handed out to the parties involved, types of supporting documents required, and the application fee payable where necessary.
  
  The following basic steps must be followed:

  Step 1   Identify and fill in relevant form for your application.

  Step 2   Provide required documents.

  Step 3   Pay required fee where necessary.

  Step 4   Notify affected parties of application.

  Step 5   Serve documents on affected parties and acquire proof of service.

  Step 6   File with the Tribunal.

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• Is there a time limited as to when matters can be referred to or brought before the Tribunal?

  Yes, matters cannot be referred or brought to the Tribunal after three years from the date when the conduct or the practice that is the cause of the complaint stopped.

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• Is the National Consumer Tribunal independent of the National Credit Regulator and the National Consumer Commission?

  Yes. The Tribunal is independent of the National Credit Regulator and the National Consumer Commission and, among other things, reviews decisions by these Regulators.

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• Can a person approach the National Consumer Tribunal and the civil courts at the same time?

  While parties are free to approach the courts, the Act has tried to limit instances where parties can approach the Tribunal and the courts at the same time. Under certain circumstances, with the exception of the High Court, the courts can refer matters to the Tribunal, where a matter was already being considered or should have been considered by the Tribunal.

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• When can a court not hear matters falling under the jurisdiction of the National Consumer Tribunal?

  Where the Tribunal has heard a matter and made a decision, the court may not consider the merits of the case, but should apply the decision of the Tribunal. Where the Tribunal has not previously dealt with the matter, the court can either deal with the matter or refer it to the Tribunal. With regard to debt enforcement procedures in the courts, the courts must also satisfy themselves that there is no matter pending before the Tribunal that could result in an order affecting the issues to be determined by the court.

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• What is the role of the courts?

  Besides dealing with offences in terms of the Act, certain matters can only be judged by the courts and not the Tribunal. These matters include but are not limited to:

  1. Debt enforcement through repossession or judgement;
  2. Declaring credit agreements to be reckless, and the suspension of reckless credit agreements;
  3. Rearranging consumers’ obligations under credit agreements;
  4. Enforcing credit agreements when consumers are in default;
  5. Compensation to credit providers;
  6. Authorising searches and searches and seizures; and
  7. Declaring provisions in agreements or entire agreements to be unlawful and void from inception.

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• “Ombud with jurisdiction” and the National Consumer Tribunal

  The Act recognises Ombudsman that are accredited in terms of the Financial Services Ombudsman Schemes Act (FAIS Act 37 of 2004). If the credit provider is a financial institution as defined in the Act, a person may refer a matter that could be the subject of a complaint to an Ombud with jurisdiction as an alternative to referring the complaint to the National Credit Regulator, to be resolved procedurally as if it were a complaint in terms of the Act (s134(1)(a)). These Ombuds can settle disputes between credit providers and consumers, and agree on consent order. However, a consumer who is not happy with the decisions of an Ombud can always approach the National Credit Regulator or the Tribunal, depending on the type of complaint.

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• Consumer courts and the National Consumer Tribunal

  A person may refer a matter that could be the subject of a complaint to a consumer court for resolution in accordance with the National Credit Act and the provincial legislation establishing the consumer court (s134(1)(b)(i)).

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• Alternative dispute resolution agents and the National Consumer Tribunal

  A person may refer a matter that could be the subject of a complaint to an alternative dispute resolution agent (ADR Agent) for resolution by conciliation, mediation or arbitration (s134(1)(b)(ii)). The respondent may object to the referral in writing within 10 days, in which case the matter may not be resolved by an ADR Agent (s134(2)(a)) and be dealt with either as a complaint, if it is the proper subject of a complaint, to the National Credit Regulator (s134(2)(b)) or as a deemed application to the National Consumer Tribunal, if the matter is the proper subject of an application to the Tribunal (s134(2)(c)). In the latter instance, before any party may directly apply to the Tribunal, they must attempt to resolve that matter directly between themselves, and if unable to do so refer it to an Ombud with jurisdiction or in any other case to a consumer court or an ADR Agent (s134(4)).

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• What can the outcome of an alternative dispute resolution process be?

  If an Ombud with jurisdiction, consumer court or ADR Agent resolves a dispute between a consumer and a credit provider, the agreement reached may be confirmed by the Tribunal or the court as a consent order. Debt counsellors can also apply for consent orders where they have concluded a voluntary debt reconstructing agreement with credit providers on behalf of a consumer.
  
  If an Ombud with jurisdiction, consumer court, or ADR Agent fails to resolve a dispute between a person and a credit provider, the matter may be referred to the Tribunal if it could be the subject of an application to the Tribunal in terms of the Act.
  
  If the matter relates to a complaint concerning an alleged contravention of the Act, any person may submit the complaint to the National Credit Regulator.

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• Can the Tribunal impose criminal penalties?

  No. Only the Magistrates Courts may impose the penalties for offences created under the Act.

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• What is the role of the criminal courts?

  The Act creates two types of offences, those relating to the general administration of the Act, and those relating to the enforcement actions of the Regulator and the Tribunal. Offences under the Act are referred to the National Prosecuting Authority and the criminal courts for prosecution. These offences include breach of confidence concerning the affairs of a person whilst carry out a function under the Act under certain circumstances; hindering administration of the Act; failure to attend when summonsed; failure to answer truthfully; failing to comply with an order by the Tribunal; improperly influencing the Tribunal; and the offences crated in Section 136(2)(a)-(h). Special offences are also created in relation to credit bureaux and credit providers. For example, where a credit bureau fails to comply with a compliance notice issued by the National Credit Regulator, relating to failure by a credit bureau to comply with Section 71 which requires to remove information relating to a rescinded judgement or the fact that a consumer was under debt rearrangement after the consumer was issued with a clearance certificate by a debt counsellor.

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• What penalties can the courts impose for offences under the Act?

  The Act creates two types of offences, those relating to the general administration of the Act, and those relating to the enforcement actions of the Regulator and the Tribunal. Two types of penalties apply:

  1. In the case where the offence relates to hindering the work of the Tribunal or Regulator, a fine or imprisonment not exceeding 10 years or both; or
  2. For all other offences (failure to answer truthfully, failure to attend when summonsed, breach of confidence and hindering administration of the Act) a fine or imprisonment not exceeding 12 months, or both.

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• What orders can the Tribunal make?

  The Tribunal can:

  1. Grant interim relief;
  2. Declare conduct to be prohibited;
  3. Issue an interdict for prohibited conduct;
  4. Impose administrative fines
  5. Confirm consent orders;
  6. Condone non-compliance with its rules and procedures;
  7. Confirm an order against an unregistered person to cease engaging in any activity which has to do with the Regulator;
  8. Cancel or suspend a registrant’s registration;
  9. Require payment to the consumer of any excess amount charged, together with interest at the rate set out in the agreement; and
  10. Any order required to give effect to a right set out in the Act.

  The Tribunal can also, in terms of Section 137, make orders to:

  1. Resolve disputes over information held by a credit bureau;
  2. Compel the delivery of a statement of account or review of a statement;
  3. Review the conduct of the sale of goods or the distribution of proceeds from such a sale where a consumer has surrendered goods to a credit provider;
  4. Grant leave to bring a matter directly to the Tribunal; and
  5. Condone a late filing.

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• What is the maximum administrative fine the Tribunal may impose?

  The Tribunal may impose an administrative fine which does not exceed 10% of the respondent’s annual turnover during the preceding financial year, or R 1 000 000,00 whichever is the greatest.

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• What factors does the Tribunal have to take into account when determining administrative fines?

  The Tribunal will look at the type and seriousness of the offence, any loss or damage suffered as a result of the non-compliance with the Act, and the level of profit derived from existing and previous illegal actions.

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• Can the Tribunal make a compensation order to a consumer?

  Yes. Section 138 provides that where a matter has been investigated by the Regulator, and the respondent agrees to the proposed terms of an appropriate order, the consent order may include an award of damages to the complainant. Section 128(2) provides for the Tribunal to make compensation order in favour of a consumer where it can be shown that a credit provider did not follow the correct procedures in selling property that was surrendered by a consumer in terms of Section 127.

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• Can the Tribunal order compensation to a credit provider?

  No. Section 132 provides that a court can award compensation to a credit provider where a consumer has defaulted.

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• Can the Tribunal award damages?

  The Tribunal cannot award damages to a person. A person who has suffered loss or damage as a result of prohibited conduct or dereliction of required conduct may commence action in the civil court for the assessment of the amount or award of damages, upon filing a notice from the Chairperson of the Tribunal certifying amongst others that the conduct constituting as a basis for action has been found to be prohibited conduct.

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• What is the status of the orders of the Tribunal?

  Tribunal orders have the same status as orders of the High Court.

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• Are Tribunal decisions binding?

  Any decision, judgement or order of the Tribunal is binding on the National Credit Regulator, Provincial Credit Regulators, Consumer Courts, Alternative Dispute Resolution Agents or Ombuds, Debt Counsellors, and Magistrates’ Courts.

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• Are the Tribunal hearings open to the public?

  In terms of Section 142, the Tribunal must conduct its hearings in public. The Tribunal can exclude certain members of the public from hearings to protect confidential information or for any other reason that can be justified in civil proceedings of a High Court.

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• What are the requirements the Tribunal hearings must comply with?

  The Act sets out a number of important requirements that must be followed for the hearings:

  • Hearings must be in public

  A presiding member may only deny the public access to a hearing if:

  - Evidence being presented is confidential and cannot be protected in any other way.

  - The presence of the people will interfere with the proper conduct of the hearing; or

  -For any other reason that would apply in civil proceeding s in the High Court.

  • Hearings must be inquisitorial

  The Act provides that any of the following persons may participate in a hearing, either in person or by way of a representative; can ask witnesses questions; and inspect any books, documents or items presented at the hearing:

  1. The National Credit Regulator;
  2. The applicant or complainant;
  3. In the case of unfair discrimination, the consumer or prospective consumer;
  4. The respondent; and
  5. Any other person who has successfully applied to intervene in the matter.

  All parties referred to above must apply the relevant rules of the Tribunal for their participation at the hearing.

  • Hearings must conform to the principles of natural justice

  This means that the Tribunal, before making any decision, must ensure that its procedures and adjudication of cases are fair and unbiased.

  • Hearings must be as expeditious as possible

  This requirement puts a heavy responsibility on the Tribunal member in charge. They are required to prepare in advance and ensure that all necessary allegations have been made, evidence gathered, witnesses summoned, and procedural requirements adhered to, so that the matter may be dealt with at a single sitting of the Tribunal, if possible.

  • Hearings must be as informal as possible

  The Tribunal member in charge must hold a discussion with the parties before the hearing to determine the manner in which the dispute must be resolved. Informal hearings enable the parties to resolve their dispute with very little procedures to be followed.

  • The Tribunal is a Tribunal of record

  All proceedings of the Tribunal, informal and formal, must be accurately and diligently recorded. Such records may be used should the decision of the Tribunal be appealed or reviewed by the High Court.

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• Can one appeal and/or review a decision taken by the Tribunal?

  Yes. The decisions of the Tribunal may be reviewed in two ways:

  1. Decisions by one member of the Tribunal can be appealed to a panel with three members of the Tribunal; and
  2. Subject to the rules of the High Court, decisions by a three-member panel can be appealed or reviewed by the High Court.

  Decisions by the Tribunal relating to consent orders concluded in terms of Section 138 cannot be appealed or reviewed. A decision by one member can only be appealed but not reviewed.

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• What is the status of a consent order, and what does this mean?

  Once an agreement reached by a consumer and credit provider has been approved either by the Tribunal or the courts, it becomes a court order which is binding on all the parties involved. This means that if the parties do not adhere to the terms of the consent order, the non-adherence constitutes contempt of court, and the matter can be referred for criminal prosecution.

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• Where is the Tribunal located?

  Physical address

  Ground Floor

  East Wing, Building B

  Lakefield Office Park

  272 West Avenue

  (cnr West Ave and Lenchen Ave North)

  Centurion

  0157

  Postal address

  Private Bag X110

  Centurion

  0046

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• What are the Tribunal’s contact details?

  Tel                          012  683 8140

  Fax                         012 663 5693

  Email                     registry@thenct.org.za

  Website               www.thenct.org.za

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