The complainant successfully applied for debt review and a debt rearrangement order was granted in June 2019. In July 2021, the complainant obtained an order from the Magistrates court, declaring that he was no longer overindebted. Based on this order, he requested his credit providers remove his debt review listing.
The bank refused to remove the listing and relied upon the Debt Review Withdrawal Guidelines which provided that the only way to exit debt review after a court order is granted rearranging the debts, is by way of a clearance certificate.
During our investigation, consideration was given to the case of Van Vuuren v Roets and Others (37407/2018) [2019] handed down by the High Court, and upon which the withdrawal guidelines were based.
As per the judgment and the guidelines, where no debt rearrangement order has been granted, a consumer/debt counsellor may apply to the Magistrates court for an order declaring the consumer no longer overindebted.
In this instance, a consent order was granted by the National Consumer Tribunal (NCT). In terms of section 152 of the National Credit Act 34 of 2005, an order granted by the Tribunal has the same force and effect as a High Court order. Therefore, it can be concluded that a consent order granted by the NCT in respect of the rearrangement of a consumers debts, constitutes a court order, and therefore the only way to exit debt review thereafter is by way of a clearance certificate in accordance with section 70.
Considering the law, case law and the facts of the matter, we were unable to instruct the bank to remove the listing unless a clearance certificate could be provided.
Principle: Banks have a legal duty to ensure that they comply with the law. A finding cannot be made against a bank where it can show that it acted in accordance with its legal duty and where it can show that it did not act unfairly or unreasonably.
