Some South Africans are having their cars ‘repossessed’ in shopping malls – what you should know

 ·10 Oct 2021

The Ombudsman for Banking Services (OBS) has seen an increase in complaints from people alleging that their vehicles were repossessed without them signing a voluntary termination letter or being shown a relevant court order.

To date, the OBS has received over 460 vehicle finance-related complaints, said ombudsman Reana Steyn.

Steyn said that she has heard of instances where people have been approached at shopping malls by people advising they work for the bank and were there to repossess their vehicle due to non-payment.

Other complainants have said that they were coerced into giving the vehicle back to the bank.

Steyn cautioned people against giving away their movable properties unless the person provides proof that they are the Sherriff of the Court and provides an original court order authorising them to repossess the asset.

In the absence of a court order, the only other way that moveable assets – such as vehicles – can be repossessed is if the customers voluntarily give the property back to the bank by signing a voluntary termination notice, she said.

“Consumers must make sure they understand exactly what they are signing before providing their signature to any documents, particularly when they are in default with their vehicle finance agreement”.

Steyn said that the OBS has received and investigated numerous complaints where bank customers alleged that the bank repossessed their vehicles without a court order nor a written/signed voluntary termination notice by the bank customer.

“In some instances, the bank would have obtained a signed VTN letter but failed to comply with the requirements as set out in terms of Section 127 of the National Credit Act.

“Where the OBS found that the vehicle was sold without the bank following the prescripts of Section 127 of the National Credit Act, such as sending a letter to the customer advising of how much the vehicle/asset was valued for, the OBS recommended that the bank writes off the outstanding balance or pay a distress and inconvenience award to the impacted consumer. ”

In these matters, each case is decided on its own merits and the distress and inconvenience awards given are intended to ensure that banks avoid similar instances. These payments are not aimed at enriching consumers, Steyn said.

Recent case 

In a recent matter handled by the OBS, a consumer advised that his car was forcefully taken away from him by the bank without his consent.

Upon investigation of the complaint, it was noted that the consumer’s attorneys had addressed letters to the bank challenging the lawfulness of the repossession by the bank. The bank’s lawyers had responded advising that the bank’s actions, including how the vehicle was taken, were legal.

“Since no court order had been obtained by the bank to repossess the vehicle, the OBS requested that the bank to provide a written voluntary termination notice complying with the prescripts of Section 127 of the National Credit Act,” the ombudsman said.

“The bank then advised that the vehicle had been taken from the complainant’s son and that no written voluntary termination notice was obtained from the complainant.”

In this matter, Steyn said that her office recommended that the vehicle be immediately returned to the complainant and that the interest, storage and tracing fees, and any other charges added to the consumer’s account after the vehicle was unlawfully taken, be written off.

The bank agreed with the OBS’s recommendation, but the consumer refused to take back the vehicle and advised the OBS that he would be signing the voluntary termination notice.

Steyn explained that the two scenarios mentioned above are particularly relevant today as more consumers continue to experience financial challenges and are therefore defaulting on their repayment obligations.

“Consumers must remain aware that, in the OBS, they have an organisation, that is there to ensure that the banks act and treat consumers fairly. This is especially relevant in these trying times.”

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