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[2016] ZAWCHC 139
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Nedbank Limited v Jones and Others (24343/2015) [2016] ZAWCHC 139; 2017 (2) SA 473 (WCC) (12 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 24343/2015
In
the matter between:
NEDBANK
LIMITED
Applicant
and
LEONARD
ROBERT JONES
First
Respondent
SONJA
JOAN JONES
Second
Respondent
STEPHANIE
CHARLENE
HODGE
Third
Respondent
MAGISTRATE
NAIK N.O.
Fourth Respondent
MAGISTRATE
FOURIE N.O.
Fifth Respondent
FIRSTRAND
BANK
LIMITED
Sixth Respondent
STANDARD
BANK
LIMITED
Seventh
Respondent
DIRECT
AXIS (PTY)
LIMITED
Eighth Respondent
ABSA
BANK
LIMITED
Nineth Respondent
EASTON
BERRY
INC
Tenth Respondent
WOOLWORTHS
HOLDINGS
LIMITED
Eleventh Respondent
MARKHAMS
(PTY)
LIMITED
Twelfth Respondent
THE
FOSCHINI GROUP
LIMITED
Thirteenth Respondent
TRUWORTHS
LIMITED
Fourteenth Respondent
EDGARS
CONSOLIDATED STORES
LIMITED
Fifteenth Respondent
JUDGMENT
DELIVERED ON 12 OCTOBER 2016
GAMBLE,
J:
INTRODUCTION
[1]
This
application involves the interpretation of the provisions of sections
86 and 87 of the National Credit Act, 34 of 2005 (“the
NCA”).
It follows on the judgment in the Port Elizabeth High Court delivered
by Goosen J (Beshe J concurring) in
Norris
[1]
and
seeks to review a decision by the fourth respondent (a magistrate for
the district of Paarl) to vary a contractually agreed
provision in a
credit agreement subject to the NCA, as also an order for declaratory
relief.
[2]
The applicant (“the
bank”) was represented by Mr SC Rourke SC from the Port
Elizabeth Bar. The first and second respondents
(“the Jones’”)
were represented by a local firm of attorneys who, due to a lack of
funds, were unable to represent
them before this court and who
indicated that their clients would abide the decision of the court.
In light of the importance of
the points raised by the bank in this
matter, the court (with the prior consent of the attorneys for the
bank) requested the appointment
of an
amicus
curiae
by the Cape Bar
Council. Adv J.W. Jonker, a practitioner well versed in NCA matters,
kindly offered his services. The court is
indebted to Mr Jonker for
his able argument which has assisted the court in coming to a just
decision in this matter.
THE
MATERIAL FACTS
[3]
On 4 February 2010 the
third respondent, a debt counsellor duly registered under the NCA,
brought an application for debt review
in terms of section 86 of the
NCA on behalf of the first respondent and his wife (the second
respondent to whom he is married in
community of property) before the
fourth respondent (“the magistrate”), citing the bank, as
well as the 6
th
to 15
th
respondents herein, as respondents before that court by virtue of the
Jones’ indebtedness to each of them in varying amounts.
[4]
On 4 March 2010 the
magistrate granted leave to the debt counsellor to bring the
application in terms of section 86 of the NCA.
He further found that
the Jones’ were over-indebted in terms of section 79 of the NCA
and on 8 June 2010 made an order for
debt re-arrangement in terms of
sections 86 and 87. For present purposes it is only necessary to deal
with the re-scheduling of
the bank’s debt as it is the only
creditor which has challenged the order.
[5]
The bank is a registered
credit provider under the NCA and it concluded various credit
agreements with the Jones’ over the
years. The most recent of
those was concluded on 19 January 2007 – a home loan
agreement in the initial sum of R1,1m
with a first mortgage bond
registered over the family home to serve as the bank’s
security. The agreement contemplated monthly
repayments in the amount
of R10 491 over 336 months and recorded that the initial
interest rate on the finance agreement was
to be 10, 9% per annum.
That rate was said to be variable at the instance of the bank.
[6]
In granting the debt
re-arrangement proposal the magistrate ordered that the home loan
(the balance then said to be in excess of
R 2, 2m) was to be
restructured so that the monthly instalment would be R 4007, 06 and
the interest rate would be fixed at 10.4%
per annum, while the
repayment period was left open-ended on the basis that the instalment
would be payable “
till
debt settled”.
The
bank points out that at the time the rearrangement order was made the
contractual instalment was R 17 343, 75 per month and
the interest
rate 8, 9% per annum. The order granted, says the bank, is not even
sufficient to cover the monthly interest payable
on the loan.
[7]
Dissatisfied with the
nature and extent of the order, the bank sought to apply for
rescission thereof on 14 November 2013 on the
basis that the order
was void
ab origine
.
At that stage the application was grossly out of time and an
application for condonation accompanied the application for
rescission.
This application did not proceed and was withdrawn by the
bank on 23 May 2014. It seems as if the reason therefore was that
there
were fatal procedural defects in the application for
rescission.
[8]
A fresh application for
rescission (together with an application for condonation for the late
filing thereof) was launched in the
Magistrate’s Court, Paarl
on 5 August 2014. On 8 April 2015 the presiding magistrate refused to
condone the late filing of
the rescission application and accordingly
the order of 8 June 2010 stood. Undeterred by this development, the
bank soldiered on.
THE
BASIS FOR THE CURRENT APPLICATION
[9]
On 15 December 2015 the
bank approached this court and launched the present application for
declaratory relief and, if considered
necessary, review of the order
of the magistrate of 8 June 2010. Condonation was sought for the
delay in bringing the proceedings
more than 5 years after the event.
[10]
In the founding affidavit
in support of this application a senior manager in the bank’s
Debt Rehabilitation and Recovery Services
Department, Ms Hartley,
explains the historical background to the application as set out
above. She asserts that the magistrate
was neither empowered to grant
an order which varied the interest rate agreed upon, nor
permitted to order that the rate
be fixed indefinitely. In the
circumstances, it is averred, the order is void in terms of section
36 (1) (b) of the Magistrates
Court Act, 32 of 1944 and may, in any
event, be ignored with impunity on the basis that it does not exist
as a formal order, alternatively
that it falls to be rescinded in
terms of the said section 36 (1) (b).
[11]
The founding affidavit of
Ms Hartley contains extensive detail regarding the manner in which
the bank functions in terms of its
so-called “Primary Lending
System” and, importantly, of the liquidity requirements which
the South African Reserve
Bank imposes on the various commercial
banks licensed to operate in the country, requirements which are in
place to ensure the
ongoing commercial viability of the banks.
I do not think it necessary to traverse all of the detail furnished
by Ms Hartley
in relation to the impact which an order such as that
granted by the magistrate has on a particular bank’s liquidity.
Suffice
it to say that the explanation is compelling and unless
proper procedures are followed in re-scheduling debt the effect could
be
to inadvertently disturb a bank’s liquidity by increasing
its debt provisions beyond that known to the bank on a day-to-day
basis. The consequences, therefore, of a plethora of such orders
being granted countrywide on a daily basis can seriously impact
on
the general liquidity of the lending industry and has the potential
to jeopardise lending to all clients, from rich to poor
and from the
contractually compliant to the errant. I shall revert to this aspect
when I consider whether condonation should be
granted or not.
[12]
In the
founding affidavit the bank goes on to point out that the effect of
the magistrate’s order for re-arrangement of the
debt in
question is that the consumer’s obligation under the NCA will
never be satisfied and it demonstrates, with reference
to certain
calculations, that the re-scheduled monthly instalment will not
even cover the monthly interest payable on the
debt, let alone reduce
the capital due. This is contrary to the purpose of the NCA, and in
particular sec 3 (i) thereof, which
the Constitutional Court
reiterated in
Kubanya
[2]
has,
inter
alia,
the
following aim –
“
[35]…..
It deserves re-emphasis that the purpose of the Act is not only to
protect consumers, but also to create a ‘
harmonised
system of debt restructuring, enforcement and judgment, which places
priority on the eventual
satisfaction of
all responsible consumer obligations under credit agreements’
.
THE
MAGISTRATE’S POWERS TO ORDER RESCHEDULING OF THE DEBT
[13]
The procedure for debt review is set out in sections 86 and 87 of the
NCA. In circumstances where a debtor qualifies for debt
review, a
debt counsellor is consulted and the latter prepares an application
to court for appropriate relief. In such application
the debt
counsellor may issue a proposal to the court recommending, firstly
[3]
that the relevant credit
agreement concluded by the consumer be declared to be reckless
credit. In addition, and in any event,
the counsellor may make the
following recommendations under section 86 (7) (e) (ii) -
‘
(ii)
that one or more of the consumer’s obligations be re-arranged
by –
(aa)
extending the period of the agreement and reducing the amount of each
payment due accordingly;
(bb)
postponing during a specified period the dates on which payments are
due under the agreement;
(cc)
extending the period of the agreement and postponing during a
specified period the dates on which payments
are due under the
agreement; or
(dd)
recalculating the consumer’s obligations because of
contraventions of Part A or B of Chapter 5, or Part A
of Chapter
6.
[4]
[14]
The debt counsellor is then required to refer the matter to the
magistrate’s court with her relevant recommendation(s).
In
terms of section 87 the magistrate must conduct a hearing on receipt
of the recommendation and after considering the matter
[5]
,
in terms of section 87(1), the court may –
“
(a)
reject the recommendation or application as the case may be; or
b)
make –
(i)
an order declaring any credit agreement to be reckless, and an order
contemplated in section 83
(2) or (3), if the Magistrate’s
Court concludes that the agreement is reckless;
(ii)
an order re-arranging the consumer’s obligations in any manner
contemplated in section 86 (7)
(c) (ii); or
(iii)
both orders contemplated in subparagraph (i) and (ii).
[15]
From the foregoing it will be seen that the structure of the NCA
contemplates that the debt counsellor is required to procure
the
relevant information, collate it, evaluate the situation and advise
the court as to the appropriate re-scheduling which
best suits
the debtor’s needs. If the court is then satisfied with that
recommendation, and decides to act under section
87 (1) (b) (ii) it
can only make an order which complies with one or more of the
recommendations contained in the debt counsellor’s
report and,
importantly, those recommendations can only be based on the
provisions of section 86 (7)(c)(ii): the court cannot make
an order
which does not incorporate a recommendation which does not comply
with the criteria set out in section 86 (7) (c) (ii).
[16]
It is trite that the magistrate’s court is a creature of
statute and exercises no inherent jurisdiction. It may only
exercise
the powers conferred upon it by statute and can accordingly not
adjudicate matters which fall outside of its jurisdiction.
Simply put
it may only issue orders which it is expressly authorised to do.
[6]
And, if that court exceeds its jurisdiction, at common law the
consequence is that such an order is null and void.
[7]
[17]
The facts in
Norris
are on all fours with the present
matter and it is accordingly useful to have regard to the
dictum
of Goosen J in that matter-
“
[42] It is
obvious from these figures that the rearranged payments will not
satisfy the amount outstanding to the applicant as at
the date of
restructuring. The clear effect of the re-arrangement order is that
the first respondent, as consumer, will not meet
all of his
obligations to the applicant in terms of the credit agreement. Not
only will the first respondent not be obliged to
make payment of the
full outstanding loan, the monthly payments do not even meet the
requirement to reimburse the applicant for
the monthly payment it is
obliged to make on behalf of the first respondent in respect of
credit insurance cover. The order plainly
does not meet the essential
purposes of the NCA as set out in s 3(g) and (i) (cf
BMW
Financial Services
(SA) Pty Ltd v
Mudaly
2010(5)
SA 618 (KZD);
FirstRand
Bank Ltd v Adams and Another
2012(4)
SA 14 (WCC))
[43]
Apart from this, the magistrate also ordered that the first
respondent’s contractual obligations to pay interest
on the
outstanding balance of the loan be reduced from the fixed 17, 5% to
0%.
[44]
Section 86(7)(c)(ii) confirms no such power upon the magistrates’
court. A debt re-arrangement order has
as its purpose the
re-scheduling or re-arrangement of the obligations of the consumer in
such a manner as to enable the consumer
to meet his/her/its
obligations to the credit provider. It serves to mitigate the effect
of over-indebtedness by making provision
for payments within the
existing means of the consumer and over an extended period. A
re-arrangement order does not, and cannot,
extinguish the underlying
contractual obligations. This much is plain from the wording of s
86(7). The order reducing the first
respondent’s contractual
obligation to pay interest on the outstanding balance of the loan is
therefore
ultra
vires
the NCA.
(
FirstRand Bank
v Adams
supra
para 28;
SA Taxi
Securitization (Pty) Ltd v Lennard
2012(2) SA 456 (ECG) para 10)”
[18]
As I have attempted to demonstrate, in this matter the magistrate did
not reduce the interest rate to zero but he permanently
fixed it at a
level which will render the debt incapable of ever being settled by
the Jones’. Adopting the reasoning in
Norris
, with which
I fully agree, it follows that the order of the magistrate of 8 June
2010 was
ultra vires
and accordingly of no force and effect.
THE
APPROPRIATE STEPS TO ADDRESS THE INVALID REARRANGMENT ORDER –
REVIEW OR DECLARATORY RELIEF?
[19]
The immediate problem that confronts the bank in seeking to have the
order reviewed and set aside is, as the Jones’ themselves
say
in their affidavit filed of record, the very lengthy delay of more
than 5 years in bringing the application. In terms of the
approach in
Wolgroeiers
[8]
, this court exercises its
inherent jurisdiction in a matter such as this and , in so doing, has
the power (in the regulation of
its own proceedings) to refuse to
come to the assistance of an aggrieved party if the latter has been
guilty of unreasonable delay
in initiating review proceedings. As
Navsa JA points out in
SANRAL
,
the question of prejudice is important and in deciding whether or not
to assist the litigant the court asks itself 2 questions-
·
Was there an unreasonable
delay?
·
If so, should the delay,
in all the circumstances of the case, be condoned?
[20]
Mr Rourke SC did not seek to suggest that there was anything
reasonable about the delay in this matter. Rather, both counsel
for
the bank and the
amicus
submitted that the review of the order
would occasion no prejudice to the debtors because they had had the
benefit of paying to
the bank over the period of the re-structured
order a lower instalment than they were contractually bound to pay. I
am not persuaded
that this is the correct approach. As a consequence
of the magistrate’s order the Jones’ have had all of
their debt
restructured and have, no doubt, regulated their domestic
finances in the
bona fide
belief that they were complying with
a valid order of court.
[21]
One does not know what amount the debtors would have paid to the bank
had a valid order been made, and what the effect thereof
would have
been on the amounts payable to their other creditors. Further, in
light of the complaint that the re-structured monthly
instalment does
not even cover the interest component thereof, it is safe to assume
that a significant amount of additional interest
has accrued to the
Jones’ home loan while the bank has all the while remained
relatively inactive in addressing the situation.
Simply put, there is
too much water that has passed under the bridge for a fair assessment
to be made of the consequences, and
in particular the prejudice, of
reviewing the order at this stage.
[22]
In considering whether the delay in the present matter should be
condoned, the court must also have regard to the fact that
the
parties have conducted themselves in accordance with the
implementation of the order: the Jones’ have paid less than
they are contractually bound to do and the bank has received such
payments under the court order, while the outstanding capital
on the
debt in question has continued to increase, given that not even the
monthly interest instalment which the Jones’ were
required to
pay under the credit agreement has been met.
[23]
In my view, the review of the order at this stage would create a
commercial nightmare for both parties and undoubtedly be prejudicial
to the debtors. The calculation of what would have been due to the
bank had the order not been made, or had the debt otherwise
have been
re-scheduled lawfully and the contract enforced in its original
terms, will not be a simple exercise given that, as a
matter of fact,
the Jones’ have been making part payment of what was
contractually due. Resorting to mixed metaphors, it
will be well nigh
impossible to unscramble the omlette in this case. For that reason
alone I consider that an order for review
would not be in the
interests of justice. It follows, in my view, that the application
for condonation of the delay in bringing
the reviewshould not be
granted.
[24]
The main focus of Mr Rourke SC’s argument was however on the
ultra vires
point. While the legal consequences of an order
made beyond the jurisdiction of the lower court are not in issue, and
while it is
established law (per
Motala
) that such an
order may be ignored because it is of no force and effect
ab
initio,
counsel for the bank urged the court to consider granting
declaratory relief in order that the correct interpretation of
sections
86 and 87 could be clearly conveyed to magistrate’s
courts hearing applications for debt review.
[25]
Ms Hartley’s affidavit reveals that orders of the sort made in
this case and in
Norris
are all too commonplace in the
lower courts and she goes on to demonstrate how the banks, while
struggling to keep track of the
plethora of orders made across the
country, are affected by the granting of such unlawful orders.
“
[35] I
refer later in this affidavit to the extent to which the applicant
has been negatively affected financially from unlawful
re-arrangement
orders of this kind. In truth, however, all credit providers
throughout the country are confronted with the same
problem. I am
unfortunately unable to provide any precise data concerning the
extent of the problem in the industry as such data
does not exist.
[36]
What is clear to me, however, as someone operating within the credit
industry, is that the problem is widespread
with many Magistrates
being under the mistaken impression that they have the jurisdiction
to reduce, vary, or even extinguish interest
payable when making
re-arrangement orders in terms of section 86 (7)(c) when, as a matter
of law, they do not. Similarly Magistrates
suffer the mistaken
impression that a re-arrangement order, which contemplates a monthly
instalment less than the interest which
accrues to the debt, falls
within the ambit of the Act.
[37]
This Re-arrangement Order (sic) is, to my knowledge as a consequence
of my involvement in the credit industry,
of a kind which is
routinely made in the Magistrate’s Courts across the country.
It is of a kind, therefore, which has wide
and far-reaching
implications for both the Applicant and other credit providers in the
Republic. I say so because such re-arrangement
orders are unlawful,
for the reasons provided in this affidavit. This
notwithstanding, many Magistrate’s Courts throughout
South
Africa make these kinds of orders regularly and they are implemented
by large swathes (sic) of those involved in the credit
industry -
apparently on the mistaken assumption that they are lawful.
Re-arrangement orders of this unlawful kind impact negatively
on the
entire credit industry.
[38]
In the first instance, the protection afforded to credit providers by
section 3 (g) of the Act is negated when
orders of this kind of
granted. The credit provider concerned does not then receive all that
is due to it. Stated differently,
the consumer does not satisfy all
her, his or its financial obligations to the credit provider as
contemplated in section 3(c)(i),
read together with section 3 (g) and
section 3 (i) of the Act.
[39]
If such orders are allowed to stand, this would represent a material
credit risk which a credit provider would
necessarily have to take
into account routinely when determining the risks it faces both
generally and specifically in respect
of any particular consumer. The
commercial effect of such risk being taken into account would be that
those consumers who are at
the margins of qualifying for credit and
who would otherwise do so would now, as a consequence of the risk
being taken into account,
no longer do so. This would undermine a
fundamental purpose of the Act which is to extend the granting of
credit to those who previously
did not qualify for credit as
contemplated in Section 3 (a) of the Act, as they lived on the
margins of affluence.
[40]
It is fundamentally important, in the circumstances that clarity be
obtained from this Honourable Court in the
form of the relief sought
by the Applicant.”
[26]
I would remark in passing that the problem of illegality does not
originate with the magistrate for it is the debt counselor
who makes
the recommendation to the magistrate as to how the debt should be
re-scheduled. It is therefore to those participants
in the debt
re-scheduling process that an declaratory order would primarily
apply.
[27]
This court’s power to issue a declaratory order is contained in
section 21(1)(c)
of the
Superior Courts Act, 10 of 2013
. The wording
is similar to the erstwhile power conferred upon the court under
section 19(1)(a)(iii)
of the now repealed Supreme Court Act, 59 of
1959 and the jurisprudence which developed under that section is
accordingly applicable.
Previously it was held that courts would not
pronounce upon abstract or academic points of law and that there had
to be an
existing or concrete dispute between persons (albeit as to
future or contingent rights) before the court would act.
[9]
That position changed with the decision of the Appellate Division in
Nell
[10]
,
where the court found that an existing dispute was not a prerequisite
to the exercise by the court of jurisdiction under the erstwhile
section. It was only necessary that there should be interested
parties upon whom the declaratory order would be binding: the
necessity
for an actual dispute is not required in section 21 (1) (c)
nor is it implied therefrom.
[28]
It has also been said that a court will not grant a declaratory order
in circumstances where the legal position has been clearly
defined by
statute.
[11]
However, I do not
understand the position to be that the issuing of a declaratory order
in such circumstances is proscribed. More
particularly, where there
has been persistent misinterpretation of the statute in question, it
seems to me essential that a court
should step in and issue a
declaratory order. It has also been held that where a court of
competent jurisdiction has already made
a similar order, the court
will not grant a further declaratory order in light of the
res
judicata
principle.
[12]
[29]
In
Cordiant
Trading
[13]
,
the Supreme Court of Appeal observed that the court considering the
grant of declaratory relief should adopt a two stage approach.
First,
it must satisfy itself that the applicant has an “
existing,
future or contingent right or obligation
”,
thereby considering whether the applicant has established the
requisite condition precedent for the court to entertain
the matter.
And, if this question is answered in the affirmative, the court must
then consider whether it is an appropriate case
to exercise its
jurisdiction in favour of granting such relief.
[30]
While the relief sought here encompasses the interpretation of a
statutory provision, I am of the view that the serial
misinterpretation
of sections 86 and 87 by both debt-counsellors and
magistrates alike throughout this court’s jurisdiction warrants
pronouncement
by the court of the correct position. Further, while
the court in
Norris
has already interpreted the
sections in question in similar vein that court does not function
within this court’s area of
jurisdiction to the extent that a
plea of
res judicata
could be raised. At best, on the basis of
stare decisis
its judgment is to be regarded as persuasive. In
my view, it is important that debt counselors and magistrates
funtioning within
the area of jurisdiction of this Provincial
Division should know that this court endorses the approach in
Norris
.
[31]
There can be little doubt that the bank has an interest in ensuring
legal certainty regarding the correct interpretation of
the NCA, for
it is the entity directly affected by the commercial consequences of
the incorrect interpretation thereof. But, debtors
too are interested
persons for the purposes of granting declaratory relief, given that
they are entitled to know that the section
has been wrongly
interpreted by magistrates: they too suffer prejudice when an
unlawful order is made, particularly where
this may have the effect
of perpetually enslaving them in debt to the bank.
[32]
In my considered view, therefore, this is a case
par excellence
where the court should exercise its discretion in favour of
granting declaratory relief. A positive and unequivocal restatement
regarding the interpretation of the statutory provisions in question
will be in the interests of, and of benefit to, all parties
who
are subject to the NCA, as well as those charged with the correct
interpretation thereof.
THE
TERMS OF THE ORDER SOUGHT
[33]
Mr Rourke SC handed up a draft order which he submitted would address
the bank’s concerns in this matter. I am in agreement
that an
order should be made in those terms save for the following. In terms
of para 3 of the draft, the court was requested to
make an order that
–
“
3.
The provisions of
section 103
(5) of the
National Credit Act and
the
common law
in
duplum
rules do
not apply whilst a consumer’s obligations have been rearranged
in terms of
section 87
(1) (b) (ii) of the
National Credit Act and
he
or she complies with the terms of such order…”
That
relief was never incorporated in the notice of motion herein nor was
it traversed in the founding affidavit. Rather, it seems
to have
arisen as something of an afterthought which evolved in the
preparation and presentation of the case before this court.
In the
circumstances I do not consider that the bank is entitled to ask for
such relief without more.
[34]
The relief sought in prayers 1, 2 and 4 of the draft are
substantially in accordance with the relief requested in the notice
of motion in which an order for costs was only sought in the event of
opposition. In my view, the relief contemplated in para 4
of the
draft order, which is to the following effect –
“
4.
An order granted by a Magistrate’s Court without jurisdiction
constitutes a nullity in law and is void
ab
origine
and may
accordingly be ignored as if it does not exist without the necessity
of a formal order setting it aside”,
amounts
to no more than a restatement of the common law position. In such
circumstances, it is neither necessary nor appropriate
to make an
order to that effect.
[35]
In my view, the order which follows is more than adequate to address
the bank’s concerns regarding the incorrect interpretation
of
the NCA in the lower courts. In addition, since there was no
opposition, no order for costs falls to be made.
ORDER
OF COURT
A.
A magistrate’s court
hearing a matter in terms of
section 87
(1) of the
National Credit
Act, 34
of
2005
, does not enjoy jurisdiction to vary (by reduction or otherwise)
a contractually agreed interest rate determined by a credit
agreement,
and any order containing such a provision is null and
void.
B.
A re-arrangement proposal
in terms of
section 86(7)(c)
of the
National Credit Act that
contemplates a monthly instalment which is less than the monthly
interest which accrues on the outstanding balance does not meet
the
purposes of the
National Credit Act. A
re-arrangement order
incorporating such a proposal is
ultra
vires
the
National
Credit Act and
the magistrate’s court has no jurisdiction to
grant such an order.
_____________________
GAMBLE J
I
AGREE.
________________________
HACK AJ
[1]
Nedbank Limited v Norris
and Others
2016
(3) SA 568 (ECP)
[2]
Kubanya v Standard Bank of
SA Limited
2014
(3) SA 56
(CC) at [35]
[3]
Under
section 86(7)(c)(i)
[4]
It is common cause that there are no such contraventions in this
matter.
[5]
“
(H)aving regard to
the proposal and information before it and the consumer’s
financial means, prospects and obligations..”
[6]
Ndamase v Functions 4 .All
2004(5) SA 602 (SCA) at
[5]
[7]
The Master of the High
Court (North Gauteng High Court , Pretoria) v Motala NO and Others
2012(3) SA 325
(SCA) at [12]
[8]
Wolgroeiers Afslaers
(Edms) Bpk v Munisipaliteit van Kaapstad
1978(1) SA 13 (A) at 41. See
also
Associated
Institutions Pension Fund v Van Zyl
2005(2)
SA 302 (SCA) at [41]and [42];
Gqwetha
v Transkei Development Corporation Limited
2006(2) SA 603 (SCA) at [5];
SANRAL
v City of Cape Town
ZASCA
122 (22 September 2016) at [79].
[9]
Ex parte Velkes
1963(3)
SA 584 (C)
[10]
Ex parte Nell
1963(3)
754 (A) at 760 A-C
[11]
Ex parte Noriskin
1962(1)
SA 856 (D)
[12]
Offit Enterprises (Pty)
Ltd and Another v Coega Development Corp (Pty) Ltd and Others
2009(5) SA 661
(SE) at 670 A-C
[13]
Cordiant Trading CC v
Daimler Chrysler Financial Services (Pty) Ltd
2005(6)
SA 205 (SCA) at [18]