Absa Technology Finance Solutions (Pty) Ltd v Michael’s Bid a House CC and Another (212/2012) [2013] ZASCA 10; 2013 (3) SA 426 (SCA) (15 March 2013)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 10
|

|

Absa Technology Finance Solutions (Pty) Ltd v Michael’s Bid a House CC and Another (212/2012) [2013] ZASCA 10; 2013 (3) SA 426 (SCA) (15 March 2013)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no
: 212/2012
In
the matter between:
ABSA
TECHNOLOGY FINANCE SOLUTIONS
(PTY)
LIMITED
......................................................................................................
Appellant
and
MICHAEL’S BID A HOUSE CC
..............................................................
First
Respondent
MICHAEL CHARLES ROSE
..............................................................
Second
Respondent
Neutral citation:
Absa Technology v Michael’s
Bid a House
(212/2012)
[2013] ZASCA 10
(26 February 2013)
Coram:
Lewis, Theron and Petse JJA and Plasket and Swain AJJA
Heard:
26 February 2013
Delivered: 15 March 2013
Summary:
Parol evidence is not admissible to
alter the terms of a written agreement in the absence of a plea of
rectification, fraud or simulation.
A lease that does not provide for
the passing of ownership at the end of its term is not one that falls
under the definition of
s 8(4)
of the
National Credit Act 34 of 2005
.
ORDER
On appeal from South Gauteng High Court, Johannesburg
(Beasley AJ sitting as court of first instance).
1 The appeal is upheld. The order of the high court is
set aside and is substituted with the following order:
‘
Judgment is granted against
the first and second defendants, jointly and severally, the one
paying the other to be absolved, for
payment in the amount of
R111 533.98 together with interest a tempore morae at the rate
of six per cent above the prime rate
prevailing from time to time
until date of payment.’
JUDGMENT
LEWIS JA ( THERON and PETSE JJA AND PLASKET and SWAIN
JJA concurring)
[1] The question to be decided in this matter is whether
a lease of movable property was governed by the provisions of the
National Credit Act 34 of 2005
. The high court held that the
agreement in question was a lease because the representative of the
lessee believed that ownership
of the machine hired would somehow
pass to the lessee on termination of the lease, and that the
provisions of the Act regulating
notice to the defaulting lessee were
thus operative. In effect, it held that the particular lease was not
a lease. This may sound
like a fragment of Alice in Wonderland. If
that is so, it is because the Act itself could have been written by
Lewis Carroll so
peculiar are some of its provisions.
[2] These are, in summary, the facts giving rise to the
litigation. The second respondent, Michael Rose, was an estate agent
who
conducted business through the first respondent, Michael’s
Bid a House CC (the CC). He wished to acquire a sophisticated colour

printing machine for the CC and also to print pamphlets and other
material for other estate agents in the area in which the business

operated – Randfontein, Gauteng. He discussed his requirements
with a Mr Vosloo of Westrand Office Equipment (Westrand),
who
suggested two ways of financing the transaction since the CC could
not afford to purchase the machine required. Rose chose
the second
option: he would pay a monthly amount of some R2 878 which
would, in the words of Vosloo, ‘finance this machine
with full
maintenance and service and toner supplied for the full 36 month
contract’. Vosloo added, in the written quotation,
that
Westrand could arrange ‘finance’ through Sapor Rentals
(Pty) Ltd (Sapor).
[3] On 3 July 2008 Rose, on behalf of the CC, signed a
‘master rental agreement’ with Sapor, undertaking to pay
the
sum of R 2 878 per month for a period of three years. Rose
signed as surety for the obligations of the CC. The contract
commenced
on the date of signature and the machine was delivered to
the CC and installed.
[4] The CC paid the first amount of R2 787 to Sapor
on 9 July 2008. The day before that, however, Sapor ceded its rights
under
the rental agreement to Absa Technology Finance Solutions (Pty)
Ltd (Absa Technology). On 28 July 2008 Rose received a copy of the

agreement that he had signed from Sapor. On the same day he wrote to
Sapor expressing his dissatisfaction with the printer and
with the
failure to supply toner. He claimed that he had been misled into
entering into the rental agreement and that he was cancelling
it. He
made the second and last payment on 8 August 2008.
[5] Absa Technology instituted action for payment of
arrear and future rentals against the CC, and against Rose as surety,
in November
2008 in the South Gauteng High Court. It claimed the sum
of R111 533 (astronomical in the circumstances), interest at a
rate
of six per cent per annum above the prime rate, a tempore morae,
and costs on the attorney and client scale. It also claimed return
of
the printing machine.
[6] Rose and the CC raised a number of defences in their
plea, some of which were traversed in evidence. They did not plead
rectification,
or that the rental agreement was simulated, or that
the contract had been induced by fraud. They did plead that Sapor was
in breach
of the contract because of Westrand’s failure to
deliver toner for the machine or to maintain it, but did not show
that Sapor
was Westrand’s agent in this respect. Unfortunately
for the CC and Rose, Westrand was liquidated. Their remedy against
it,
if any, was thus of no use.
[7] The South Gauteng High Court (Beasley AJ) correctly
found, in my view, that any prior discussions between Rose and
Westrand
were inadmissible in the face of the written agreement. The
parol evidence rule was in fact reinforced by a clause in the rental

agreement recording that no representations, undertakings or
warranties not contained in the agreement were binding on the hirer,

Sapor. The CC acknowledged that it was referred to Sapor by Westrand,
the supplier, which had bought the machine at its request.
[8] But the high court held that the agreement in issue
was not a true lease, and, implicitly, that despite its written
provisions
to the contrary, the real agreement between the parties
was in effect a sale on credit and thus a credit agreement for the
purposes
of the Act. Thus Absa Technology, as the lessor, was
required to give notice and to proceed against the first respondent
as lessee,
and the second respondent as surety, under
ss 129
and
130
of the Act before attempting to enforce the agreement. I shall deal
in due course with other arguments that would bring the contract

within the meaning of a credit agreement.
[9] Before turning to the issue for decision, it should
be noted that the high court made a legal finding (that Absa
Technology
had to give notice and proceed under the Act) but did not
give judgment on the merits. The order read (in part):
‘
1 Judgment is postponed
sine
die
.
2 The plaintiff may not set the matter down until:
2.1 it has complied with the provisions of
Section 129(1)(
a
)
of the
National Credit Act
. . . . In particular it must draw the
default to the notice of the Defendants by delivering a notice which
complies with the provisions
of
Section 129(1)(
a
) . . . .
2.2 the provisions of
Section 130
have been complied with.
3 The plaintiff is to pay the costs of the action.’
The high court gave leave to appeal against its decision
to this court.
[10] As a rule, this court will not entertain an appeal
against part of an order even if it is dispositive of a point of law.
The
authorities in this regard are discussed in
Health
Professions Council of South Africa v Emergency Medical Supplies and
Trading CC t/a EMS
.
1
The lis between the parties would not be disposed of
until Absa Technology proceeds in terms of
ss 129
and
130
of the Act,
and there might be yet a further appeal on other aspects. But counsel
for Absa Technology argued that in effect there
is nothing further
that the high court can adjudicate upon: if the appeal is heard and
is successful, that is the end of the matter.
If the appeal is
dismissed then once Absa Technology has complied with
ss 129
and
130
,
judgment will be entered against the respondents. Absa Technology
argued also that the principle is subject to the exception that
where
the balance of convenience requires it the order should be appealed
in order to avoid prejudice to the appellant:
National
Director of Public Prosecutions v King
.
2
[11] In this matter the finding of the high court that
lease agreements of the kind in issue are subject to the Act does
affect
many financial institutions, including Absa Technology. It is
not a finding that is case specific but affects a class of contracts

in respect of which the applicability of the Act requires
clarification. Moreover, if this court declined to hear the appeal
before
Absa Technology complied with
ss 129
and
130
of the Act, and
then on appeal after judgment had been given, decided that such
compliance was not necessary, time and costs would
be wasted. In the
circumstances I consider that the appeal should be entertained.
[12] Having rejected the defence on the merits –
that Sapor was in breach of the agreement, entitling the CC to cancel
it
– the high court had only to determine whether the rental
agreement constituted a lease, or other credit agreement as defined

in the Act, such that Absa Technology, as cessionary of Sapor’s
rights, was obliged to give notice of default to the CC and
Rose in
terms of
s 129
of the Act, and to satisfy the requirements of
s 130.
There were three bases upon which the rental agreement could
notionally have amounted to a credit agreement under
s 8(4)
of the
Act.
Section 8(4)
of the Act
[13]
Section 8
of the Act determines which contracts
constitute credit agreements. Subsection 8(4) provides:
‘
An agreement,
irrespective
of its form
but not including an
agreement contemplated in subsection (2), constitutes a credit
transaction if it is-
(a)
a pawn transaction or discount transaction;
(b)
an incidental credit agreement, subject to
section 5(2)
;
(c)
an instalment agreement;
(d)
a mortgage agreement or secured loan;
(e) a lease;
or
(f)
any other agreement, other than a credit facility or
credit guarantee, in terms of which payment of an amount owed by one
person
to another is deferred, and any charge, fee or interest is
payable to the credit provider in respect of-
(i) the agreement; or
(ii) the amount that has been deferred.’ (My emphasis.)
[14] The principal argument for the respondents in so
far as the agreement in dispute in this matter was concerned was that
the
‘rental agreement’ between the parties was a lease.
Indeed rental agreements generally are leases. But a lease as defined

in the Act is the very antithesis of a lease.
3
The definition (in
s 1)
reads:
‘”
lease” means an agreement in
terms of which-
temporary possession of any movable property is delivered to or at
the direction
of the consumer, or the right to use any such property is granted to
or at the direction of the consumer;
(b)
payment for the possession or use of that property is-
(i) made on an agreed or determined periodic basis during the life of
the agreement; or
(ii) deferred in whole or in part for any period during the life of
the agreement;
(c)
interest, fees or other charges are payable to the credit
provider in respect of the
agreement, or the amount that has been deferred; and
(d) at the end of the term of the agreement, ownership of that
property either-
passes to the consumer absolutely; or
(ii) passes to the consumer upon satisfaction of specific
conditions set out in the agreement’ (
my emphasis);
A true lease, one that obliges the lessee to return the
thing hired at the end of the contract, is thus not covered by the
definition
of a credit agreement and the relationship between the
lessor and the lessee is not, if one has regard only to this
definition,
governed by the provisions of the Act.
Was the rental agreement governed by
s 8(4)(
e)
of the Act: was it a ‘lease’?
[15] The basis on which the high court found that the
agreement between the parties was a credit agreement was that it was
a lease
as defined in the Act. In order to reach that conclusion, the
high court relied on the evidence of Rose and Absa Technology’s

witnesses as to whether ownership of the machine would pass to the CC
on termination of the agreement at the end of its term. The
high
court found that it was ‘relevant’ to the issue whether
or not the rental agreement was a lease. Beasley AJ thus
admitted the
evidence, despite Absa Technology objecting at the outset to it being
led. He gave leave to appeal against his finding
that the agreement
fell within the ambit of the Act to this court because of the many
judgments in the high courts dealing with
the question, and its
importance in the commercial world.
The terms of the agreement
[16] The first question that arises from this implicit
admission of parol evidence is whether it was permissible given the
terms
of the agreement. These included the following:
‘
Hirer [first Sapor and then by virtue of
the cession Absa Technology] shall at all times be and remain the
owner of the goods and
neither User [the CC] nor any other person on
his behalf shall at any stage before or after the expiry of this
agreement or after
termination thereof acquire ownership of the
goods.’
‘
Notwithstanding the provisions of this
agreement should User in breach of its obligations fail to return the
goods on termination
of this agreement then in addition to any other
claims that Hirer may have against User pursuant thereto, User shall
be liable
to continue to pay rentals to Hirer as if the agreement had
not been so terminated.’
‘
User shall, on termination of this
agreement, return the goods together with all applicable documents to
Hirer at User’s cost
and expense.’
[17] These terms are absolutely clear. Absa Technology
remained the owner of the goods. The requirement embodied in the
definition
of a lease under the Act that ownership of the goods must
pass
in terms of the agreement
to
the lessee at the end of the lease was not met. One must then ask on
what basis the high court admitted extrinsic evidence that

contradicted the terms of the agreement.
The admissibility of evidence as to the consequences
of the agreement
[18] The learned judge had regard to decisions of other
courts that seem to suggest that if evidence was available as to the
true
intention of the parties, which may not have been reflected in
the written agreement between them, then it was permissible to vary

the terms of the agreement to bring it within the ambit of the Act.
In particular he examined
Absa Technology
Finance Solutions Ltd v Pabi’s Guest House CC
4
and
Absa Technology Finance
Solutions Ltd v Viljoen t/a Wonderhoek Enterprises
5
in which the courts appeared to consider that if
extrinsic evidence as to what the lessees had intended had been
available to them
they would have taken it into account in
determining the nature of the transaction in issue.
[19] In
Pabi’s
,
an application for default judgment, Kruger J said that in the
absence of evidence as to the content of the contract, he could
not
go beyond the terms of the contract. But, he said,
s 8(4)(
f
)
of the Act ‘applies in accordance with the content of the
contract and not by virtue of its name’. The court, the
judge
said, ‘must have regard to the substance of the contract, not
merely its form (or outward appearance)’.
6
He referred in this regard to
Tucker
v Ginsberg
,
7
cited also in
Bridgeway Ltd v
Markam
,
8
the latter also determining whether a contract fell
within the ambit of
s 8(4)
of the Act. In
Bridgeway
the court apparently took the view that a court, in
determining the nature of a contract, ‘must scrutinize the
whole course
of the parties’ dealings’.
[20] In my view, the reliance in
Pabi’s
and
Bridgeway
on
Tucker
is
misplaced. In that case Trollip J said:
9
‘
As each party has given the transactions a
different label, I think it is appropriate to add here that the label
used here is not
decisive. Despite the label, the court must look at
the nature of the transaction and not its object because . . . the
object is
the same in both cases . . . . and in ascertaining its
nature the Court must have regard mainly to its substance and not
merely
its form.’
This proposition is well entrenched in the law. As
Trollip J himself said, it is ‘virtually trite law’. But
it deals
with the characterization of a contract, not with evidence
that will have the effect of altering the terms of the written
contract,
in breach of the parol evidence rule. It does not give a
licence to admit evidence as to one party’s alleged intention
where
the written contract clearly does not reflect that. Of course
if the parties call their agreement a sale and in fact the terms show

that it is a barter, or they call it a lease (as understood at common
law) when in fact it is a sale on instalments, then a court
must look
to the terms to determine the correct label or characterization. But
a court may not admit evidence as to what the parties
intended it to
mean if that has the effect of changing the terms on which they
clearly agreed.
[21] The correct approach to the admissibility of parol
evidence is that stated in this court by Harms DP in
KPMG
Chartered Accountants SA v Securefin Ltd:
10
‘
First,
the integration (or parol evidence) rule remains part of our law.
However, it is frequently ignored by practitioners and
seldom
enforced by trial courts. If a document was intended to provide a
complete memorial of a jural act, extrinsic evidence may
not
contradict, add to or modify its meaning (
Johnson
v Leal
1980
(3) SA 927 (A)
at
943B). Second, interpretation is a matter of law and not of fact and,
accordingly, interpretation is a matter for the court
and not for
witnesses (or, as said in common-law jurisprudence, it is not a jury
question: Hodge M Malek (ed)
Phipson
on Evidence
(16 ed 2005) paras 33 - 64).  Third, the rules about
admissibility of evidence in this regard do not depend on the nature

of the document, whether statute, contract or patent (
Johnson
& Johnson (Pty) Ltd v Kimberly-Clark Corporation and
Kimberly-Clark of South Africa (Pty) Ltd
1985 BP 126 (A) ([1985] ZASCA 132 (at www.saflii.org.za)). Fourth, to
the extent that evidence may be admissible to contextualise
the
document (since “context is everything”) to establish its
factual matrix or purpose or for purposes of identification,
“one
must use it as conservatively as possible” (
Delmas
Milling Co Ltd v Du Plessis
1955
(3) SA 447
(A)
at
455B - C). The time has arrived for us to accept that there is no
merit in trying to distinguish between “background
circumstances”
and “surrounding circumstances”.
The distinction is artificial and, in addition, both terms are vague
and confusing.
Consequently, everything tends to be admitted. The
terms “context” or “factual matrix” ought to
suffice.
(See
Van
der Westhuizen v Arnold
2002
(6) SA 453 (SCA)
([2002]
4 All SA 331)
paras 22 and 23, and
Masstores
(Pty) Ltd v Murray & Roberts Construction (Pty) Ltd and
Another
[2008] ZASCA 94
;
2008
(6) SA 654
(SCA)
para
7.)’
[22] There is no reason to consider that any of the
provisions of the Act change the common law as to the exclusion of
parol evidence.
Although each of the classes of contract referred to
in
s 8(4)
is prefaced with the words ‘irrespective of its form’
this means no more, in my view, than that the label given to the
type
of contract, or its format, does not determine its nature and
substance. The terms of an agreement determine its nature, and
those
cannot be disregarded.
[23] Accordingly, the high court should not have had
regard to the evidence that was led as to the parties’
understanding
of the rental agreement, especially as to the passing
of ownership of the machine, by the witnesses for Absa Technology or
by Rose.
It should all have been ruled inadmissible. There is thus no
need for me to consider that evidence or whether it gave rise to the

conclusion that on the probabilities the parties intended their
agreement to be a lease within the definition of the Act. The written

rental agreement signed by Rose on behalf of the CC and on behalf of
Sapor is a lease as it is understood at common law, but not
a lease
for the purposes of
s 8(4)
of the Act. The appeal against the finding
of the high court in this regard must accordingly succeed.
Was the rental agreement governed by
s 8(4)(
f
)?
[24] In the high court the CC and Rose argued, secondly,
that the agreement constituted a credit agreement under this
subsection
which provides that an agreement, ‘irrespective of
its form’, is a credit agreement if ‘payment of an amount
owed by one person to another is deferred, and any charge, fee or
interest is payable to the credit provider in respect of’
the
agreement or the amount that has been deferred. The argument was that
payment of the rental in this case was ‘deferred’.
The
high court rejected the argument, accepting the correctness of the
approach followed in
Viljoen.
11
Tuchten AJ held in that case that in this type of rental
agreement there was no question of deferral of the obligation to pay
monthly
rental because payment was not postponed. The court said:
12
‘
The Agreement is simply not one in terms of
which any payment of an amount owed is deferred. The defendant was
obliged to pay the
monthly rentals in advance. There can in my view
be no question of the deferral of an obligation to pay in this
context, because
there could be no deferral unless there was a prior
obligation to pay, which, for monetary consideration, was postponed
to a later
date.
Furthermore, to qualify under
s8(4)(
f
) there must, in terms of
the relevant agreement, be a fee, charge or interest payable to the
plaintiff in respect of the agreement
or the amount that has been
deferred. There is no such fee, charge or interest payable under the
Agreement.’
And
‘
The defendant is neither obliged nor
entitled under the terms of the Agreement to defer any such payment
(or, to put it another
way, he does not owe any amount eg for month 2
until the last day of month 1) and incurs no obligation to pay any
fee, charge or
interest if he chooses to wait until the day before
the month in question before he pays the instalment for that month.’
[25] The court did not accept the view of Professor J M
Otto
13
that the obligations to pay for months two to 60 were
deferred until those months arrived. Otto’s view was premised
on the
assumption that a flat rental would in reality include
interest.
[26] As I have already held, however, extrinsic evidence
is not admissible to prove that rental is calculated in such a way as
to
include interest in the face of the terms of the agreement which
state otherwise. To do that, as Tuchten AJ said, would require
a plea
and proof of simulation. In that case no evidence was led to that
effect and in this case the CC and Rose did not plead
or demonstrate
any simulation.
[27] As Tuchten AJ said in
Viljoen
:
14
‘
The legislature was at pains to exclude
both the common-law lease of goods simpliciter and the lease of
immovable property, irrespective
of its form – as to which see
s 8(2)(
b
)
– from the ambit of the NCA. The type of lease under
discussion, where the lessor acquires the goods for the purpose of

leasing them to the lessee, has been part of our commercial life for
generations. If the legislature had wished to bring such a
lease
within the NCA as a credit transaction, it could easily have done so
by the use of plain and unambiguous language to that
effect. After
pointedly excluding the common-law lease simpliciter from the reach
of the statute in
s 8(4)(
e
),
it is most unlikely that the legislature intended to bring a subset
of the common-law lease within the statute under
s 8(4)(
f
).’
[28] The judge pointed out also that the common-law
lease, which is in issue in this case, does not afford credit –
the opportunity
to defer payment of what is owed – to the
lessee: a lessor who buys goods for the purpose of letting them to a
specific lessee
does not extend credit.
15
It charges rent, just as the lessor of immovable
property charges rent for the use by the lessee of premises. It is
important to
note also that common-law leases of movable property are
indeed regulated, but by the
Consumer Protection Act 68 of 2008
.
16
[29] Finally on this argument, and as pointed out by
Absa Technology, the rental agreement actually made provision for
interest
payable on late payment of rentals. It stated that if the
user failed to effect payment of rental on due date the overdue
amount
would bear interest at the rate of six per cent per annum
above the prime rate. The argument that the rental agreement was a
credit
agreement in terms of
s 8(4)(
f
)
must thus also fail.
Was the rental agreement an incidental credit
agreement as defined in the Act?
[30] The third argument raised in the high court by the
CC and Rose was that the agreement was an incidental credit
agreement, defined
in the Act as one, irrespective of its form, in
terms of which an account is rendered for goods or services rendered,
or to be
provided, over a period where either a fee, charge or
interest becomes payable when the account has not been paid, or two
prices
have been quoted for settlement of the account, the lower
price being payable if the account is paid by a determined date and
the
higher price being payable if not paid by that date.
[31] The latter provision is clearly not applicable. And
the rental agreement does not meet the test in the former case
because
no account was rendered, or required, for services rendered.
Rental had to be paid in terms of the agreement and no account was

necessary. And just as it would be strange for the Act to exclude
common-law leases from its ambit but bring them in under
s 8(4)(
f
)
so too it would be strange if the Act were interpreted to mean that a
common-law lease was an incidental credit agreement. The
third
argument must thus also fail.
[32] The rental agreement is thus not governed by the
Act and Absa Technology is not required to give notice, or comply
with, the
provisions of
ss 129
and
130
of the Act before instituting
action.
Costs
[33] The respondents were not represented in the appeal.
Absa Technology offered to waive its costs on appeal in view of the
fact
that this case was a ‘test case for the industry’,
of importance to entities in similar positions. It also offered to

forego the costs of the application in the high court, also on the
basis that the decision was important for financial institutions
that
fund this type of transaction.
Order
[34] In the result the following order is made:
1 The appeal is upheld. The order of the high court is
set aside and is substituted with the following order:
‘
Judgment is granted against
the first and second defendants, jointly and severally, the one
paying the other to be absolved, for
payment in the amount of
R111 533.98 together with interest a tempore morae at the rate
of six per cent above the prime rate
prevailing from time to time
until date of payment.’
_____________
C H Lewis
Judge of Appeal
APPEARANCES:
For
appellant: A R Gautschi SC (with him J J du Randt),
Instructed
by: Savage Hurter & Louw Inc,
Randburg,
Bezuidenhouts
& Milton Earle Inc,
Bloemfontein.
1
Health
Professions Council of South Africa v Emergency Medical Supplies and
Trading CC
2010 (6) SA 469
(SCA).
2
National
Director of Public Prosecutions v King
2010 (2) SACR 146
(SCA).
3
See
J M Otto and R-L Otto
The
National Credit Act Explained
2 ed
(2010) at 23-24.
4
Absa
Technology Finance Solutions Ltd v Pabi’s Guest House CC
2011
(6) SA 606
(FB).
5
Absa
Technology Finance Solutions Ltd v Viljoen t/a Wonderhoek
Enterprises
2012 (3) SA 149
(GNP) para 26.
6
Para
22.
7
Tucker
v Ginsberg
1962 (2) SA 58
(W) at 62F-H.
8
Bridgeway
Ltd v Markam
[2008] ZAGPHC 251
;
2008 (6) SA 123
(W) para 15.
9
At
62F-G.
10
KPMG
Chartered Accountants SA v Securefin Ltd
2009 (4) SA 399
(SCA)
para 39.
11
Above,
para 20.
12
Paras
20, 21 and 23.
13
In
J W Scholz et al
Guide to the
National Credit Act
(looseleaf
)
8-10.
14
Para
32.
15
Para
33.
16
See
s 5
which determines the application of that Act, and
s 5(2)(
d
)
which excludes from its ambit any agreement governed by the
National
Credit Act. Professor
Otto, in a note on the
Pabi’s
and
Viljoen
decisions, is critical of this reasoning:
75 (2012)
THRHR
492
at 499-500. The note does not, however, examine the
problem of disregarding the terms of an agreement without pleading
and proving
simulation or fraud.