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[2010] ZAWCHC 173
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Wesbank a division of Firstrand Bank Ltd v Martin (13564/2010) [2010] ZAWCHC 173; 2012 (3) SA 600 (WCC) (13 August 2010)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
In the
matter between:
Case No. 13564/2010
WESBANK
a division of FIRSTRAND
BANK
LIMITED Plaintiff
and
NATHALIE AGATHA MARTIN Defendant
JUDGMENT DELIVERED ON 13 AUGUST 2010
BINNS-WARD, J:
In this matter the plaintiff seeks summary judgment against the
defendant. The debt in question arises out of a credit agreement
which is subject to the provisions of the
National Credit Act 34 of
2005
. The defendant had applied for debt review in terms of
s 86
of the Act. Prior to the institution of the action the plaintiff
gave the defendant notice in terms of
s 86(10)
of the Act to
terminate the review. Some weeks after the institution of the
action the defendant’s debt counsellor applied
to the
magistrates’ court in terms of
s 87
of the Act for an
order in terms of
s 86(7)(c)
of the Act. That application has
been set down for hearing in October 2010, some two months hence.
The defendant contends that summary judgment should not be granted
against her by reason of the application pending in the magistrates’
court. She has called in aid the judgment of Kathree-Setiloane AJ
in
Standard Bank of South Africa Limited v Kruger; Standard Bank
of South Africa Limited v
Pretorius
[2010] ZAGPJHC 28
(23 April 2010),
1
in which it was held that it was not competent for a credit provider
to purport to terminate a debt review in terms of
s 86(10)
of
the Act at a time when an application in terms of
s 87
of the
Act was pending before the magistrates’ court. The facts in
the
Standard Bank
matter are, however, distinguishable. In
that matter the issue was whether it was competent for the credit
provider to purport
to give notice of termination of the debt review
at a time when an application to the magistrates’ court was
pending.
In the current matter, as mentioned, there was no
application pending in the magistrates’ court when notice was
given in
terms of
s 86(10)
and, moreover, no such application
had been made by the time enforcement proceedings were instituted in
this court.
The plaintiff, on the other hand, relies on the judgment of Kemp AJ
in
SA Taxi Securitisation (Pty) Ltd v Nako and others
ZAECBHC
4 (8 June 2010)
2
,
which appears to hold that after notice in terms of
s 86(10)
of
the Act has been given resort to enforcement proceedings may had by
the credit provider even if there is a pending debt review
application to the magistrates’ court. The plaintiff’s
contention is that the claim based on the credit agreement
in issue
in the current case is no longer subject of the debt review before
the magistrate; the review having been effectively
terminated
pursuant to the notice given by it in terms of
s 86(10)
of the
Act.
The resolution of these contesting arguments lies in a proper
construction of the applicable provisions of the Act with due regard
to their bearing on the peculiar facts of the case. The import of
the relevant provisions of the Act has been the subject of
numerous
judgments; and the resulting jurisprudence is by no means
harmonious. That the statute has proven difficult to work
with
makes it all the more important to approach its construction with
its apparent scope and objects foremost in mind.
Access to consumer credit is an essential characteristic of any
modern economy. In so-called developing countries it also fulfils
a
particularly important societal role by providing a means to persons
who would otherwise not be able to afford them of access
to goods
and services that in the modern world are considered necessary to
achieve acceptable living standards, at least in the
material sense.
The provision of access to consumer credit on a scale significant
enough to make a meaningful economic impact
is beyond the resources
of the vast majority of suppliers of goods and services. Consumer
credit is therefore by and large provided
by financial institutions.
The extension of consumer credit is an important aspect of the
business of the commercial banks.
As in the case of any business,
the enterprise has to be reasonably efficient and profitable if it
is to be viable. The less
efficient the business is, the higher the
costs of its services are likely to have to be to realise the margin
of profit necessary
to keep it sustainable. So much for the
business side of consumer credit. On the consumer side, access to
credit if not responsibly
managed can lead to considerable social
ills. Persons who become over-indebted are in danger of losing what
little capital they
may have had before incurring credit-related
debt. That section of society that has least in the way of material
wealth is particularly
susceptible to temptation to take on higher
credit-related debt than is affordable and is most in need of
protection against
the consequences of the intemperate extension of
credit. It is also that part of society that is most in need of
responsible
use of credit if social upliftment is to be achieved and
that will be most seriously disadvantaged by avoidable increases in
the cost of accessing credit.
Badly drafted, as some of the provisions of the
National Credit Act
unfortunately
are, it is nevertheless evident from the provisions of
the Act read as a whole that the basic socio-economic considerations
sketched
in the preceding paragraph essentially informed the
statute’s enactment. This much may discerned in particular
from the
long title of Act
3
and the objects of the legislation, which are stated in
s 3.
4
anc" HREF="#sdfootnote4sym">
4
The most salient object of the Act is to regulate consumer credit
so as to promote a fair and non-discriminatory marketplace
for
access to consumer credit. In this regard a balance is sought to be
struck between the respective rights and responsibilities
of credit
providers and consumers.
Section 2(1)
of the Act expressly states
that the statute ‘must be interpreted in a manner that gives
effect to the purposes set out
in
section
3
’. This is a somewhat curious provision because it does
no more than restate a basic canon of statutory interpretation –
that is that a statute must be interpreted in such a manner as,
consistently with the language used in the instrument, to give
effect to the evident intention of the legislature in enacting the
legislation. It seems to me that the intention behind sub-section
2(1) must have been to underline and emphasise the application of
this canon with the object of endeavouring to ensure that the
provisions of the statute are applied evenly between credit
providers and credit receivers, congruously with the achievement
of
the socio-economic objectives of the Act within the context of
business realities.
The plight of the over-indebted is provided for in the Act by an
institutionalised system of debt review which includes a mechanism
for the rescheduling of debt repayment, where that is viable, and
for the subordination or writing off of debt incurred to credit
providers who have extended credit recklessly. The system
acknowledges the importance to credit providers of efficient and
effective debt recovery and enforcement. One of the features which
reflects this acknowledgment is the provisions of
s 86(10)
of
the Act which empowers a credit grantor to give notice to terminate
a debt review. The effect of notice given by a credit
grantor in
terms of
s 86(10)
is in fact not
ipso facto
to terminate
the debt review, but rather to afford a period of notice
5
upon the completion of which the credit grantor is able,
notwithstanding the debt review, to institute proceedings in a court
for the recovery of the debt. It seems to me therefore that the
termination of the debt review contemplated by the notice to
terminate provided for in terms of
s 86(10)
occurs when the
creditor institutes proceedings after having given such notice. It
would also appear that the termination operates
only in respect of
the debt in relation to which the notice to terminate was given and
thus if the debt review that is underway
relates also to other
debts, it continues in respect of such other debts unless their
review is also terminated in like manner.
This is not expressly
provided in the statute, but it seems to follow by necessary
implication from the express provisions.
6
As I had occasion to set out, with detailed reference to the
National Credit Act regulations
, in an earlier judgment in point
(see
Changing Tides 17 (Pty) Ltd NO v Erasmus and Another,
Changing Tides 17 (Pty) Ltd NO v Cleophas and Another, Changing
Tides 17
(Pty) Ltd NO v Frederick and Anothers
[2009]
ZAWCHC 175
(12 November 2009)
7
at para.s [26]-[32]), an efficiently conducted debt review
process in terms of
s 86
of the Act should result, if there is
to be a resultant debt rescheduling, in the lodging of an
application to the magistrates’
court, or the Tribunal,
8
as the case might be, for an appropriate order comfortably within
sixty business days of the commencement of the debt review
process.
The timetable in the regulations was no doubt determined with due
regard to the statutorily determined sixty business
day period that
must have passed before a credit grantor creditor may give the
notice contemplated in terms of
s 86(10)
of the Act.
In
Changing Tides
I expressed the view that it was not
competent for a creditor to purport to give notice of termination in
terms of
s 86(10)
of the Act at a time when an application to
the magistrates’ court for a relevant order in terms of
s 86(7)(c)
was pending. The views expressed by me in that
regard were regarded by Kemp AJ in his judgment in
SA Taxi
Securitisation (Pty) Ltd v Nako and others
(supra) as
obiter
dicta
, correctly so I think. The learned acting judge also
appears to have understood that the views I expressed were informed
on
a moral rather than a legal basis. In that respect he was
incorrect. They were predicated on my understanding of the content
of the statute’s provisions. I am given to understand by
counsel that that question –whether notice can be given
in
terms of
s 86(10)
when an application in terms of
s 87
is
pending in the magistrates’ court - has been referred for
determination by a Full Bench and that a hearing pursuant
to such
referral is still to take place. It is therefore probably desirable
that I do not expound any further views on the question
save as
might be strictly necessary for the determination of the current
case. As will be apparent from the facts described
earlier, a quite
different question arises in this matter: it is whether any proper
basis exists to refuse summary judgment in
favour of the plaintiff
because the defendant’s debt counsellor instituted an
application for an order in terms of
s 86(7)(c)
some time after
proceedings for the recovery of the debt had been instituted, as
permitted in terms of
s 130(1)
of the Act.
It seems to me that if the institution of enforcement proceedings is
authorised in terms of the Act, the party instituting them
must be
entitled to prosecute them to conclusion in the ordinary course,
unless prevented from doing so by some or other provision
of the
Act. The only provisions of which I am aware or to which attention
has been drawn that might impact on the conduct of
proceedings
properly instituted for the recovery of the debt are
s 86(11)
and
s 130(4)
of the Act.
Section 86(11)
applies only if a magistrates’ court which
is hearing an application for an order in terms of
s 86(7)(c)
in regard to the debt review orders the review to resume. A
purposive reading of
s 86(11)
would include within the ambit of
a court ‘hearing the matter’, a court before which
proceedings for an order in
terms of
s 86(7)
were pending.
9
That a purposive reading is justified arises not only from the
shortcomings in the drafting of the Act already remarked upon,
which
make it necessary to imply provisions to render the expressly
provided framework coherent, but also from the effect of
the
intimation given from the bar that there is a significant backlog
occasioned by logistical constraints in the hearing of
applications
for orders in terms of
s 86(7)
in the magistrates’
courts. I was informed that in many such courts - Wynberg and
Stellenbosch were given as examples
- a hearing cannot be obtained
without a wait of several months; this despite the provisions of
magistrates’ court
rule 55
– hence the fact that the
application by the defendant’s debt counsellor has been set
down for hearing only in October.
It would be inimical to the
apparent objects of the Act to penalise a debtor who had been
efficiently pursuing the debt review
procedures provided in terms of
s 86
simply because s/he was delayed from obtaining a hearing
by a backlog of cases on the magistrate’s roll. Any decision
in terms of
s 86(11)
by the magistrate at such hearing that the
debt review should resume in respect of the credit agreement in
issue would negate
or override the effects of a notice of
termination given by the credit provider in terms of
s 86(10).
The notion that the legislature could have intended that the
incidence of that power would be dependent on the arbitrary
consideration
of the state of the magistrates’ court roll is,
in my view, untenable.
The juxtapositioning of the provisions of
s 86(10)
and
s 86(11)
would suggest that an order as contemplated in terms of
s 86(11)
might be sought and obtained within the period that follows between
the giving of notice by a credit provider in terms of
s 86(10)
and the effective termination of the debt review of the credit
agreement in question upon the institution of recovery proceedings
no sooner than ten business days thereafter, as permitted in terms
of
s 129(1)(a)
of the Act.
10
It would be most unusual for a magistrates’ court by its
order to be able to stay proceedings already competently instituted
in another court, most especially in a court of superior
jurisdiction. In the absence of clear language in the statute
indicating
an intention to vest the magistrates’ courts with
such extraordinary power,
s 86(11)
does not fall to be
interpreted as having the effect of allowing the staying of recovery
proceedings competently instituted after
the expiry of the
s 86(10)
termination notice period. On the other hand, the apparent object
of
s 86(11)
would be thwarted if recovery proceedings could
follow even if application had been made by or on behalf of the
debtor for an
order in terms of
s 86(7)(c)
and
s 86(11)
during the interval following on the giving of notice in terms of
s 86(10)
and the expiry of the consequent minimum period of ten
business days inherent in the provisions of
s 129(1)(a).
As I
remarked in
Changing Tides
at para. [32], ‘The evident
purpose of the notice by a credit provider in terms of
s 86(10)
of
the NCA is to enable the consumer and/or the debt counsellor to
urgently bring an application to a magistrate in terms of
s
86(7)(c)
, or
86
(8)(b) if that has not by then already been done,
alternatively, if such an application is already pending, to
approach the magistrate
for an order in terms of
s 86(11)
of the NCA
that the debt review should be resumed. I can conceive of no other
reason for the requirement in terms of
s 130(1)(a)
of the NCA that
at least 10 business days must have elapsed after notice to the
consumer as contemplated in terms of
s 86(10)
before a credit
provider may institute proceedings for the enforcement of a credit
agreement.’
In the current matter the plaintiff gave notice in terms of
s 86(10)
of the Act on 17 May 2010, more than 60 business days after the
defendant had applied for debt review in terms of
s 86(1).
On
24 June 2010, more than a month later, the plaintiff served summons
in the action. On 9 July 2010, the defendant’s
debt
counsellor instituted an application in the Stellenbosch
magistrates’ court for an order in terms of
s 86(7)(c)
of
the Act.
In her affidavit opposing the plaintiff’s application for
summary judgment, the defendant avers that she applied for debt
review on 9 February 2010. She annexed a copy of a Form 17.1
notice of that date which she avers was sent by her debt counsellor
to all her creditors. The defendant averred that a Form 17.2 notice
was sent to the plaintiff on 25 March 2010. A copy
of the
notice is annexed to the opposing affidavit. There is no prescribed
time period in the
National Credit Act regulations
within which the
debt counsellor must apply to court for an order in terms of
s 86(7)(c)
after giving notice to creditors by way of a Form
17.2 that the debtor’s obligations are in the process of being
restructured.
However, a debtor whose application for debt review
is rejected by a debt counsellor is required, if s/he so wishes, to
make
an application in terms of
s 86(9)
for an order in terms
of
s 86(7)(c)
of the Act within 20 business days. In
National
Credit Regulator v Nedbank Limited and Others
2009
(6) SA 295
(GNP) at 305C, Du Plessis J stated that 'matters of
over-indebtedness are by nature urgent and require speedy
resolution'.
I respectfully agree with that statement and
I
can see no reason why it should not be expected of a debt counsellor
to make the necessary application within an equivalent
time period;
20 business days seems to me a relatively generous allowance for the
necessary steps to be taken. In my view the
debt counsellor should
have instituted the necessary application before the end of April
2010; and at the latest within 60 business
days of 9 February
2010. No such action was taken, however; and no attempt is made in
the affidavit opposing summary judgment
to explain the apparent
inertia.
On the construction of the Act favoured by me, the debt counsellor
was afforded a further period of at least ten days to institute
the
necessary application after the plaintiff gave notice in terms of
s 86(10).
Any application instituted at that stage should have
included a prayer for relief in terms of
s 86(11).
That was
also not done; and the failure to have done so is also not
explained.
In the result the magistrates’ court before which the
application for an order in terms of
s 87(c)
has been brought
does not have the authority to grant relief in terms of
s 86(11)
because debt recovery proceedings had already competently been
commenced by the credit provider in this court before the
institution
of proceedings in the magistrates’ court.
Turning to consider
s 130
of the Act. This section in the Act
is intended to regulate legal proceedings for the enforcement of
credit agreements. It
seems to me that in the circumstances of the
current matter only the following provisions of
s 130(4)
might
be relevant if summary judgment were to be refused and the matter
were to go to trial:
(4) In any proceedings contemplated in this
section, if the court determines that-
the credit agreement was reckless as described in
section 80
, the court must make an order contemplated in
section 83
;
..
(c) the credit agreement is subject to a pending debt
review in terms of
Part D
of Chapter 4, the court may-
(i) adjourn the matter, pending a
final determination of the debt review proceedings;
(ii) order the debt counsellor to
report directly to the court, and thereafter make an order
contemplated in
section 85
(b)
; or
(iii) if the credit agreement is
the only credit agreement to which the consumer is a party, order the
debt counsellor to discontinue
the debt review proceedings, and make
an order contemplated in
section 85
(b)
…
…
There is no suggestion in the affidavit opposing summary judgment
that the credit agreement was reckless as described in
s 80
of
the Act. There is apparently in any event authority to the effect
that it is not a defence to a claim for return of goods
sold in
terms of a credit agreement to allege that credit was recklessly
extended.
11
It is, however, not necessary to make any finding in that
connection in the absence of any allegation by the defendant in her
opposing affidavit which could found a determination in terms of
s 130(4)(a)
that the credit agreement was reckless as described
in
s 80.
The provisions of
s 130(4)(c)
are curious. On the face of it
the credit agreement in the current matter is not subject to a
pending debt review because of
the termination of the review in
respect of this agreement in the circumstances discussed earlier in
this judgment. The provisions
of
s 130(4)(c)(i)
and (ii) can
be given a sensible import only if construed to relate to a credit
agreement that was subject to a debt review that
is still pending,
but which has been terminated insofar as the credit agreement which
is before the court in the enforcement
proceedings is concerned.
The only credit agreement which was subject to pending debt review
that can competently be enforced
in court proceedings is one in
respect of which the debt review has been terminated by notice in
terms of
s 86(10).
What to make of
s 130(4)(c)(iii)
in
the context of my construction of
s 130(4)(c)(i)
and (ii)
defies my ingenuity. What can be discerned, however, is that all
three sub-paragraphs appear to be directed at reiterating
the
court’s power in the circumstances to make an order in terms
of
s 85(b)
of the Act.
12
In my view the court determining competently instituted enforcement
proceedings would have that power in any event by virtue
of the
provisions of
s 85
itself. The enforcement proceedings are
undoubtedly ‘court proceedings in which a credit agreement is
being considered’
within the meaning of
s 85.
The effect
of
s 85
is that a court in which a credit agreement is being
considered may, if it is alleged that the consumer under the credit
agreement
is over-indebted, after suitable enquiry and
consideration, make an order in terms of
s 86(7)
or
s 87
of the Act, as the case might be. Having regard, however, to the
provisions of
s 129(1)(b)
of the Act, it should only be in an
exceptional case that this course will be considered. There would,
in my view, have to be
an adequate explanation by the consumer
defendant as to why s/he had not applied for debt review on receipt
of a notice from
the plaintiff in terms of
s 129(1)(a)
, or, if
such application for debt review had been instituted, as to why it
had been allowed to be terminated. Any other approach
would render
nugatory the effect of the exercise by a credit provider of the
right to terminate the debt review pursuant to notice
in terms of
s 86(10)
and would give rise to an implementation of the
statute in a manner biased unduly in favour of consumers to the
prejudice of
credit providers. As mentioned earlier in this
judgment, such an approach would be at odds with the objects of the
Act. There
is no adumbration in the affidavit opposing summary
judgment of any basis upon which any such explanation by the
defendant might
be founded.
In the circumstances, as there is no basis for defence disclosed in
the opposing affidavit other than reliance on the debt review
application instituted after the competent institution of these
proceedings, the plaintiff is entitled to summary judgment in
its
favour.
Summary judgment is granted in favour of the plaintiff against the
defendant in the following terms:
The cancellation of the WheelSave Rental Agreement concluded
between Rola Pre-Owned (Pty) Ltd t/a InspectaCar Helderberg and
the
defendant on 23 September 2005 in respect of 2003 model Mitsubishi
Colt motor vehicle with engine no. 4M4OGH1230 is confirmed.
The defendant is ordered to deliver the said motor vehicle up to
the plaintiff.
The defendant is ordered to pay the plaintiff’s costs of
suit.
It is further ordered that the relief sought by the plaintiff in
terms of prayers (c) and (d) of the particulars of claim together
with any attendant questions of costs shall stand over for later
determination.
A.G. BINNS-WARD
Judge of the High Court
1
The
judgment is available at
http://www.saflii.org.za/cases
ZAGPJHC/2010/28/html .
2
The judgment is available at
http://www.saflii.org/za/cases/ZAECBHC/2010/4.pdf
. The part of the judgment on which the plaintiff’s
counsel
appears to have relied is at para.s [33]-[44].
3
The long title of the Act reflects that it is an
Act ‘
To promote a fair and
non-discriminatory marketplace for access to consumer credit and for
that purpose
to
provide for the general regulation of consumer credit and improved
standards of consumer information;
to
promote black economic empowerment and ownership within the consumer
credit industry;
to
prohibit certain unfair credit and credit-marketing practices;
to
promote responsible credit granting and use and for that purpose to
prohibit reckless credit granting;
to
provide for debt re-organisation in cases of over-indebtedness;
to
regulate credit information;
to
provide for registration of credit bureaux, credit providers and
debt counselling services;
to
establish national norms and standards relating to consumer credit;
to
promote a consistent enforcement framework relating to consumer
credit;
to
establish the National Credit Regulator and the National Consumer
Tribunal;
to
repeal the Usury Act, 1968, and the Credit Agreements Act, 1980; and
to
provide for related incidental matters.’
4
Section 3 of the Act provides:
The purposes of
this Act
are to
promote and advance the social and economic welfare of South
Africans, promote a fair, transparent, competitive, sustainable,
responsible, efficient, effective and accessible
credit
market and industry, and to protect consumers, by-
a)
promoting
the development of a credit market that is accessible to all South
Africans, and in particular to those who have historically
been
unable to access credit under sustainable market conditions;
b)
ensuring
consistent treatment of different credit products and different
credit providers;
c)
promoting
responsibility in the credit market by-
i)
encouraging
responsible borrowing, avoidance of over-indebtedness and fulfilment
of financial obligations by consumers; and
ii)
discouraging
reckless credit granting by credit providers and contractual default
by consumers;
d)
promoting
equity in the credit market by balancing the respective rights and
responsibilities of credit providers and consumers;
e)
addressing
and correcting imbalances in negotiating power between consumers and
credit providers by-
i)
providing
consumers with education about credit and
consumer
rights;
ii)
providing
consumers with adequate disclosure of standardised information in
order to make informed choices; and
iii)
providing
consumers with protection from deception, and from unfair or
fraudulent conduct by credit providers and credit bureaux;
f)
improving
consumer credit information and reporting and
regulation
of credit bureaux;
g)
addressing
and preventing over-indebtedness of consumers, and providing
mechanisms for resolving over-indebtedness based on the
principle of
satisfaction by the consumer of all responsible financial
obligations;
h)
providing
for a consistent and accessible system of consensual resolution of
disputes arising from credit agreements; and
i)
providing
for a consistent and harmonised system of debt restructuring,
enforcement and judgment, which places priority on the
eventual
satisfaction of all responsible consumer obligations under credit
agreements.
5
The period of notice required before enforcement
proceedings can be instituted after notice has been given in terms
of s 86(10)
is at least ten business days. See s 129(2)
read with s 130(1)(a).
6
See, for example, Steyn,
Die
Uitleg van Wette
, 5de uitgawe, (Juta,
1981) at p.48ff, s.v. ‘
Inbegrypende
interpretasie’
; and De Ville
Constitutional and Statutory
Interpretation
(2000), Ch. 3
at §15
and §16.
7
The judgment is available at
http://www.saflii.org.za/za/cases/ZAWCHC/2009/175.html
.
8
An application to the Tribunal would fall to be
made if a consent order was sought in terms of s 86(8)(a) read
with s 138
of the Act.
9
I was referred to a further judgment of
Kathree-Setiloane AJ, in
SA
Securitisation (Pty) Ltd v Matlala
(29 July 2010) SGJHC case no. 6359/2010, in which the learned
acting judge expressed the view that the court referred to
in
s 86(11) is the court before which enforcement proceedings are
brought and not the magistrate’s court before which
an
application in terms of s 87 is being heard or is pending.
With respect, I consider that construction to be erroneous.
Apart
from any other consideration, if that were so what would one have to
make of the words ‘
the
Magistrate’s Court
hearing the matter
’ when the
enforcement proceedings, as in the current case, were brought in the
High Court?
10
As has been pointed out previously, the reference
in s 129(1)(a) to s 86(9) is clearly erroneous and is
instead an intended
reference to s 86(10).
11
See para. [3] of the judgment in
SA
Taxi Securitisation (Pty) Ltd v Nako and others
(supra),
referring to an unreported judgment of Plasket J in
SA Taxi
Securitisation (pty) Ltd v T Booi and three other similar matters
(20 May 2010) in ECG case no.s 4077,5065, 4021 and 5069/2009.
12
The apparent purpose of s 130(4)(c)(i) is to provide a
procedure in terms of which the court seized with the enforcement
proceedings might delay making an order in terms of s 85 of the
Act until it was in a position to consider the contextual
effect of
such an order with regard to relief that may have been granted in
the magistrates’ court in respect of credit
agreements in
respect of which the debt review had not been terminated.