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[2010] ZAGPPHC 60
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African Bank Limited v Additional Magistrate Myambo NO and Others (34793/2008) [2010] ZAGPPHC 60; 2010 (6) SA 298 (GNP) (9 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No.: 34793/2008
Date
heard: 10 December 2009
Date
of judgment: 9/07/2010
In
the matter between:
AFRICAN
BANK LIMITED APPLICANT
and
ADDITIONAL
MAGISTRATE MYAMBO N.O. FIRST RESPONDENT
KHUMISO
ABEDNEGO SEKETEMA SECOND RESPONDENT
THE
NATIONAL CREDIT REGULATOR THIRD RESPONDENT
JUDGMENT
DU
PLESSIS J:
Section
58 of the
Magistrates'
Courts Act, 32 of 1944
provides
for a procedure whereby a creditor, on obtaining the written consent
of a debtor, can obtain judgment
by
consent.
This review application concerns interaction between some of the
provisions of the
National
Credit Act, 34 of 2005
("the
NCA") and section 58 of the Magistrates' Courts Act to which I
shall simply refer as "section 58". In
particular the
questions are whether a consumer who owes a debt under a credit
agreement governed
by
the
NCA can validly consent to judgment in terms of section 58 and, if
so, what effect the NCA has on the procedure prescribed by
section 58
("the section 58-procedure") and on the adjudication of a
request for judgment by consent.
In
accordance with the section 58-procedure, the applicant in this case
applied to the clerk of the Pretoria Magistrates' Court
for judgment
by
consent
against the second respondent. The clerk of the court referred the
matter to the first respondent, a magistrate. The first
respondent
refused to grant judgment. The applicant now seeks an order reviewing
and setting aside the first respondent's decision
to refuse judgment.
In terms of its notice of motion, the applicant also sought a number
of declaratory orders but, as I shall
point out, events have
overtaken the applicant's proposed declaratory relief.
The
first respondent, to whom
1
shall
refer as "the magistrate", abides
by
this
court's decision. The second respondent ("the consumer")
did not enter an appearance to oppose the application. The
applicant
served the application on the National Credit Regulator, a juristic
person established under section 12 of the NCA. The
Regulator applied
to be joined in these proceedings, it was so joined by an order of
this court and it now is the third respondent.
The Regulator does not
oppose the review application.
The
declaratory orders that the applicant sought arose from practical
difficulties that are encountered with the interaction between
the
NCA and the section 58-procedure. Speaking for myself, I had some
doubt as to whether this court has the jurisdiction to entertain
the
applicant's proposed declaratory relief. When I raised my doubt with
the parties, the Regulator filed a counter application
wherein it
seeks declaratory orders that address the same practical
difficulties. The matter was postponed in order for the Regulator
to
notify interested parties of its counter application. Such notice has
now been given.
Section
16(1)(b)(ii) of the NCA empowers the Regulator to apply to a court
"for a declaratory order on the interpretation or
application of
any provision" of the NCA. I shall in due course deal with each
of the declaratory orders that the Regulator
seeks. Suffice it now to
point out that the parties agreed that this court's power to grant
declaratory relief on application by
the Regulator is much wider than
its power to do so under the common law or in terms of section
19(1)(a)(iii) of the
Supreme
Court Act, 59 of 1959.
Accordingly,
counsel agreed that this court has the jurisdiction to grant the
declaratory orders that the Regulator seeks. In the
circumstances it
is unnecessary to determine whether this court also has the
jurisdiction to entertain the declaratory relief that
the applicant
sought. The declaratory orders that the Regulator seeks must and will
be
considered. I shall deal with the review application first and then
with the declaratory relief sought.
The
Review
The
review application arose in the following context. It is the
principal business of the applicant, a bank and a credit provider
under the NCA, to grant unsecured cash loans to customers. In May
2006 it granted such a loan to the second respondent. The loan
with
interest thereon was repayable in monthly instalments.
When
the loan was granted, the NCA had not come into operation yet. The
loan was at the time granted in accordance with an exemption
under
the
Usury
Act, 73 of 1968.
When,
but for some provisions to which I shall refer later, the NCA came
into operation on Uune 2006, it repealed the Usury Act.
1
The
repeal of the Usury Act was subject to transitional arrangements
contained in Schedule 3 of the NCA. It is not in issue that
the loan
agreement between the applicant and the consumer constitutes a
"pre-existing credit agreement" as defined in
Schedule 3 of
the NCA
2
.
With some exceptions
3
,
the loan is governed by the NCA.
4
I
return to the facts. The consumer had to make the first monthly
repayment of the loan in June 2006. He duly made that payment
but
from July 2006 onwards, he defaulted on his monthly payments save for
one irregular payment that he made in November 2006.
On about
1
5
September 2006 the applicant caused a letter of demand in terms of
section 129(1) of the NCA to be posted to the consumer's chosen
domicile.
5
The consumer did not respond. During about December 2007 a tracing
agent commissioned by the applicant delivered a second letter
of
demand to the consumer. The second letter of demand complied with the
provisions of section 58 and with the relevant Magistrates'
Courts'
Rules
6
("the Rules") thus commencing the section 58-procedure. On
receipt of the second letter of demand, the consumer, at the
request
of the tracing agent, signed a consent to judgment. He also undertook
to pay the outstanding amount, interest and costs
in monthly
instalments. In terms of section 58 and on the strength of the
consumer's written consent, the applicant, on
4
March
2008, applied to the clerk of the Pretoria Magistrates' Court for
judgment by consent. The clerk of the court referred the
matter
7
to the first respondent. The learned magistrate refused judgment and
initially gave a number of brief reasons to which I shall
refer as
the "initial reasons". She was formally asked for reasons
and then gave fuller reasons to which I shall refer
as her "reasons".
As
I understand the learned magistrate's reasons, her essential
conclusion was that the concept of a judgment by consent is contrary
to the purposes of the NCA. Before I deal with that essential
conclusion, I first turn to reasons that the magistrate gave in
support thereof.
The
learned magistrate reasoned that section 19 of the
Credit
Agreements Act, 75 of 1980
prohibited
a creditor (except in certain circumstances) to use the procedures
provided for in sections 57 and 58 of the Magistrates'
Courts Act.
She further reasoned that the Credit Agreements Act is a predecessor
of the NCA and that, although there is no similar
provision in the
NCA, "the National Credit Act envisioned a similar bar".
The
NCA repealed the Credit Agreements Act.
8
In that sense the Credit Agreements Act is one of the "predecessors"
of the NCA. Section 19 of the Credit Agreements
Act, however, did not
provide that a creditor may not use the consent to judgment procedure
provided for in section
58
of the Magistrates' Courts Act.
9
To
that extent, the learned magistrate's reasoning is, with respect,
incorrectly premised.
10
I
now turn to what I have termed the magistrate's essential conclusion,
i.e.
that
the concept of a judgment by consent is contrary to the purposes of
the NCA.
Section
58 of the Magistrates' Courts Act provides: "58.
Consent
to judgment or to judgment and an order for payment of judgment debt
in instalments.―(1)
If
any person (in this section called the defendant), upon receipt of a
letter of demand or service upon him of a summons demanding
payment
of debt, consents in writing to judgment in favour of the creditor
(in this section called the plaintiff) for the amount
of the debt and
the costs claimed in the letter of demand or summons, or for any
other amount, the clerk of the court shall, on
the written request of
the plaintiff or his attorney accompanied by―
(a)
if no summons has been issued, a copy of the letter of
demand;
and
(b)
the defendant's written consent to judgment,
(i)
enter judgment in favour of the plaintiff for the amount of the debt
and the costs for which the defendant has consented to
judgment; and
(ii)
if it appears from the defendant's written consent to judgment that
he has also consented to an order of court for payment
in specified
instalments or otherwise of the amount of the debt and costs in
respect of which he has consented to judgment, order
the defendant to
pay the judgment debt and costs in specified instalments or otherwise
in accordance with this consent, and such
order shall be deemed to be
an order of the court mentioned in section 65A
(1).
(2)
The provisions of section 57 (3) and (4) shall apply in respect of
the judgment and court order referred to in subsection
(1)
of
this section." Section 58(2) is to the effect that the judgment
creditor must notify the debtor that a judgment has been
entered
11
.
Its further effect is that the consent judgment shall have the effect
of a default judgment
12
.
In terms of section 58A of the Magistrates' Courts Act a judgment
entered by the clerk of the court shall be deemed to be a judgment
of
the court. To sum up, when the clerk of the court grants judgment by
consent, the judgment is deemed to be a default judgment
granted by
the court.
The
NCA did not expressly repeal section 58. On the contrary, the NCA
provides for a mechanism to resolve conflict between section
58 and
the provisions of the NCA: Section 172(1) of the NCA provides that if
"there is a conflict between a provision of this
Act mentioned
in the first column of the table set out in Schedule 1, and a
provision of another Act set out in the second column
of that table,
the conflict must be resolved in accordance with the rule set out in
the third column of that table." Section
58 is mentioned in the
second column of Schedule 1 to the NCA. I shall in due course return
to the provisions of section 172(1)
read with Schedule 1. It is for
present purposes sufficient to state that the mere fact that the NCA
provides for a mechanism to
resolve conflict between section 58 and
the NCA, necessarily implies that the NCA did not repeal section 58
but recognised its
continued existence. This conclusion is fortified
by sections 172(2) and (4) that respectively provide expressly for
the amendment
of certain provisions in other statutes and for the
repeal of statutes. Section 58 is not mentioned in these subsections.
The
section 58-procedure is a particularly cost-effective and speedy one.
The advantages of cost effective and speedy debt collection
are self
evident. Provided that the provisions of section 58 and those of the
NCA are applied properly and with due regard to the
parties' rights,
it is in the interests of credit providers, of consumers and of
justice that the procedure be utilised. The purposes
of the NCA are
set out in section 3 thereof. Mindful of the dangers of selective
quotation, I would nevertheless stress the introductory
part of
section 3:
"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".
Cost- and time effective collection procedures that are fair will
promote these aims. In fact, increasing the costs of debt collection
in respect of credit agreements will probably lead to increased cost
of credit which consumers will ultimately have to pay. Subject
to
what I say later about the interaction between specific provisions of
the NCA and the section 58-procedure, I cannot agree with
the learned
magistrate that the procedure as such is contrary to the purposes of
the NCA.
By
holding that the section 58-procedure is contrary to the NCA and
cannot be applied in cases originating from credit agreements,
the
learned magistrate, with respect, misconceived her jurisdiction. That
was a gross irregularity and on that basis alone the
review must
succeed
13
and the matter remitted to the learned magistrate for her to consider
it afresh. It is necessary to point out that the learned
magistrate
gave further reasons that the parties, or one of them, take issue
with. It is convenient to deal with those reasons
in the course of
considering the Regulator's counter application.
Before
dealing with the counter application, I must first deal with one of
the learned magistrate's initial reasons. The reason
reads: "Non
compliance with the National Credit Act in that no documents attached
regarding whether credit
See
section
24(1
)(c) of the
Supreme
Court Act, 59 of 1959.
granted
reckless or not". I have pointed out that the loan to the
consumer in this case pre-dates the NCA and is a ""pre-existing
credit agreement" as defined in the NCA.
14
Part D of Chapter 4
15
applies
to a pre-existing credit agreement "only to the extent that it
does not concern reckless credit".
16
It follows that the credit that the applicant granted to the consumer
in this case cannot be held to have been reckless credit.
The
Counter Application
I
intend to deal in turn with each of the declaratory orders that the
Regulator seeks. Before I do that, it is convenient to deal
with an
argument presented to us on the applicant's behalf. The argument
concerns the nature of the section 58-procedure. It underpinned
many
of the applicant's contentions in respect of the declaratory orders
that it took issue with.
Section
58 deals with the collection of a debt. That presupposes an
underlying legal relationship
17
that gave rise to the debt. For the applicant Mr Louw argued that
when a defendant consents to judgment in terms of section 58,
a new
cause of action, distinct from the underlying legal relationship, is
created. The legal position, counsel argued, is similar
to that when
a debtor issues a cheque to pay a debt. The cheque neither novates
nor replaces the underlying
that underlying legal relationship.
18
Consequently, the argument went on, when a plaintiff requests
judgment by consent, the clerk of the court or the magistrate, as
the
case may be, is concerned only with the consent as a cause of action
and not with the underlying cause of action. This means,
the argument
continued, that where consent to judgment originated from a credit
agreement governed by the NCA, the clerk of the
court or the
magistrate is not concerned with the credit agreement but only with
the consent to judgment. In essence the argument
was that there is
almost no interaction, and therefore no conflict, between section 58
and the NCA.
Section
58 applies, firstly, to cases wherein any person consents to judgment
"upon ... service of a summons demanding payment
of a
19
debt". In such cases the summons must contain particulars of the
plaintiff's claim
20
and it must set out a cause of action
21
.
That cause of action will necessarily be based on the underlying
legal relationship that gave rise to the debt: When the summons
is
issued, no other cause of action exists.
Section
58 also provides for an exceptional procedure whereby a plaintiff can
obtain judgment without the need to issue and serve
a summons: In
terms
If
it does not, the summons will be subject to exception. See Rule
17(2)(a) of the Magistrates' Courts' Rules.
of
section 58(1) a person can consent to judgment also "upon
receipt of a letter of demand ... demanding payment of a debt"
and the plaintiff can then proceed, on the strength of the letter of
demand and the written consent, to obtain judgment.
22
Rule 4B of the Rules provides that the letter of demand "shall
contain particulars about the nature and amount of the claim".
For the reasons set out in relation to the summons, the particulars
can only be those of the underlying cause of action.
In
my view it follows that a debtor who consents to judgment under
section 58 does so in respect of a cause of action specified
in the
summons or the letter of demand. By the same token, when the
plaintiff requests the clerk of the court to grant judgment
in terms
of section 58, the request is based on the cause of action set out in
the summons or the letter of demand. That is why
section 58
specifically requires the letter of demand to be placed before the
clerk of the court.
23
Section 58(1) created a procedure whereby a plaintiff can obtain
judgment. The function of the written consent is to obviate the
need
for the plaintiff to prove the claim based on the underlying legal
relationship. Once the clerk of the court grants judgment
by consent,
it has the effect of a judgment by default
24
granted by the court
25
in respect of the cause of action set out in the
summons
or the letter of demand. The consent judgment renders that cause of
action
res
judicata
26
It
is concluded that when a plaintiff applies for judgment by consent in
terms of section 58, it is an application for judgment
based on the
cause of action stated in the summons or the letter of demand. It is
that cause of action that is before the clerk
of the court and not a
new cause of action based only on the written consent to judgment.
That
brings me to the orders that the Regulator seeks. Each order sought
serves as a heading to its discussion. The number of the
relevant
prayer, as it appears in the Regulator's Notice of Application and
Set Down dated 4 November 2009, is given in brackets.
The
commencement of the NCA did not repeal section 58 or render it
nugatory in respect of debts to which the NCA applies.
(1.1)
I
have already concluded that the NCA did not repeal section 58 and
that the section 58-procedure may be utilised in cases to which
the
NCA applies.
The
commencement of the NCA did not affect the efficacy of the section
58-procedure in respect of debts to which the NCA applies.
(1.2)
As
I shall point out later in this judgment, the NCA certainly had an
effect on the section 58-procedure. Whether the NCA affected
the
efficacy of the section 58-procedure is, however, a value judgment.
Some may perceive it to be as efficacious as ever. Others
may differ.
It serves no purpose for this court to declare its value judgment. No
order will be made in terms of prayer 1.2.
Clerks
of the court may refer the request for judgment in terms of section
58 to the court in terms of rule 12(7) of the Magistrates'
Courts'
Rules.
(1.4)
In
terms of section 58 "the clerk of the court
shall
...
enter judgment in favour of the plaintiff' if the written request for
judgment
27
is accompanied by the letter of demand, if there is one, and the
defendant's written consent to judgment.
As
a general proposition the word "shall" is used to convey
that a legislative provision is peremptory. In my view, however,
the
word "shall" in section 58 does not mean that clerks of the
court are obliged to grant judgment if the application
is formally in
order. Judgments by consent that clerks of the court grant are deemed
to be default judgments granted by the court.
In view thereof the
legislature, when it used the word "shall", could not have
intended that clerks of the court have
no function other than to
check whether the application for consent judgment is formally in
order. In my view the use of the word
"shall" in section 58
limits the clerk of the court's discretion in the sense that, if the
application is formally in
order, the clerk of the court has no
discretion finally to refuse judgment. That does not mean, however,
that the clerk of the
court may not refer to the court an application
that is formally in order. Put differently, the word "shall"
in section
58 means that clerks of the court have the discretion t do
one of three things. They can refuse judgment. They can grant
judgment
if the papers are formally in order. If the papers are
formally in order but the clerk of the court has reason to question
the
plaintiff's entitlement to judgment, the clerk of the court must
refer the matter to the court in terms of rule 12(7). This
interpretation
of section 58 ensures that the court retains a measure
of oversight over a procedure whereby clerks of the court grant
judgments
so to speak in the court's name. The interpretation is also
practical and consonant with the provisions of rules 11(6), 12(5) and
12(7).
Rule
12(5) provides: "The clerk of the court shall refer to the court
any request for judgment on a claim founded on any cause
of action
arising from or based on an agreement governed by the ... Credit
Agreements Act, 1980 (Act No. 75 of 1980), and the court
shall
thereupon make such order or give such judgment as it may deem fit".
Some magistrates hold that rule 12(5) applies to
cases where the
cause of action arose from a credit agreement under the NCA.
Accordingly,
their view is that all requests for judgment by consent based on
credit agreements under the NCA must be referred to
the court. For
the following reasons rule 12(5) does not apply to claims that arose
from credit agreements under the NCA.
Section
12(1) of the
Interpretation
Act, 33 of 1957
provides
as follows: "Where a law repeals and re-enacts with or without
modifications, any provision of a former law, references
in any other
law to the provision so repealed shall, unless the contrary intention
appears, be construed as references to the provision
so re-enacted."
Section 172(4) of the NCA repealed the Credit Agreements Act but did
not re-enact it. Thus, the reference
to the latter act in rule 12(5)
cannot be read as a reference to the NCA. An observation in this
regard is, we think, appropriate.
The NCA calls for the careful
balancing of the rights and interests of consumers against those of
credit providers. Such balancing
is best performed by the courts. The
failure to amend rule 12(5) to refer to the NCA might have been an
oversight. We suggest that
the Regulator discusses the possibility of
amending the rule with the relevant legislative authority.
As
the law stands, where the cause of action arose from a credit
agreement under the NCA, clerks of the court are not in every case
28
obliged to refer the request for judgment by consent to the court.
The conclusion does not mean, however, that in such cases it
is
business as usual. A purpose that permeates the NCA is "to
protect consumers"
29
by way of a variety of protective measures provided for in the NCA.
Those protective measures affect the clerk of the court's discretion
in various ways. Some of the protective measures are dealt with in
this judgment. A few general observations are now appropriate.
Section
172(1) of the NCA read with Schedule 1 thereto provides that if there
is a conflict between section 58 on the one hand and,
on the other
hand Part D of Chapter 4, section 127, section 129, section 131,
section 132, Chapter 7 or section 164 of the NCA,
the provisions of
the NCA "prevail to the extent of the conflict." Thus, to
the extent that the use of the word "shall"
in section 58
limits the clerk of the courts' discretion, or that of the court, in
a manner that does not allow them to give full
effect to the relevant
provisions of the NCA, the provisions of the NCA must prevail.
If
a clerk of the court has any uncertainty as to whether granting
judgment against a consumer might be in conflict with the NCA,
and
with protective measures in particular, the clerk of the court must
refer the matter to the court.
An
order in terms of prayer 1.4 must therefore be made but with the
proviso that there are many instances when clerks of the court
must
refer an application to the court.
29
Section 3 of the NCA.
In
order to obtain judgment in terms of section 58, where the cause of
action arose from a credit agreement in terms of the NCA,
the
plaintiff must:
a
comply with the provisions of section 58
(prayer
1.3.1);
b
allege in the request for judgment that the requirements of
section
129 and 130 of the NCA have been met
(prayer
1.3.3);
c
attach a copy of the section 129 letter of demand to the
application,
(prayer
1.3.2)
There
is nothing in the NCA that provides or implies that a credit provider
need not comply with section 58 when requesting judgment
by consent.
I shall point out that the NCA sets additional requirements, but the
credit provider (plaintiff) must comply with section
58.
Must
the credit provider (plaintiff) allege that the requirements of
sections 129 and 130 of the NCA have been met?
Section
129(1)(a) of the NCA provides: "If the consumer is in default
under a credit agreement, the credit provider... may
draw the default
to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to a debt counsellor,
alternative
dispute resolution agent, consumer court or ombud with jurisdiction,
with the intent that the parties resolve any dispute
under the
agreement or develop and agree on a plan to bring the payments under
the agreement up to date". I shall refer to
this notice as the
section 129-notice.
Section
86(10) of the NCA provides that "if a consumer is in default
under a credit agreement that is being reviewed in terms
of this
section
30
,
the credit provider in respect of that credit agreement may give
notice to terminate the review in the prescribed manner".
The
section 86(10) notice must be given to the consumer, the debt
counsellor and to the Regulator.
31
In
terms of section 129(1)(b)(i) of the NCA a credit provider, "subject
to section 130(2), may not commence any legal proceedings
to enforce
the agreement before ... first providing notice to the consumer, as
contemplated in paragraph (a)
32
,
or in section 86 (10), as the case may be".
It
has been held that section 129(1)(b) is peremptory.
33
Pointing out that there are cases in which the NCA does not require a
section 129-notice or a section 86(10)-notice
34
,
I respectfully agree that, where the NCA requires it, the requirement
is peremptory. By virtue of section 129(1 )(b)(i) the credit
provider's cause of action is not complete unless the section
129-notice or a section 86(10)-notice has been given. It follows
that, where the action against a consumer is
commenced
by way of summons, the summons must contain an allegation that either
section 129(1)(a) or section 86(10) has been complied
with or an
allegation that notice was not necessary, stating the reason. Where
the action is commenced by way of a letter of demand,
the letter of
demand must contain such an allegation.
35
It
is important to note that the allegation must be contained in the
summons or the letter of demand and not in the request for
judgment
by consent. That is so because the allegation completes a cause of
action and also because the consumer must be aware
that the
allegation is made. If he or she is not so aware, the consent will
not be informed consent.
In
terms of section 129(1)(b)(ii) a credit provider may "not
commence any legal proceedings to enforce the agreement before
...
meeting any further requirements set out in section 130."
Section
130(1) provides that, subject to section 130(2)
36
,
"a credit provider may approach the court for an order to
enforce a credit agreement only if, at that time, the consumer
is in
default and has been in default under that credit agreement for at
least 20 business days". By virtue of the provisions
of section
129(1)(b)(ii) read with section 130(1) and for the reasons I have
given, the
summons
or the letter of demand, as the case may be, must contain
allegations, firstly that the consumer is in default and, secondly,
that he or she has been in default under the credit agreement for at
least 20 business days.
Under
section 130(1)(a) of the NCA, "a credit provider may approach
the court for an order to enforce a credit agreement only
if... at
least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated in section
86(9),
or section 129(1), as the case may be". The reference to section
86(9) is a patent error. It should read 86(10). Expiry
of the 10 day
period must also be alleged in the summons or the letter of demand.
Section
130(1 )(b) provides that "a credit provider may approach the
court for an order to enforce a credit agreement only
ifin the case
of a notice contemplated in section 129(1), the consumer has ... not
responded to that notice... or (has) ... responded
to the notice by
rejecting the credit provider's proposals". Such an allegation
must also be in the summons or the letter
of demand.
In
the case of an instalment agreement, a secured loan or a lease, the
summons or the letter of demand must contain an allegation
that "the
consumer has not surrendered the relevant property to the credit
provider as contemplated in section 127" of
the NCA. (Section
130(1)(c))
Section
130(3) of the NCA provides:
"(3)
Despite any provision of law or contract to the contrary, in any
proceedings commenced in a court in respect of a credit
agreement to
which this Act applies, the court may determine the matter only if
the court is satisfied that―
(a)
in the case of proceedings to which sections 127, 129 or 131 apply,
the procedures required by those sections have been complied
with;
(b)
there is no matter arising under that credit agreement, and pending
before the Tribunal, that could result in an order affecting
the
issues to be determined by the court; and
(c)
that the credit provider has not approached the court―
(i)
during the time that the matter was before a debt counsellor,
alternative dispute resolution agent, consumer court or the ombud
with jurisdiction; or
(ii)
despite the consumer having―
(aa)
surrendered property to the credit provider, and before that
property has been sold;
(bb)
agreed to a proposal made in terms of section 129(1)(a) and
acted
in good faith in fulfilment of that agreement;
(cc)
complied with an agreed plan as contemplated in section
129(1)(a);or
(dd)
brought the payments under the credit agreement up to date, as
contemplated in section 129(1)(a)."
There
can be no doubt that proceedings to obtain judgment by consent
constitute legal proceedings. In the section 58-procedure the
clerk
of the court, though fulfilling functions of a court, is not a court,
however.
37
In the light thereof that the clerk of the court could grant a
judgment that is to be deemed to be a default judgment by the court,
the section 58-procedure in my view constitutes "proceedings
commenced in a court".
38
The requirements of section
130(3)
of
the NCA must therefore be met in the case of the section 58-procdure.
To hold otherwise would defeat the very purpose of section
1
30(3).
The
requirements of section 1
30(3)
comprise
a number of different facts. Before the court (or the clerk of the
court) may determine the matter, it must be satisfied
of each of the
facts mentioned in section
130(3).
It
is the credit provider (plaintiff) who must satisfy the court. Facts
are placed before a court either by admission or by evidence.
Where
facts are alleged in the summons or in the letter of demand, the
defendant is taken to admit those facts if he or she consents
to
judgment, it follows that a credit provider must deal in the summons
or in the letter of demand with each one of the relevant
requirements
of section
130(3)
and
allege that each one has been met. In order for the consent to be
informed, a blanket allegation that "each requirement
of section
130(3)
has
been met" will be insufficient. In the particulars of claim each
requirement must be dealt with separately. If that is
not done, the
consumer cannot be taken to have admitted the facts.
The
last question under this heading is whether the credit provider
seeking judgment by consent must attach a copy of the section
129-notice. Judgment by consent presupposes that the debtor's consent
was fully informed. In cases to which the NCA applies, informed
consent includes awareness on the part of the consumer of the
alternatives that are mentioned in section 129(1)(a)
39
.
Towards ensuring that the consumer's consent was informed, it is
necessary to attach a copy of the section 129-notice from which
the
clerk of the court or the court will see what was conveyed to the
consumer.
In
BMW
Financial Services (SA) (Pty) Ltd v Dr MB Mulaudzi Inc. 2009 (3) SA
348 (BPD)
at
para. 13 Mogoeng JP (as he then was) suggested that the section
129-notice must not be "a dry and mechanical reproduction
of the
subsection". I respectfully agree with the views that the
learned judge president expressed in the paragraph referred
to. The
notice must meaningfully bring a variety of important facts and
options to the attention of the consumer: It must bring
the default
to the consumer's attention; it must contain a proposal or proposals
aimed, not only at the resolution of any dispute
between the parties,
but
also at ways to bring payments up to date
40
.
The proposal or proposals must be such that the consumer can respond
thereto
41
.
The notice should convey to the consumer that "debt enforcement
will follow should he fail to respond to the notice or reject
the
proposals".
42
The
NCA prescribes no form for the section 129-notice. Therefore, in
terms of section 64(1)(b), it must be in "plain language".
Whether the notice is in plain language is, having regard to section
64(2), a question of fact that depends on the circumstances
of each
case, including the "class of persons" that the consumer is
part of. In a nutshell, the notice must be meaningful,
understandable
and in plain language. It must, as Mogoeng JP pointed out, add flesh
to the skeletal requirements of section 129(1)(a).
In
paragraph 12.4.10 of their work,
Scholtz,
Otto era/
suggest
a format for the notice that, in my view, serves as a helpful
guideline, i would add that the notice should contain the
names and
contact details of persons that the consumer could contact to discuss
the proposal.
The
above remarks concerning the format of the section 129-notice is of
particular importance in the context of the section 58-procedure.
For
the consumer's consent to be informed, he or she must have understood
the
available
alternatives to legal proceedings and he or she must have been given
an opportunity to pursue those alternatives.
In
view of the aforesaid, the order that the Regulator seeks must be
amended to read.
"It
is declared that in order to obtain judgment in terms of section 58
of the Magistrates' Courts Act, where the original
cause of action
was a credit agreement under the National Credit Act, a plaintiff
must comply with the provisions of section 58
of the Magistrates'
Courts Act and attach to the request for judgment (Form 5B) a true
copy of the section 129-notice contemplated
in the National Credit
Act. Such a plaintiff must in the summons or letter of demand, as the
case may be, deal with ach one of
the relevant provisions of section
129 and 130 of the National Credit Act and allege that each one has
been complied with. It is
not sufficient to make a general allegation
that "section 129 and section 130 of the National Credit Act
have been complied
with".
Where
a plaintiff seeks judgment by consent in terms of section 58 of the
Magistrates' Courts Act, clerks of the court and magistrates,
as the
case may be, are entitled to interrogate the application for judgment
and in so doing they may require proof by a plaintiff
of any fact or
document pertaining to the underlying cause of action.
(Prayers
1.5.1
and
1.5
.2
.1)
The
heading is a summary of the two prayers referred to. The orders that
the Regulator seeks in terms of these prayers deal with
all
applications for consent judgment under section 58. In terms of
section 16(1)(b)(ii) of the NCA the Regulator may apply to
a court
for a declaratory order on the interpretation or application of any
provision of the NCA. It follows that in this application
only the
interpretation and application of the NCA in relation to the section
58-procedure are relevant. It follows further that,
subject to what I
say in the next paragraph, no order should be made in respect of
prayers 1.5.1 and 1.5.2.1.
For
reasons that appear from this judgment as a whole, clerks of the
court and magistrates must know whether the underlying cause
of
action in an application for consent judgment arose from a credit
agreement under the NCA. They must know that in order properly
and
fully to apply the provisions of the NCA.
Because
the underlying cause of action will appear from the summons or the
letter of demand, clerks of the court will in most cases
know that a
credit agreement is at issue. It will in the nature of things rarely
happen, but there might be cases where, although
a credit agreement
is at issue, the plaintiff does not pertinently allege that. If, on
reading the documentation before him or
her, the clerk of the court
has reason to suspect that a credit agreement is at issue,
the
matter must be referred to the court
43
.
The court may then interrogate the request and call for documents or
facts to establish whether a credit agreement is at issue
or not. To
hold otherwise would render nugatory the provisions of the NCA in
cases where a plaintiff has failed to disclose that
a credit
agreement is at issue.
In
the result an order in the following terms must be made:
"It
is declared that where a plaintiff seeks judgment by consent in terms
of section 58 of the Magistrates' Courts Act, magistrates
are
entitled to interrogate the application for judgment and in so doing
they may require proof by a plaintiff of any fact or document
pertaining to the underlying cause of action so as to determine
whether a credit agreement under the National Credit Act is at
issue.
(Prayers
1.5.1 and 1.5.2)
Where
a plaintiff seeks judgment by consent in terms of section 58 of the
Magistrates' Courts Act, based on a cause of action arising
from a
credit agreement under the National Credit Act, clerks of court and
magistrates, as the case may be, are entitled to interrogate
the
application for judgment and in so doing they may require proof by a
plaintiff of
any
fact or document
so as to enable the clerk of the court or the court to determine
whether the granting of the credit in question was an instance
of the
granting of reckless credit or not.
(1.5.2.2.1).
This
heading is a summary of the relevant prayer. I have, however, again
limited the summary so as to reflect the relief only to
the extent
that it pertains to the interpretation or application of the NCA. The
same applies to all further headings in this judgment.
In
Part D of Chapter
4
thereof
the NCA introduced into our law the concepts of reckless credit and
over-indebtedness. The NCA carefully defines both over-indebtedness
and reckless credit.
44
For present purposes, however, their meanings may be taken to be self
evident. The NCA also provides for mechanisms to address
reckless
credit and over-indebtedness. The question that the proposed order
now under consideration asks is this: Are clerks of
the court and
magistrates, in the course of the section 58-procedure, empowered to
consider whether the underlying credit agreement
is an instance of
reckless credit?
Section
83(1) of the NCA provides:
"Despite
any provision of law or agreement to the contrary, in any court
proceedings in which a credit agreement is being considered,
the
court may declare that the credit agreement is reckless, as
determined in accordance with this Part."
The
first question is whether a request for judgment by consent based on
a credit agreement constitutes "any court proceedings
in which a
credit agreement is being considered". Mr Louw for the applicant
argued that all that is being considered in the
section 58-procedure
is the consent as a separate cause of action. I have earlier pointed
out that he argued that the underlying
cause of action is not under
consideration. For the reasons given earlier, a request for judgment
by consent is based on the underlying
cause of action giving rise to
the debt in question. If that underlying cause of action arose from a
credit agreement governed
by the NCA, then the request for judgment
by consent constitutes "court proceedings in which a credit
agreement is being considered".
It follows that the provisions
of section 83 of the NCA apply to requests for judgment by consent
arising from a credit agreement
under the NCA.
Section
83 of the NCA gives to courts the power to declare that a credit
agreement is reckless. I have earlier held that the clerk
of the
court is not a court as envisaged in the NCA.
45
If clerks of the court have reason to believe that a particular
credit agreement may be an instance of reckless credit as provided
for in section 80 of the NCA, they
must
refer the request for consent judgment to the court.
In
this regard credit providers who seek judgment by consent could avoid
unnecessary referrals to the court by putting facts before
the clerk
of the court so as to satisfy him or her that the request did not
arise from an instance of reckless
credit
46
.
Credit providers could so satisfy clerks of the court by alleging in
the summons or the letter of demand, as the case may be,
that a
credit assessment as required by section 81(2) of the NCA had been
conducted before the credit agreement was entered into
and that the
credit agreement is not reckless as provided for in section 80(1) of
the NCA. Proof that the agreement is not reckless
could also be put
before the clerk of the court by way of affidavit.
Magistrates
to whom requests for judgment by consent are referred sit as courts.
47
Accordingly, section 83 empowers them to consider whether a
particular credit agreement is an instance of reckless credit. In
order to do that, magistrates may call for evidence, including
documentary evidence, which will enable them to determine whether
a
particular credit agreement is reckless as defined in section 80 of
the NCA.
A
cautionary note is called for: Not every credit agreement is an
instance of reckless credit. Not every request for judgment by
consent is based on an instance of reckless credit. A court will
start investigating the possibility that it has before it an instance
of reckless credit if it has before it information, or a lack
thereof, grounding a reasonable belief that the credit in question
may have been granted recklessly as provided for in section 80 of the
NCA.
The
order to be made in respect of this question must reflect that only
the court has the power to declare a credit agreement reckless.
Clerks
of court and magistrates may interrogate the application for judgment
so as to determine that the defendant is not over-indebted
(as is
meant in the National Credit Act)
(1.5.2.2.2).
Section
85 of the NCA provides:
"Despite
any provision of law or agreement to the contrary, in any court
proceedings in which a credit agreement is being considered,
if
it is alleged that the consumer under a credit agreement is
over-indebted
,
the court may
(a)
refer the matter directly to a debt counsellor with a request that
the debt counsellor evaluate the consumer's circumstances
and make a
recommendation to the court in terms of section 86 (7); or
(b)
declare that the consumer is over-indebted, as determined in
accordance with this Part, and make any order contemplated in section
87 to relieve the consumer's over-indebtedness." (The
underlining is mine.)
As
in the case of possible reckless credit, the court can exercise the
powers under section 85 "in any court proceedings in
which a
credit agreement is being considered" but, different from
reckless credit cases, only "if it is alleged that
the consumer
under a credit agreement is over-indebted".
As
with the powers under section 83 and for the reasons that I have
given, the clerk of the court cannot exercise the powers under
section 85. It will in the nature of consent to judgment rarely
happen, but if it is alleged in the papers before the clerk of
the
court that the consumer is over-indebted, the clerk must refer the
matter to the court.
Once
the matter has been referred to the magistrate, the latter is
entitled to interrogate the application. If it is alleged that
the
consumer is over-indebted, the magistrate may call for evidence,
including documentary evidence, to determine whether the court
should
exercise its powers under section 85 of the NCA.
In
my view the following order should be made:
"It
is declared that where a plaintiff seeks judgment by consent in terms
of section 58 of the Magistrates' Courts Act, based
on a cause of
action arising from a credit agreement under the National Credit Act
a
nd
where it is alleged that the defendant is over-indebted
,
clerks of the court must refer the application to the court. In such
cases, magistrates are entitled to interrogate the application
for
judgment and in so doing they may require proof by a plaintiff of any
fact or document so as to enable the court to determine
whether it
should act in terms of the section 85 of the National Credit Act.
Clerks
of the court and magistrates may interrogate the application for
judgment so as to enable them to establish whether the plaintiff
is
registered with the National Credit Regulator. (1.5.2.2.3)
Sections
40(3) and (4) of the NCA provide:
"(3)
A person who is required in terms of subsection (1)
48
to be registered as a credit provider, but who is not so registered,
must not offer, make available or extend credit, enter into
a credit
agreement or agree to do any of those things.
(4)
A credit agreement entered into by a credit provider who is required
to be registered in terms of subsection (1) but who is
not so
registered is an unlawful agreement and void to the extent provided
for in section 89."
In
terms of section 89(4) certain unregistered credit providers could
conclude lawful credit agreements, but that is the exception.
Section
89(5) provides what the effect of an unlawful credit agreement is:
"(5)
If a credit agreement is unlawful in terms of this section
49
,
despite any provision of common law, any other legislation or any
provision of an agreement to the contrary, a court must order
that―
(a)
the credit agreement is void as from the date the agreement was
entered into;
(b)
the credit provider must refund to the consumer any money paid by the
consumer under that agreement to the credit provider,
with interest
calculated―
(i)
at the rate set out in that agreement; and
(ii)
for the period from the date on which the consumer paid the money
to the credit provider, until the date the money is refunded
to the
consumer; and
(c)
all the purported rights of the credit provider under that credit
agreement to recover any money paid or goods delivered to,
or on
behalf of, the consumer in terms of that agreement are either
(i)
cancelled, unless the court concludes that doing so in the
circumstances would unjustly enrich the consumer; or
(ii)
forfeit to the State, if the court concludes that cancelling those
rights in the circumstances would unjustly enrich the consumer."
Relevant
to the present case, the effect is that the credit provider cannot
enforce an unlawful credit agreement. It follows that
the credit
provider seeking to enforce a credit agreement must allege that
he/she/it is registered as such or that it is, or was
when the
agreement was concluded, in terms of the NCA not necessary to be so
registered.
If,
in cases to which the NCA apply, the summons or letter of demand in
the course of the section 58-procedure does not contain
an allegation
that the credit provider was registered as such in terms of the NCA,
the clerk of the court cannot grant judgment.
He or she must refer
the application to the court
50
.
The court may then interrogate the application and apply the relevant
provisions of the NCA. An order reflecting that must be
made.
Clerks
of court and magistrates may interrogate the application for judgment
as to the computation of the admitted debt
(1.5.2.2.4)
Based
on information before him or her, a clerk of the court may reasonably
believe that the outstanding debt under a credit agreement
has,
despite the consumer's consent to judgment, not been computed in
accordance with the NCA. It might for instance be a case
where the
maximum prescribed interest rate has been exceeded. If the clerk has
such a belief, he or she must refer the request
to the court. The
magistrate may then interrogate the application. Subject thereto that
clerks of the court cannot interrogate
the request in the manner now
under discussion, an order as set out above must be made.
Clerks
of the court and magistrates may interrogate the application for
judgment so as to establish that affordabiiity calculations
had been
performed before the loan agreement had been entered into.
(1.5.2.2.5).
We
have not been referred to any provision in the NCA that requires
"affordabiiity calculations" to be performed before
a
credit agreement is entered into. While those words are not used,
sections 81 and 82, in an effort to combat reckless credit,
are aimed
at ensuring that the consumer is not granted credit that he or she
cannot afford. I have already dealt with reckless
credit and
over-indebtedness. In my view a further order in that regard will be
confusing and it is unnecessary.
Clerks
of the court and magistrates may interrogate the application for
judgment so as to establish that the debtor failed to respond
to the
plaintiff's letter of demand issued in terms of section 129 of the
National Credit Act or that the debtor rejected a proposal
made
therein
(1.5.2.2.6).
I
have held that it is necessary for the credit provider in the summons
or letter of demand to allege that at least 10 business
days have
elapsed since the credit provider delivered a section 129-notice to
the consumer and that the consumer has not responded
thereto or that
the consumer has rejected the credit provider's proposals contained
in the notice.
51
I have also held that the section 129-notice must be in plain
language, must understandable and must contain a meaningful proposal.
If
a consumer who has seen the allegations in the summons or the letter
of demand and who has received meaningful section 129-notice
consents
to judgment, he or she is, ordinarily, taken to have admitted the
allegations. In such cases the clerk of the court will
ordinarily
grant judgment if the request is in order.
There
may be cases in which the clerk of the court, despite compliance with
the above requirements, has reason to believe that,
for instance, the
consumer did not fully understand his or her rights. In such cases
the clerk of the court cannot refuse judgment
because the application
will on the face of it be in order. The clerk of the court who has
such reasonable doubt must refer the
application to the court. The
court can then interrogate the application.
Credit
providers could avoid unnecessary referrals to the court by
presenting to the consumer for signature a consent that contains
a
paragraph that conveys that the consumer was aware of and fully
understood his or her rights and options. What I have in mind
is a
paragraph along the following lines: "I have received the
attached notice in terms of section 129(1)(a) of the National
Credit
Act. The contents of the notice and the credit provider's proposals
have been explained to me in the official language of
my choice. I
understand the credit provider's proposals but I prefer to consent to
judgment as set out herein."
An
order in the above terms must therefore be made, subject thereto that
clerks of the court have no power so to interrogate the
application.
The
parties agreed that no order as to costs should be made.
In
the result the following orders are made:
1.
The decision of the first respondent given on 9 April 2008 refusing
the request of the applicant that judgment be entered against
the
second respondent in the Pretoria Magistrates' Court, case number
30241/08, is reviewed and set aside.
2.
The aforesaid matter is remitted to the first respondent to
reconsider the request of the applicant for judgment against the
second respondent.
It
is declared that:
1.
The commencement of the National Credit Act, 34 of 2005, did not
repeal section 58 of the Magistrates' Courts Act, 32 of 1944
or
render it nugatory in respect of debts to which the National Credit
Act applies. (1.1)
2.
In order to obtain judgment in terms of section 58 of the
Magistrates' Courts Act, where the original cause of action was a
credit agreement under the National Credit Act, a plaintiff must
comply with the provisions of section 58 of the Magistrates' Courts
Act and attach to the request for judgment (Form 5B) a true copy of
the section 129-notice contemplated in the National Credit
Act. Such
a plaintiff must in the summons or letter of demand, as the case may
be, deal with each one of the relevant provisions
of section 129 and
130 of the National Credit Act and allege that each one has been
complied with. It is not sufficient to make
a general allegation that
"section 129 and section 130 of the National Credit Act have
been complied with". (Prayer 1.3)
3.
In cases to which the National Credit Act applies, clerks of the
court may refer the request for judgment in terms of section
58 to
the court in terms of rule 12(7) of the Magistrates' Courts' Rules.
In many instances clerks of the court must refer such
requests to the
court, especially when they are uncertain as to whether the consumer
has been given the full benefit of protective
measures provided for
in the National Credit Act. (1.4)
4.
Where a plaintiff seeks judgment by consent in terms of section 58 of
the Magistrates' Courts Act, magistrates are entitled to
interrogate
the application for judgment and in so doing they may require proof
by a plaintiff of any fact or document pertaining
to the underlying
cause of action so as to determine whether a credit agreement under
the National Credit Act is at issue. (Prayer
1.5.2.1)
5.
Where a plaintiff seeks judgment by consent in terms of section 58 of
the Magistrates' Courts Act, based on a cause of action
arising from
a credit agreement under the National Credit Act, magistrates are
entitled to interrogate the application for judgment
and they may
require proof by a plaintiff of any fact or document so as to enable
the court to determine whether the granting of
the credit in question
was an instance of the granting of reckless credit or not.
(1.5.2.2.1)
6.
Where a plaintiff seeks judgment by consent in terms of section 58 of
the Magistrates' Courts Act, based on a cause of action
arising from
a credit agreement under the National Credit Act and where it is
alleged that the defendant is over-indebted, clerks
of the court must
refer the application to the court. In such a case, magistrates are
entitled to interrogate the application for
judgment and in so doing
they may require proof by a plaintiff of any fact or document so as
to enable the court to determine whether
it should act in terms of
the section 85 of the National Credit Act. (1.5.2.2.2)
7.
Where a plaintiff seeks judgment by consent in terms of section 58 of
the Magistrates' Courts Act, based on a cause of action
arising from
a credit agreement under the National Credit Act, magistrates are
entitled to interrogate the application for judgment
and in so doing
they may require proof by a plaintiff of any fact or document:
7.1
so as to enable the court to establish whether the plaintiff is
registered as a credit provider with the National Credit Regulator.
(1.5.2.2.3)
7.2
pertaining to the computation of the admitted debt .(1.5.2.2.4)
7.3
so
as to establish that the debtor failed to respond to the plaintiff's
letter of demand issued in terms of section 129 of the National
Credit Act or that the debtor rejected a proposal made therein
(1.5.2.2.6).
B
R DU PLESSIS
JUDGE
OF THE HIGH COURT
I
agree
M
MAKGOKA
JUDGE
OF THE HIGH COURT
Attorneys
for the applicant: SMITH-SMITH ATTORNEYS
Dirma
Building 26 Long Street KEMPTON PARK 1620
Counsel
for Applicant: ADV P F LOUW SC
Attorney
for first and second respondents: No appearance
Attorneys
for third respondent: MOTHLE JOOMA SABDIA INC
First
floor, Duncan Manor Cnr Duncan and Brooks Streets Brooklyn PRETORIA
Counsel
for third respondent: ADV P G ROBINSION SC
1
1
See
section 172(4)(a) of the NCA
2
See
item 1 of Schedule 3.
3
1
shall deal with exceptions as and when they become relevant to this
judgment.
4
See
item 4 of Schedule 3.
5
Section
129 of the NCA only came into operation on 1 June 2007. Thus, when
the applicant sent the letter of demand in terms of
section 129, it
was not yet required. Nothing turns on that, however, as section 129
had come into operation by the time judgment
by consent was applied
for. See
infra.
6
See
Rule 4B of the Magistrates' Courts Rules
7
See
Rule 12(7) of the Magistrates' Courts' Rules to which fuller
reference will be made later.
8
Section
172(4)(b) of the NCA.
9
Section
19 of the Credit Agreements Act provided:
19.
Orders as to committal for contempt
of court and emolument attachment and garnishee orders.
—No
court shall make—
(a)
an order for committal for
contempt of court;
(b)
an emoluments attachment order;
9c
a garnishee order;
(
d)
(d) an order referred to in section 65A (1) of the
Magistrates' Courts Act, 1944 (Act No. 32 of 1944), or in rule 45
(12) (j) of the Uniform Rules of Court published under section 43
(2) (a) of the Supreme Court Act, 1959 (Act No. 59 of 1959),
for
the purpose of enforcing compliance with any judgment or order of
court for payment by any credit receiver of any amount payable
in
terms of, or as a result of the termination or rescission of, or as
damages for the breach of, a credit agreement which is
an
installments sale transaction, or in terms of any novation of any
claim for such amount unless the credit grantor concerned
has
satisfied the court that―
(i)
the goods in question cannot be recovered by him by reason of the
fact that without any fault on his part those goods have
been
destroyed or become lost;
(ii)
the credit receiver is no longer in possession of those goods and
the credit grantor cannot locate the whereabouts thereof
in the
Republic;
(iii)
those goods have been seized under the Customs and Excise Act, 1964
(Act No. 91 of 1964), and that it is unlikely that the
credit
grantor will obtain possession thereof.
10
I
shall deal later with Rule 12(5) of the Rules of the Magistrates'
Courts that might be thought to support the learned magistrate's
conclusion.
11
Section
57(3).
12
Section
57(4).
13
See
section 24(1)(c) of the
Supreme
Court Act, 59 of 1959.
14
Schedule
3, item 1.
15
The
provisions of the NCA that introduce "reckless credit' into our
law are to be found in Part D of Chapter
4.
16
Item
4 of Schedule 3 to the NCA.
17
"Regsverbintenis".
18
See
for instance
Adams
v
SA
Motor
Industries
Employers Association 1981 (3) SA 1189
19
The
"a" has been omitted from the English text of section
58(1), but see the signed Afrikaans text that refers to '"n
skuld" and not just "skuld".
20
See
Rule 6(1)(a) of the Magistrates' Courts' Rules.
21
If
it does not, the summons will be subject to exception. See Rule
17(2)(a) of the Magistrates' Courts' Rules.
22
See
section 58(1 )(a) and (b).
23
A
summons will be part of the court file and will be before the clerk
of the court when the request of judgment is made.
24
See
section 58(2) read with section 57(4) of the Magistrates' Courts
Act.
25
See
section 58A of the Magistrates' Courts Act.
26
The
judgment in
Blaikie-Johnstone
v P. Hollingsworth (Pty) Ltd 1974 3 SA 392 (D)
dealt
with rule 31(1) of the High Court Rules. The wording of rule 31(1)
is different from that of section 58. The approach of
the learned
judge is nevertheless instructive. He had no difficulty in
proceeding on the footing that a judgment on confession,
as a
consent judgment is called in the High Court rule, is a judgment
based on the underlying cause of action and that it operates
as
res
judicata
in
respect of that cause of action. See in particular the remarks at p.
394A and at 395A toC.
27
In
terms of the Rules the written request will be on Form 58.
28
There
are many instances where clerks of the court must refer applications
to the court. I deal with them later
29
Section
3 of the NCA.
30
This
is a reference to an application for debt review under section 86 of
the NCA.
31
Paragraphs
a, b and c of section 86(10).
32
This
is a reference to section 129(1 )(a).
33
ABSA
Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 545
(DCLD)
at
para 31 and 34; see also
Scholtz,
Otto, Van
Zyl,
Van
Heerden and Campbell: Guide to the National Credit Act,
12-7
(paragraph 12.4.2 and the authorities referred to in footnotes 48,
49 and 50. I shall refer to this publication as
"Stolz,
Otto e*
al".
34
See section 129(2).
35
I
have, as regards allegations to be made, throughout made use of the
helpful discussion by Scholtzz, Otto ef
al
at
12-22, para. 12.8.
36
Section 130(2) provides for exceptions to the 20-day requirement.
The reader is referred to the subsection.
37
See
section 166 of the
Constitution
of the Republic of South Africa, 1996.
"Court"
is
not
defined in the NCA.
38
I
have earlier held that they are proceedings concerning the credit
agreement.
39
Debt
counselling, alternative dispute resolution agent, consumer court or
ombud with jurisdiction.
40
See
section
130(3)(c)(ii)
41
Section
130(1)(b).
42
Scholtz,
Otto et al,
12-16,
para. 12.4.9
43
By
reason of the clerks' limited discretion, they cannot call for
evidence.
44
Sections 79 and 80.
45
See
footnote 37.
46
For
reasons stated earlier, this does not apply to "pre-existing
credit agreements"
47
See
Rule 12(7).
48
Of
section 40.
49
And
section 40(4), see section 89(2){d).
50
That
is the effect of the word "shall" in section 58.
51
Section 130(1)(a, 130(1 )(b)(i) and (ii).