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[2023] ZAFSHC 88
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Serfontein and Another v ABSA Bank Ltd and Others (4659/2021) [2023] ZAFSHC 88; [2023] 2 All SA 851 (FB); 2023 (5) SA 579 (FB) (22 March 2023)
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Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION
.
BLOEMFONTEIN
Application
number: 4659/2021
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the application between:
JOHAN
SERFONTEIN
1
st
Applicant
JACOBUS
HENDRIK
SERFONTEIN
2
nd
Applicant
And
ABSA
BANK LTD
1
st
Respondent
FRANCOIS
ELS
N.O
.
2
nd
Respondent
(In
his capacity as a trustee of the
Francois
Els Trust, IT no. 1298/98)
ADRIAAN
BENJAMIN VOSLOO
N.O
.
3
rd
Respondent
(In
his capacity as a trustee of the
Francois
Els Trust, IT no. 1298/98)
REGISTRAR
OF
DEEDS
4
th
Respondent
JUDGMENT
BY:
VAN
ZYL,
J
HEARD
ON:
2 FEBRUARY 2022
DELIVERED
ON:
9 SEPTEMBER
2022; 22 MARCH
2023
[1]
On 9 September
2022 I made
the following order in this matter:
1.
In terms of
the provisions of sections 89, 90 and 91, read with
section 164(1)
of
the
National Credit Act, 34 of 2005
, the acknowledgement of debt,
incorporating a power of attorney to dispose of Portion 3 of the farm
W [....] 92, Extension
[....], District Kroonstad, Free State
Province, in extent [....].717 hectares ("the property"),
of which the first applicant
is the owner, entered into between the
applicants and the first respondent on 17 March 2019, is declared
void from the date it
was entered into.
2.
The agreement
of sale of the property to the Francois Els Trust, IT no. 1298/98,
represented by the second and third respondents,
signed by the
parties on 7 September 2021 and 13 September 2021 respectively, is
declared
void
ab initio.
3.
The fourth
respondent is prohibited from registering the property on the basis
of the agreement of sale referred to in paragraph
2 above into the
names of the second and third respondents.
4.
The counter
application is dismissed.
5.
The first
respondent is ordered to pay the costs of the application and the
counter application.
[2]
What follows
are the reasons for the aforesaid order which are being made
available to the parties on 22 March 2023.
[3]
The
applicant
approached
court
for
an
order
in
the
following
terms:
"1.
Declaring, in terms of the provisions of
sections 89
and
90
, read
with
section 164(1)
of the NCA, the purported acknowledgment of debt
(AOD) incorporating a power of attorney (POA) attached to the
founding affidavit
to dispose of certain Portion 3 of the Farm W
[....] 92, district Kroonstad, Extension [....], District Kroonstad,
Free State
Province in extent 611.717
(sic)
hectares
(property) of which the first applicant is the owner, void from the
date the AOD/POA was entered into.
2.
Declaring the
purported de.ed of sale dated respectively 7 September 2021 and 13
September 2021 in terms whereof the second and
third respondents
purportedly purchased the property from the first applicant void.
3.
Ordering the
fourth respondent to refrain from registering the property into the
name of the second and third respondents.
4.
Ordering the
first respondent to pay the applicants'
costs on the
scale between attorney and client.
5.
That, in the
event of any one or more of the second to fourth respondents oppose
the application, ordering such opposing respondent(s)
to pay the
costs on the scale as between attorney and client, jointly with the
first respondent, the one to pay the other to be
absolved."
[4]
The
first respondent opposed the application.
In its
answering affidavit the first respondent also requested that the said
affidavit serves as founding affidavit for its counter
application,
in terms
of
which the first respondent sought the following relief:
"11.26.1
That the Acknowledgment of Debt and Power of Attorney (annexure
"AB21"
to the opposing affidavit) dated 17 March 2019 be
declared valid as between first respondent and the applicants.
11.26.2
It is declared that first respondent may sell Portion 3 of the Farm
W
[....] 92 held by first applicant under Title Deed T161/1993,
in accordance with clauses 2.3 to 2.10 of the 17 March 2019
Acknowledgment
of Debt and Power of Attorney.
11.26.3
The Agreement of Sale dated 13 September 2021 (between first
applicant and
the Francois Els Trust), attached to annexure "AB28",
is declared valid and enforceable.
11.26.4
Fourth respondent is authorised to register the aforesaid farm in the
name
of the second and third respondents (the Trustees of the
Francois Els Trust).
11.26.5
The applicants to pay the costs of this counter application."
Back
g
round:
[5]
The application
consisted of lengthy affidavits and numerous annexures which
stretched over 621 pages, with the two sets of heads
of argument
consisting of a further 83 pages.
However, many
of the allegations were repetitive in nature and furthermore I do not
consider all the background facts pertaining
to the business dealings
between the applicants and the first respondent to be relevant for
purposes of the adjudication of the
application.
I will
consequently only provide a succinct summary of the background facts
which I consider to be pertinent to the present application.
[6]
The
relationship between the first applicant and the first respondent
relating to the overdraft account relevant to this application,
being
account number 4057943170, commenced with an overdraft agreement in
July 2003 with an overdraft limit of some R22 000.00
afforded to the
first applicant at that stage. Over the years the overdraft limit was
increased from time to time in terms of subsequent
agreements which
were signed between the parties.
The last
overdraft credit agreement regarding the said account was signed
between the first applicant and the first respondent on
28 July 2014,
which agreement is attached to the answering affidavit as annexure
"AB10".
At that stage
the overdraft facility was R5 200 000.00 of which R2 000 000.00 had
to be paid back to the first respondent
by 25 July
2015.
[7]
The first
respondent registered first to fourth covering mortgage bonds over
the property of the first applicant, described in the
respective
mortgage bonds as Portion 3 of the Farm W [....] 92,
District
.
Kroonstad,
Free State Province, in extent 619.8736 hectares, held by the first
applicant by way of Title Deed no. T161/1993 ("the
property").
[8]
The second respondent
bound himself as surety and co-principal debtor in terms of a written
deed of suretyship, dated 24 October
2006, to be jointly and
severally liable towards the first respondent
for
the
due
fulfilment
of
the
obligations
of
the
first
applicant in favour of the
first respondent.
The deed of
suretyship is attached to the answering affidavit as annexure "AB31".
The first respondent also registered
two covering bonds as security
over the immovable property of the second applicant, being the
Remaining Extent of the Farm W
[....], Extension [....], in the
District of Kroonstad, in extent 950.0414 hectares, held by Title
Deed no. [....].
[9]
The
first
applicant
failed
to
pay
the
abovementioned
R2
000
000.00 back to the first
respondent by 25 July 2015 as agreed between them. According to the
first respondent this failure constituted
a default as envisaged in
clause 14 of annexure "C" (the Standard Terms and
Conditions) to annexure "AB10"
(the last overdraft credit
agreement referred to earlier). The monthly interest on the overdraft
as from July 2015 onwards
amounted
to more than
R50 000.00 per month, which also remained unpaid, with the result
that the outstanding overdraft amount escalated.
On 31 August
2017 the full outstanding amount was R6 202 787.42.
As a result of
ongoing engagement between the first applicant and the first
respondent an Acknowledgment of Debt was signed by the
first
applicant on 10 May 2018, which Acknowledgment of Debt is attached to
the answering affidavit as annexure "AB14",
In terms
thereof the first applicant acknowledged,
inter
alia,
to
be
"truly
and lawfully and unconditionally indebted
to
Absa
Bank
in the
sum
of
R6
792
190.00
.
.."
.
[10]
During 2018 the
management of the first respondent transferred the
first
applicant's
overdraft
account
to
its
Legal
Recoveries
Division.
The first
respondent's attorney was mandated to engage with the applicants
regarding the overdraft account.
The said
negotiations culminated in the signing of an Acknowledgment of Debt
("AOD"), which incorporates a Power of Attorney
("POA")
authorising the first respondent to sell the first applicant's
property, dated 17 March 2019, and which agreement
forms the subject
matter of the application. I will henceforth refer to the agreement
as "the AOD/POA". In the AOD/POA
the first and the second
applicants are jointly referred to as
"the
clients".
[11]
On the
strength of the AOD/POA an auction was arranged for 17 July 2019 for
the sale of the first applicant's property. The first
applicant also
attended the auction.
An offer of R3
800 000.00 was obtained at the auction, which was not acceptable to
the first respondent.
According to
the first respondent it thereafter continuously
endeavoured to
obtain a buyer for the property for a reasonable amount.
In the
meantime, the overdraft balance escalated monthly by more than RS0
000.00 per month due to the interest.
[12]
A notice termed
"NOTICE IN TERMS OF SECTION 129 READ TOGETHER WITH
SECTION 130
OF THE
NATIONAL CREDIT ACT, NO. 34 OF 2005
", dated 24 February
2021 ("the
section 21
-notice"), was delivered to the first
applicant by the sheriff on instructions of the first respondent. It
pertained to the
overdraft account relevant to the present
application, as well as to a term loan account and a different
smaller overdraft facility.
In paragraph 7
thereof the first applicant
was advised
that he may
refer
the matter to,
inter
alia,
the
Ombudsman.
The
section 29
- notice is attached to
the
answering
affidavit as annexure "AB
22".
[13]
On 19 March
2021 the first respondent received a letter from HSL du Plessis
Attorneys, on behalf of the first applicant, in which
letter the
first respondent was advised that the matter would be referred to the
Ombudsman and a copy of the said referral was
attached to the letter.
The letter is
attached to the answering affidavit as annexure "AB23" and
the referral to the Ombudsman for Banking Services
as annexure
"AB24".
In essence it
was alleged that the first respondent had recklessly extended credit
to the first applicant.
On 27 May 2021
the first respondent addressed a response letter to the Ombudsman for
Banking Services, which letter is attached
to the answering affidavit
as annexure "AB25".
On 6 August
2021 the Ombudsman for Banking Services responded to the first
applicant by means of the letter attached to the answering
affidavit
as annexure "AB26", in which letter it was stated that for
the reasons explained in the said letter it concluded
that there were
no reasonable prospects of pursuing the matter further and that the
file has been closed
.
[14]
On 13 September 2021,
on the strength of the AOD/POA, an agreement of sale pertaining to
the property of the first applicant was
entered into with the
Francois Els Trust, represented in the agreement and in this
application by the second and third respondents
as the trustees. A
representative of the first respondent concluded and
.
signed
the agreement of sale on behalf
of
the
first
applicant.
The
purchase
price
is
R6 000 000.00, an amount of
R9 740.00 per hectare, which amount, according to the first
respondent, constitutes a market related
price. A copy of the
agreement of sale is attached to annexure "AB28" to the
answering affidavit.
[15]
On 22
September 2021 the first respondent's attorney
addressed a
letter to the first applicant in which the first applicant was
advised of the sale of the property and notified that
vacant
possession of the property has to be provided on date of transfer, on
which date the property must immediately be vacated.
The said
letter is attached to the answering affidavit as annexure "AB28".
[16]
Subsequent
correspondence followed between the relevant parties, whereupon the
applicants launched the present application.
Contentions
on behalf of the respective
parties:
[17]
References to
certain sections
'
of
the "NCA" are to be understood to be references to the
National Credit Act, 34 of 2005
, to which Act I will henceforth refer
to as "the Act".
[18]
The applicants' main
contention as set out in their heads of argument is AOD/POA
"in
its
entirety, is unlawful and accordingly void on account of the fact
that it constitutes a supplementary agreement
as
forbidden
by
section 89
of the NCAl1.
Mr Du
Plessis, who appeared on behalf of the applicants, advanced detailed
submissions in his heads of argument
in support
of the
aforesaid contention, many
of which he also highlighted during his oral argument in court.
[19]
In the
alternative, it is the applicants· contention that if the
AOD/POA
is
held not to be a supplementary
agreement, it
is to be found to be a credit agreement
"which
by virtue of the numerous contraventions of the provisions of
section
90(2)...cannot
be altered by the Court to constitute a legal binding
agreement
as
is provided
for by
section 90(4)(a)
...and is accordingly,
in its
entirety, to be regarded
as
unlawful
and, as
as
provided by
section 90(4)(b)
to be declared unlawful as from the date that the
agreement took effecf'.
[20]
The first
respondent's contentions in opposition to the applicants' aforesaid
contentions are set out as follows in its heads of
argument:
"3.6"
[With
reference
to
the
definitions
of
"supplement"
and
"supplementary"]
"[T]his
proves
that
the
Acknowledgment
of
Debt &
Power of Attorney is not a supplementary
agreement to
the overdraft credit agreement.
It does not
add to the credit agreement as
such.
To
the contrary,
it
was
entered
into
four
years
after
the credit
agreement.
After the
credit agreement
has run its
course - and the default in terms thereof has occurred.
3.6.1
And
furthermore, it does not further describe and/or define and/or
arrange the overdraft and/or credit agreement, or add anything
to the terms
thereof.
To the
contrary,
after a
default has occurred and after the credit agreement has run
its
course,
the
parties
entered
into
another
type
of
agreement. Another type of
agreement that is not a credit agreement whatsoever, namely an
Acknowledgment of Debt & Power of
Attorney to sell farms in an
endeavour to reduce the overdraft amount."
[21]
The first
respondent consequently contended that the AOD/POA does not qualify
under
section 89(2)
or
91
(2) of the Act as a supplementary agreement.
According to the first respondent the AOD/POA in any event does not
constitute a transgression
of any of the provisions of
section 90(2)
of the Act.
[22]
It was further
contended in the first respondent's heads of argument, with reference
to case law, that it is lawful for a debtor,
after he/she is in
default, to consent to the selling of mortgaged property and that the
AOD/POA is therefore in principle valid
and lawful.
[23]
Mr Benade, who
appeared on behalf of the first respondent, similarly advanced
detailed submissions, both in his heads of argument
and during oral
argument, in support of the aforesaid contentions.
Determination
of
the
nature/status
of
the
AOD/POA
and
its
p
rovisions:
[24]
The Act does not
define a supplementary
agreement.
However, in
National
Credit
Re
g
ulator
v
Lewis
Stores
(
P
ty)
Ltd
2020 (2)
SA 390
(SCA) at paras
[31] -
[32]
the SCA
pronounced
as follows
with regard to a supplementary
agreement:
"[31]
Thirdly, a 'supplementary agreement' is not defined in the NCA. The
ordinary principles applicable to the interpretation
of legislation
find application in respect of the NCA. Moreover s 2 of the NCA
enjoins a court in interpreting the provisions
of the Act to
do so in a manner that gives effect to the purposes of the Act set
out in s 3 thereof. The over- riding purpose of
the Act set out in s
3 is '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
...
'.
[32]
The starting point in interpreting the legislation, of necessity, is
to give consideration to 'the language used in the light
of the
ordinary rules of grammar and syntax; the context in which the
provision appears, the apparent purpose to which it is directed
and
the material known to those responsible for its production'. The
Shorter
Oxford English Dictionary
defines
'supplementary' as 'of the nature of, forming, or serving as, a
supplement'.
'Supplement',
in turn, is defined as 'something added to supply a deficiency; an
auxiliary means, an aid;' or 'a part added to complete
a literary
work or any written account or document'. Giving the term its
ordinary English meaning in the context of ch 5 of the
NCA,
an
agreement can only, in my view
,
be
'supplementary' if it deals with the same subject matter as the
main agreement
ie the
regulation of the credit and repayment thereof.
Examples of
supplementary
agreements
that
spring
to
mind
would be documents
acknowledging
that no
representations had been made to the consumer, a waiver of statutory
rights or an acknowledgment of receipt of goods in
good order and
condition." (Own emphasis)
[25]
When considering
whether the AOD/POA constitutes a supplementary agreement, it is to
be noted that on the first respondent's own
case the AOD/POA did not
constitute an amendment of the existing credit agreements between the
applicants
and
the first respondent.
In this
regard clause
12 of
the
AOD/POA specifically determines that it does not constitute a
novation of any of the
"clients'
obligations to Absa in terms of the underpinning and main
agreements".
[26]
I have to
agree with the submission of Mr du Plessis that the aforesaid in
itself shows that the AOD/POA
"deals
with the same subject-matter as the main agreement, ie the regulation
of the credit and repayment thereof'.
See
Lewis
Stores
-
judgment,
supra, at para [32].
[27]
The aforesaid
is explicitly evident from the introduction to the AOD/POA, read with
paragraph 1 thereof.
The AOD/POA
deals with the same debt/credit as the underpinning agreements.
It furthermore
specifically deals with the repayment of the said debt/credit.
In this regard
paragraph 1.3 thereof determines that the principal debt
"is
currently due and payable"
but then
from a further reading of the AOD/POAit is evident that the payment
of the debt to the first
·
respondent
will occur as soon as the proceeds of the sale of the property
becomes available.
In this regard
clause 2.3 determines,
inter alia,
that the
"proceeds
of the sale shall be paid towards any outstanding balance due and
payable to Absa in terms of this agreemenf'.
Clause 5
of the AOD/POA also contains provisions regarding the repayment of
the debt/credit in that it makes provision for default
by the
applicants in which instance
"the
full outstanding principal debt mentioned in paragraph 1.1 above and
all other amounts owing by the clients in terms of
this
acknowledgment of debt, inclusive of costs, lease amounts already
paid, will become immediately due and payable without further
notice
to the clients".
[
28]
In addition to the aforesaid, the Supreme Court of Appeal in the
Lewis
Stores-
judgment,
supra,
specifically
mentioned documents
which
would contain a waiver of statutory rights as an example of a
supplementary agreement.
In
the present matter the AOD/POA specifically contains such a waiver
clause where the following is stated in clause 13 thereof:
"The
clients further acknowledge that this agreement is not subject to
applicability of the
National Credit Act."
[29
]
I consequently
find that the AOD/POA constitutes a supplementary agreement.
[30]
Section
89(2)(c)
of the Act determines as follows:
"89.
Unlawful
credit
agreements.
-
(1)
(2)
Subject to
subsections (3) and (4), a credit agreement is unlawful if -
(a)
(b)
(c)
it
is
a
supplementary
agreement
or
document
prohibited by
section 91(a).
.
..
"
[31]
Although the
aforesaid provision refers to
section 91(a)
of the Act, the Act has
since been amended to the effect that
section 91
now contains two
subsections, which determine as follows:
"91.
Prohibition of
unlawful provisions
in
credit
agreements and supplementary agreements.
–
(1)
A credit
provider must not directly or indirectly, by false pretences or with
the intent to defraud, offer, require or induce a
consumer to enter
into or sign a credit agreement that contains an unlawful provision
as contemplated in
section 90.
(2)
A credit
provider must not directly or indirectly require or induce a consumer
to enter into a supplementary agreement or sign any
document, that
contains a provision that would be unlawful if it were included in a
credit agreement."
[32]
With regard to
the wording
"directly
or indirectly require or induce"
used
in
section 91(2)
of the Act, the Constitutional Court held as follows
in
Universit
y
of
Stellenbosch
Le
g
al
Aid
Clinic
v
M
inister
of Justice and Correctional Services and Others
2016 (6) SA 596
(CC)
at para [117]:
"[117]
The
Flemix
respondents
also
submit
in
the
appeal
that
s 91(2)
prohibits only specific conduct, namely when a credit provider
'directly
or
indirectly require[s] or induce[s] a consumer to enter into a
supplementary agreement or sign any document, that contains a
provision that would be unlawful if it were included in a credit
agreement'. They contend that a
s 45
consent is a voluntary agreement
that does not involve any inducing or requiring by the credit
provider. But the facts patently
illustrate how this assertion is
wrong and that these consents are often induced and debtors are
frequently subject to outside
pressure.
The
wordin
g
of the
statute also sets a low threshold
-
'indirectly...
induce'. By informing a debtor about the
s 45
procedure and providing
them with the necessary documents, the credit provider has indirectly
induced the consumer to sign the
consent. This interpretation is
underscored by the purposes of the
National Credit Act, one
of which
is 'to prohibit certain unfair credit and credit marketing
practices'. Ands 91 itself is titled 'Prohibition of
unlawful provisions in
credit agreements and supplementary agreements'.
The
focus is on the unlawful
p
rovisions
rather than the credit
p
rovider's
conduct."
(Own emphasis)
See
also
National
Credit Re
g
ulator
v Golden Mile Loans CC
t/a Cash 4 U
NCT/158460/2020/57(1)
(24 September 2021) at para (56].
[33]
Therefore, what I now have to determine is whether the AOD/POA is a
supplementary agreement prohibited
by
section 91(2)
, as determined in
section 89(2)(c).
As previously recorded a supplementary agreement so
prohibited is in terms of
section 91(2)
one that contains a provision
that
"would
be
unlawful
if
it were included
in
a
credit agreement'.
[34]
Section 90
of
the Act determines that a credit agreement must not contain an
unlawful provision and then furthermore determines which provisions
in a credit agreement are unlawful.
[35]
I do not deem
it necessary to deal with each and every clause of the AOD/POA.
Section
90
(
2
62626">
2
)(
a
)
and
(
b
)
of the
Act:
[36]
In terms
of
section
90(2)(a)
and (b)
of the
Act a
provision
of
a credit agreement is unlawful,
inter
alia,
if -
"(a)
its general purpose
or effect is to -
(i)
defeat the
purposes
or
policies of this Act;
(ii)
deceive the
consumer; or (iii)
(b)
directly
or
indirectly
purports
to
-
(i)
waive or
deprive a consumer of a right set out in this Act;
(ii)
avoid a credit
provider's obligation or duty in terms of this Act;
(iii)
set aside or
override the effect of any provision of this Act;
(iv)
Authorise the
credit provider to -
(aa)
do anything that is
unlawful in terms of this Act; or
(bb)
fail to do anything that is required in terms of this Act."
[37]
As
already
indicated
earlier, clause 13
of
the
AOD/POA
determines as follows:
"The
clients
further
acknowledge
that
this
agreement
is
not
subject
to
applicability of the
National Credit Act."
[38]
In my view clause 13 of the AOD/POA, being a supplementary agreement,
constitutes the most flagrant
transgression of
section 90(2)(a)
and
(b) in that it completely excludes the applicability of the Act. It
clearly constitutes "a
provision that would be unlawful if it
were included in
a
credit agreement'
as prohibited
by
section 91(2)
of the Act. This brings the AOD/POA squarely within
the provisions of
section 89(2)(c).
Section
90
(
2
62626">
2
)(
h
)(i)
of the
Act:
[39]
Section
90(2)(h)(i)
of
the
Act
determines
that
a
provision
of
a credit
agreement is unlawful if –
"(h)
it expresses
an
acknowledgement by the consumer
that -
(i)
before the
agreement was made, no representations or warranties were made in
connection with the agreement by the credit provider
or a person on
behalf of the credit prov1.der; or...
"
[40]
Clause 9 of
the AOD/POA determines,
inter
alia,
that
"in
signing this acknowledgment of debt the clients cannot rely on any
warranties or representations made by or attributable
to Absa".
In my view
the last-mentioned provision has the exact same meaning and
implication as that which is prohibited by
section 90(2)(h)(i)
of the
Act.
Section
90
(
2
62626">
2
)(
k
)(
v
i)(
bb
)
of the
Act:
[41]
Clause 8.2 of
the AOD/POA determines
as follows:
"The
clients furthermore consent, as contemplated
in section
65J(2)(a)
of
the Magistrate Court Act
(sic),
to an
emoluments attachment order being issued from the court of the
district in which the clients' employer or debtors reside,
carries on
business or is employed .
..
to the extent
necessary to cover the judgment ... "
[42]
The reason for the
aforesaid clause would be that previously section 65J of the
Magistrates'
Courts Act
provided that only
"the
court of the district in which the employer of the judgment debtor
resides, carries on business or is employed, or, if
the judgment
debtor is employed by the State, in which the judgment debtor is
employed has jurisdiction to issue an emoluments
attachment order'.
The said
section has since been amended,
even prior to
the date of the conclusion
of the
AOD/POA.
However,
be that as it
may, section 90(2)(k)(vi)(bb) of the Act prohibits a provision in a
credit agreement which constitutes consent to
the
jurisdiction
of
"any
court seated outside the area of jurisdiction of
a
court
having concurrent jurisdiction and in which the consumer resides or
works or where the goods in question (if any) are ordinarily
kepf'.
See
NBD
Securitisation
(
Pt
y)
Ltd
v
Booi
2015 (5)
SA 450
(FB).
See also
Universi
ty
of
Stellenbosch Le
g
al
Aid
Clinic
,
supra,
at para
[116].
[43]
Clause
8.2
of the AOD/POA
consequently
also
constitutes
an
unlawful provision in terms of section 90(2)(k)(vi)(bb) of the Act.
Parate
executie and Section 90
(
2
)(j)
of the
Act:
[44]
Clause
2
of
the
AOD/POA
bears
the
heading
"POWER
OF ATTORNEY
REGARDING
IMMOVABLE
PROPERTY".
Clause 2.1
records that the first applicant is the registered owner of an
immovable property against which the first respondent
has registered
four covering bonds as security and the description of the property.
Clause 2.2 records similar details pertaining
to the second
applicant, but this clause has become irrelevant since it was deleted
after the second applicant declined to agree
to the selling of his
immovable property.
[45]
Although
a tedious
exercise,
I
deem
it necessary
to quote the
rest of clause 2:
"2.3
The clients
herewith grant and provide an irrevocable power of attorney in favour
of Absa, as represented by Ciraaj Ismail, or any
other nominated
employee of Absa, to sell the abovementioned immovable properties
together with any and all improvements thereupon
by way of public
auction, alternatively by a tender, alternatively by private sale,
for the highest possible price, which proceeds
of the sale shall be
paid towards any outstanding balance due and payable to Absa in terms
of this agreement.
2.4
Absa shall, at
its sole discretion, have the right to appoint any auctioneers of
their choice, to conduct a public auction, on such
terms and
conditions as Absa may deem fit and further shall have the right to
sign any agreement of sale, power of attorney or
any other
documentation on behalf of the clients which shall include, but not
be limited to any/all documentation that might be
necessary and
required by the South Africa Revenue Services and/or any other Local
Authority to give effect to the sale and transfer
of the immovable
property.
The
abovementioned power of attorney is irrevocable and shall not be
subject to any withdrawals for any reason whatsoever, and shall
be
binding and in force for a period of 5 (five) years calculated from
28 January 2019, alternatively until such time as the immovable
property is sold and transferred, alternatively until Absa cancels
this power of attorney in writing, or whichever event occurs
first.
2.5
The clients
herewith agree and consent to be liable for the reasonable
auctioneer's commission and any/all other reasonable disbursements
occasioned by the public auction which shall include, but not be
.
limited to,
advertising
costs and
valuation costs.
2.6
Absa shall
further be
ntitled, but
not compelled, to accept the highest offer that is reached at the
auction, alternatively thereafter and shall sign
all necessary
documentation
on behalf of
the clients in order to give effect to the sale and to transfer the
immovable property to the purchaser
.
2.7
Absa
shall further be entitled to request the elected auctioneer to
compile a valuation of the abovementioned immovable property,
prior
to the auction and the clients herewith undertake to provide their
full co-operation to the auctioneer and/or any potential
purchasers
and to grant them full access to the immovable property and to any
improvements thereon.
2.8
Absa shall
further be entitled, at its sole discretion, to determine and compile
the terms and conditions of sale in terms whereof
the immovable
property shall be sold.
2.9
The parties
further agree that Absa shall, after the sale of the abovementioned
immovable property, nominate and appoint attorneys,
of its choice, to
attend to transfer the property to the purchaser.
2.10
The parties further agree Absa shall be entitled to take any and all
actions necessary to conclude and execute an agreement
of sale of the
abovementioned immovable property, with a purchaser, which rights
shall also include, but not be limited to, the
right to cancel an
agreement of sale, should the purchaser default in any obligations in
terms of the agreements of sale, alternatively
the right to grant the
purchaser any extensions for fulfilment of his/her/its obligations in
terms of the agreement of sale."
[46]
The aforesaid
clause 2 entitles the first respondent to resort to
parate
executie,
which
means that the first respondent, as creditor, is authorised to sell
the immovable property without having to go through the
court
processes.
[47]
It is trite
that a
parate
executie
clause
in a mortgage bond permitting the bondholder to execute without
recourse to the court by taking possession of the property
and
selling it, is void. See
Bock
v Duburoro Investments
(Pty)
Ltd
2004 (2) SA 242
(SCA)
at para [7].
[48]
Mr Benade
submitted that it is lawful for a debtor, after he/she fell in
default, to consent to the mortgagee selling the immovable
property,
provided a fair price is realised or agreed upon.
In this regard
he firstly relied on the judgment in
lscor
Housing Utility
Company
v Chief Registrar of Deeds
1971 (1)
SA 613
(T) at 616E and 617H:
"The
second observation to be made is that where a
parate executie
power is granted, whether in respect of movables or immovables,
and the parties were to agree after the debtor be in default that
the
creditor may proceed to realise that bonded property, he no longer
does so by the virtue of the original power, but virtue
of the fresh
agreement after the debtor's default. The objection then to
exercising a
parate executie
has fallen away. See
Israel v
Solomon,
1910 T.P.D. 1183
at p. 1186....
I
think the
principle is clear, that if there is consent by the debtor
after he is in
default there can be no objection in law to the mortgagee selling the
property mortgaged provided a fair price is
realised
or agreed
upon."
[49]
Mr Benade
furthermore contended that the aforesaid legal position was confirmed
by the Supreme Court of Appeal in the
Bock-judgment
,
supra,
at
para [7], with specific reference to the aforesaid
lscor-judgment
:
"Nevertheless,
after default the mortgagor may grant the bondholder the necessary
authority to realise the bonded property."
[50]
In addition to remark
that the
Bock-judgment
actually dealt with pledged shares and that the abovementioned remark
by the SCA may
very
well
be
considered
to
have
been
made
obiter,
it
is
necessary to be mindful of
the fact that both the aforesaid judgments pre-dated the commencement
of the Act.
This fact was
also duly pointed out by Mr du Plessis. Furthermore, the SCA stated
the following in the very same paragraph [7]:
"It
does not matter whether the goods are immovable or movable: in the
latter instance, to perfect the security, the court's
imprimatur is
required."
[51]
Mr Benade
furthermore submitted in his heads of argument that the aforesaid
"position
was
confirmed'
in
Smit
v Ori
g
ize
166
Strand
Real Estate
(Pty)
Ltd
(710/19)
[2020] ZASCA
132
(19 October 2020) at para [28]:
"These
decisions, stretching back more than 125 years, set out the
development of our law and the establishment of the principle
that
the power of attorney given as security for a debt owing, is
irrevocable, at least for as long as the debt remains unpaid."
[52]
I cannot agree
with Mr Benade that the aforesaid judgment confirmed the position
regarding the lawfulness of an agreement of
parate
executie
post
default.
The
issue in that appeal related to
"the
interpretation, enforcement
and
revoeability of two powers
of
attorney''
and
in circumstances different to the present circumstances.
The basis of
the attack on those two powers of attorney was also completely
different from the present matter. Furthermore,
and most
importantly,
the Act was
not applicable in that matter.
[53]
During
my research for purposes of this judgment I came across the judgment
in
Business
Partners Ltd v Mahamba
[2019] JOL
41220
(ECG).
Although the
facts and circumstances in that matter are in some respects similar
to the present matter, there are also crucial differences,
which I
will point out shortly. I deem is necessary to quote the following
extracts from the said judgment:
"[24]
It is clear
from the background presented above that after the respondent had
defaulted, summons which sought,
inter
alia,
to
declare the property executable were issued; that constituted due
process of law in accordance with which the respondent was
availed
the opportunity to seek the court's assistance to protect her
interests. She spurned that opportunity.
[25]
The
respondent
instead
opted
for
an
out
of
court
settlement
whereby she voluntarily concluded the agreement to pay the debt and
sign the power of attorney in terms of which she
voluntarily agreed
that the appellant could sell the property, in the event of her once
again being in default. ..
.
[27]
In
these
circumstances,
it
is
hard
to
fathom
how
the
court a
quo
arrived at
the conclusion it did namely, that the sale of the property by
private treaty had been without due process...
.
[30]
Here is the
conclusion of the matter. Upon the principal debtor and the
respondent being indebted to the appellant and not liquidating
such
indebtedness
the
appellant
instituted
an
action
before
the
court a
quo
seeking,
inter alia,
an order
declaring the property executable. In that way, the respondent's
right to access to courts and entitlement to solicit the
court's
assistance was given effect to. The respondent elected not to avail
herself
of
such assistance,
but instead
consented
to
the appellant selling the property
when
she
was
in
default
of
paying
in terms
of
the
agreement
to pay debt. In these
circumstances, the sale was lawful, having been consented to by the
respondent. The court
a quo
was
misguided in deciding to the contrary."
[54]
In the
aforesaid judgment the original loan agreements were concluded
between a close corporation, represented by the respondent
in her
capacity as sole member,
and the
appellant. In terms of the loan agreements, the principal debtor,
being the close corporation, had to provide security in
the form of a
surety bond over the respondent's property.
Therefore,
again very importantly, the Act was not at all applicable in those
circumstances.
The further
difference lies therein that in that matter the court specifically
found that the agreement pertaining to the sale of
the property
followed after due court process with the result that
"the
respondent's right to access to courts and entitlement to solicit the
court's assistance was given effect to".
[55]
In terms of
section 90(2)(j) of the Act a provision in a credit agreement is
unlawful if -
"it
purports to appoint the credit provider, or any employee or agent of
the credit provider, as an agent of the consumer for
any purpose
other than those contemplated in section 102 or deem such an
appointment to have been made."
The
exception referred to, being an agent in terms of section 102, is not
relevant to the present matter.
[56]
In
Guide
to the
National Credit Act,
JW
Scholtz
et al,
My
Lexis
Nexis,
at para
9.3.3, footnote 59, the following is stated with reference to
section
90(2)0)
of the Act:
"This
is to prevent a person hitherto unknown to the debtor from becoming
his agent (merely because of a provision in the contract),
whereas
that person has acted as the creditor's agent for all practical
purposes
.
Were such a
clause allowed, the consumer would be responsible for the acts and
omissions
of
the agent with no right of action against the credit provider."
[57]
In the article
Pled
g
e
of
Mo
vables
under the National Credit
Act: Secured
Loans
,
Pawn
Transactions and
Summa
ry
Execution
Clauses
,
Reghardt
Britz, (2013) 25 SA NERC LJ 555 -
577 the
learned author considered,
inter a/ia,
the
lawfulness, or not, of a summary execution clause when included in
secured loans over movables which fall within the ambit of
the Act.
However, in my view the reasoning behind the learned author's
conclusion is
mutatis
mutandis
applicable
to a credit agreement pertaining to immovable property.
I respectfully
agree with the following conclusion at p. 570:
"The
fact that the NGA refers to an 'agent [... ] for any purpose'
(except for
one exception)
indicates to
my mind that the legislature probably had in mind agency in its
widest possible meaning, unavoidably including a
contract of
mandate in terms of which the creditor is instructed (or authorised)
to sell the debtor's property on his behalf -
in other
words, the summary execution clause
.
Therefore, a
summary execution clause qualifies as an unlawful provision for the
purposes of the Act and my no longer be included
in secured loans."
[58]
In my view clauses 2.3 - 2.10 of the AOD/POA fall squarely within the
prohibition contained in
section 90(2)0)
of the Act and are therefore
unlawful provisions of a credit agreement and are consequently also
prohibited for purposes of a supplementary
agreement, as determined
by
section 91(2)
of the Act.
Section
90(2)(k)(ii)
of the Act:
[59]
Section 90(2)(k)(ii)
of the Act determines
as follows:
"A
provision of a credit agreement is unlawful if it expresses, on
behalf of the consumer -
(i)
(ii)
a grant of a
power of attorney in advance to the credit provider in respect of any
matter related to the granting of credit in terms
of this Act.
..
.
"
[60)
"In advance" is defined in
DICTIONARY.COM
.
as "beforehand, ahead of time". The
Collins
English Dictionary
states that: "If you do
something in advance, you do it before a particular date or event."
Synonyms listed for "in
advance" are,
inter alia,
beforehand, ahead.
[61]
Although the applicants were in default at the time when the AOD/POA
was signed, the
·
POA
contained therein related to future events and were therefore granted
in advance, contrary to the provisions of
Section 90(2)(k)(ii)
of the
Act.
[62]
The Act
prescribes very specific requirements in order for creditors to
enforce credit agreements.
When a debtor
is in default under a credit agreement and a creditor wants to
enforce the agreement, the creditor has to follow the
steps set out
in part C of chapter 6 of the Act, which consists of sections 129 -
133. The
practical effect of the
.
power of
attorney which the first respondent obtained in advance from the
applicants is that the first respondent is enforcing the
debt without
having launched judicial enforcement proceedings.
It therefore
has the direct and/or indirect effect of allowing the first
respondent to bypass the debt enforcement requirements
of the Act,
which is again contrary to the provisions of Section 90(2)(a) and (b)
already dealt with above.
[63]
In addition to
the aforesaid, clause 1.1 of the AOD/POA determines that the
applicants
"acknowledge,
unconditionally, that they are truly and lawfully indebted towards
Absa in the following amounts
...
" and clause 1.3 determines that the applicants
"further
unconditionally confirm that the principal debt is currently due and
payable".
[64]
The aforesaid
"unconditional" acknowledgment and confirmation must be
considered against the background that the AOD/POA
was entered into
without the applicants having been advised by means of a section
129-notice of their rights in terms of section
129(1)(a), being:
"129(1)
Required
procedures before debt enforcement.
-If
the consumer is in default under a credit agreement, the credit
provider-
(a)
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 plant to bring the payments under
the agreement up to date
"
In
this regard one has to be mindful of the fact that the section
129-notice pertaining to the original credit agreement was only
sent
out on 24 February 2021, hence, after the conclusion of the
AOD/POA.
[65]
By having
"unconditionally" acknowledged and confirmed their
indebtedness, the applicants not only waived their rights
set out in
the Act, but also did so without having been properly advised by the
first respondent of their rights, which is also
prohibited by Section
90(2)(a) and (b) of the Act.
[66]
Clauses 1.1,
1
.
3
and 2.3 to 2.10 of the AOD/POA would therefore have been unlawful if
it had been contained in a credit agreement and consequently
also
constitutes a contravention of section 91(2) of the Act..
Conse
q
uences
of
the
aforesaid
unlawful
p
rovisions
in
the
su
pp
lementa
ry
a
g
reement
(
the
AOD/POA
)
:
[67]
In my view the AOD/POA consequently constitutes a supplementary
agreement which contains unlawful
provisions as prohibited by section
91(2) of the Act and therefore constitutes an unlawful agreement in
terms of section 89(2)(c)
of the Act.
[68]
In terms of section
89(5) I am to
"make
a
just
and equitable order including but not limited to an order that the
credit agreement is void
as
from the
date the agreement
was
entered into."
[69]
The amendment of section 89(5) of the Act to its current terms,
virtually reinstated the rules
of the common law.
This includes
the common law right to restitution.
See
Sedwin
Investments
(
P
ty)
Ltd
v
Datnow
(1819/2017)
[2017]
ZAECPEHC
40
(24 August
2017) at para [23].
In the present
matter no amount of money was transferred to the applicants as a
result of the conclusion of the AOD/POA.
The first
respondent did also not seek in its counterclaim an alternative claim
for payment of costs and other expenses to date
as a result of the
execution of the AOD/POA.
[70]
In the circumstances I considered it just and equitable to declare
the AOD/POA void as from the
date the agreement was entered into.
This had the consequential result that I also had to grant the
further relief which was sought
by the applicants in the notice of
motion and also had to dismiss the counter application.
Consideration
of
further
le
g
islation
and
relevant
a
pp
licable
le
g
al
p
rinci
p
les:
[71]
In so far as I
may have erred in coming to the conclusion that the AOD/POA
constitutes a supplementary agreement prohibited by section
91(2) of
the Act and therefore constitutes an unlawful agreement in terms of
section 89(2)(c) of the Act, I deem it necessary to
consider the
alternative basis of the applicants' case, being that the AOD/POA
firstly constitutes a credit agreement and secondly
contains unlawful
provisions as prohibited by section 90 of the Act.
[72]
Section 8 of
the Act provides for the classification of credit agreements.
Secti
o
.
n
.
8(4)(f)
provides for a
catch-all category of credit agreements which fall outside the other
definitions in section 8 and determines as follows:
"(4)
An agreement, irrespective of its form but not including an agreement
contemplated in sub-section (:2) constitutes a credit
transaction if
it is
(a)
(b)
(c)
(d)
·
(e)
(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."
[73]
On a literal interpretation of the AOD/POA it meets the aforesaid
definition of a credit transaction
since payment of the amount owed
is deferred until the sale of the property and interest, charges and
fees are payable.
[74]
In
Ratlou
v Man Fin
.
ancial
Services SA
(Pty)
Ltd
2019 (5) SA 117
(SCA)
it was confirmed at para [24] that a
"purposive
approach in determining whether the NGA was applicable to settlement
agreements"
should
be followed.
The SCA
further held at para [19] as follows:
"If
the
underlying causa did
not fall
within
the
parameters
of the NCA, then its
compromise in terms of the settlement agreement cannot logically
result in the agreement being converted to
one that does."
It
furthermore
concluded as follows at para [26]:
"There
can only be one conclusion: that the NCA was not designed to regulate
settlement agreements where the underlying agreements,
or cause,
would not have been considered by the Act."
[75]
It is common
cause between the parties that the "underpinning and main
agreements" which the applicants originally concluded
with the
first respondent constitute credit agreements which were and still
are at all times regulated by the Act.
[76]
I agree with
the contention by Mr du Plessis that it could never have been the
legislator's intention to allow a credit provider
who
entered into a credit
agreement with a debtor to escape its obligations in terms of the Act
by simply entering into a settlement
agreement; not even after
default by the debtor.
[77]
Consequently
and in so far as I may have erred in coming to the conclusion that
the AOD/POA constitutes a supplementary agreement,
I found in the
alternative that it constitutes a credit agreement.
Conse
q
uences
of constitutin
g
a
credit a
g
reement:
[78]
Earlier in this judgment when I dealt with the AOD/POA on the basis
that it constitutes a supplementary
agreement, I dealt with the
respective provision
'.
contained
therein
which
would have been lawful if they
:
were included
in a. credit
agreement,
as
provided in section 91:(2)1
.
read,with
section 90 of the Act. In view of my alternative finding that the
document constitutes a credit agreement,
my
·
earlier
findings .with
,
regard
to the
provisions which constitute unlawful provisions in
.
terms
of section 90 of the Act, are
mutatis
mutandis:
applicable
when the
·
AOD/POA
is considered as being a credit agreement.
[79]
There
is
one
distinction
.
though.
When
I
considered
the AOD/POA on
the basis of being a supplementary agreement, I found it to bean
unlawful agreement in terms of section 89(2)(c),
read with section
91(2)
.
of
the Act .When
considered on
the basis of constituting a credit
agreement, the
presence of
the unlawful provisions therein constitutes a transgression of
sections 90(1) and (2) of the
Act.
[80]
Section
90(3) and (4) of the Act determine as follows:
"(3)
In any credit agreement, a provision that is unlawful in terms of
this section is void as from the date
that the provision purported to
take effect.
(4)
In any matter
before it respecting a credit agreement that contains a provision
contemplated
in sub-section
(2) the' court must –
(a)
sever that
unlawful provision from the
-
agreement,
or alter it to the extent required to render it lawful, if it is
reasonable to do so having regard to the agreement as
a whole; or
(b)
declare the
entire agreement unlawful as from the date that
the agreement,
or amended agreement, took effect, and make any further order that is
just and reasonable in the circumstances to
give effect to the
principles of section 89(5) with respect to that unlawful provision,
or entire agreement, as the case may be."
[81]
The following useful discussion regarding the approach a Court should
follow when considering
an appropriate order in terms of section
90(4) of the Act is contained in
Guide to the
National
Credit Act,
supra
,
at para 9.3.4.2:
"A
court will sever an unlawful provision from the contract if possible
and enforce the remainder of the contract, unless the
severance will
leave the parties with a contract substantially different from the
one they intended. More often than not, this
will be the result when
several contractual terms fall foul of the dictates of public policy
with the result that the whole contract
becomes tainted. It is
submitted that this should also be the courts' approach when they are
called upon to apply
section 90(4)
of the
National Credit Act."
See
also
Sasfin
(
Pty
)
Ltd
v Beukes
1989
(1) SA 1 (A).
[82)
In the present matter
most of the essential provisions contained in
the
AOD/POA
are
unlawful.
Should
the
unlawful
provisions be
severed from
the
r
e
'
st
of
the
AOD/POA,
the
su
b
stance
of
the character AOD/POA
will fall away or be eliminated to the extent that the remaining
provisions will render the AOD/POA nonsensical
and unenforceable.
The
substantial character of the AOD/POA will be changed to the extent
that the parties would not have entered into the agreement
without
the said provisions.
The number,
nature and gravity of the unlawful provisions, in my view, in any
event have the result that the whole agreement is
tainted.
[83]
It was consequently in my view just and equitable to declare the
entire AOD/POA void as from
the date that the agreement was entered
into also wh
e
n
considered
on the basis of being
a credit agreement. Also on this
basis it had the
consequential result that I also had to grant the further relief
which was sought by the applicants in the notice
of motion and also
,
had to dismiss
the counter application.
Costs:
[84]
In terms of the notice of motion the applicants requested that the
first respondent be ordered
to pay the applicants' costs on the scale
as between attorney and client.
[85]
In his argument Mr du
Plessis
pointed
out
;that
.the
applicants forewarned
.
the first
respondent
.
of
the
unlawfulness
of the AOD/POA
and afforded the first responden
t
th
e
-
opportunity to
refrain
from
the
execution
thereof which it refused
to
do.
This
was done by means of a
letter of demand; dated 30 September 2021, attached to the founding
affidavit as annexure "JS15".
The
respondent's
refusal
to accede
to the demand
is contained
in a letter
from
the
first
re
s
p
o
ndent’s
attorney
of
record dated
4 October
2021, attached to the
founding
affidavit as annexure "JS16".
[86]
It is trite
that the awarding of costs is in the discretion of the court, which
discretion should be exercised judicially.
The general
rule is that costs follow the outcome, which costs, unless expressly
stated differently, are costs on a party and party
scale.
[87]
The present
matter required the interpretation of the Act.
In this regard
one has to be mindful of the remarks regarding the drafting of the
Act as
.
contained
.
in previous
judgments.
A
compilation of some of those remarks is contained in
Guide
to
the
National Credit Act,
supra
,
at para
2.1, footnote 19:
"In
Nedbank
v
The
National
Credit
Regulator
2011 (3)
SA 581
(SCA), Malan JA said (par 2): "Unfortunately the NCA
cannot be described as the 'best drafted Act of Parliament which was
ever passed', nor can it be said to have been blessed with the
'draftmanship of a Chalmers'. Numerous drafting errors, untidy
expressions
and inconsistencies make its interpretation a
particularly trying exercise. Indeed, these appeals demonstrate the
numerous disputes
that have arisen around the construction
of
the
NCA."
See
also
Firstrand
Bank
Ltd
v
Collett
2010
(6) SA 351
(ECG)
pars
6
and
17;
.
and
Mercedes
Benz
Financial Services South Africa (Pty) Ltd v Dunga
2011
(1) SA 374
(WCC) par 17, where the court described the Act as
"notorious for its lack of clarity". In
Renier
Ne/
Inc
v
Cash
on
Demand
(KZN)
(Pty)
Ltd
2011
(5) SA 239
(GSJ) Willis J said that it had "become a notorious
fact that
cases
requiring
the interpretation of the
National Credit Act result
in a scarcely
muffled cry of _exasperation resounding from the leathered benches of
the judiciary" (par 15) and referred to
the "widespread
lack of clarity and certainty which various judicial colleagues
around the country have experienced when trying
to interpret the NCA.
If judges have such difficulty, how much more so among the men and
women of business?" (par 27).
In
National
Credit
Regulator
v
Opperman
2013
(2) SA 1
(CC)
the
Constitutional
Court
laments
the
"dismal
drafting"
of
the
Act.
See also
Edwards v
Firstrand Bank Ltd t/a Wesbank
2017
(1) SA 316
(SCA) where the court states at par 1 that "It is
well known that the draughtsmanship of the
National Credit Act
is
far from
being a model of elegance."
[88]
In my view it
is consequently to be expected that different legally trained
individuals may hold different views regarding the interpretation
of
specific sections of the Act.
[89]
Therefore, in
the circumstances and in the exercise of my discretion,
did not
consider a punitive order of costs to be appropriate.
[90]
There is,
however, no reason why the costs should not follow the outcome of the
application.
Order:
[91]
I consequently
made the order recorded at the beginning of the judgment.
C.VAN
ZYL
On
behalf of the applicants:
Mr. H.S.L du Plessis
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN
On
behalf the of the first respondent:
Adv. H.J Benade
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN