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[2011] ZASCA 78
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Collett v Firstrand Bank Ltd and Another (2011 (4) SA 508 (SCA); [2011] 3 All SA 585 (SCA)) [2011] ZASCA 78; 766/2010 (27 May 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
766/2010
In
the matter between:
SALLY
ANN COLLETT
Appellant
and
FIRSTRAND
BANK LTD
Respondent
NATIONAL
CREDIT REGULATOR
Amicus
Curiae
Neutral citation:
Collett v Firstrand Bank
(766/2010)
[2011] ZASCA 78
(27 May 2011)
Coram:
Mpati P, Brand, Maya, Malan and Tshiqi JJA
Heard:
4 May 2011
Delivered:
27 May 2011
Summary:
Debt review in terms of s 86 of
National Credit
Act 34 of 2005
– right of credit provider to terminate review
under
s 86(10)
– reading in ‘or High Court’ in
s
86(11)
ORDER
On
appeal from:
Eastern Cape High Court,
Grahamstown (Eksteen J sitting as court of first instance):
The
appeal is dismissed.
JUDGMENT
MALAN JA (Mpati P, Brand,
Maya and Tshiqi JJA concurring)
[1]
This appeal concerns the construction of
s 86(10)
and (11) and
s 87
of the
National Credit Act 34 of 2005
. Eksteen J sitting in the
Eastern Cape High Court, Grahamstown, granted summary judgment
against the appellant in an amount of
R677 254,92 with interest
and costs and made an order declaring certain immovable property
executable. The action was based
on a mortgage bond hypothecating the
property declared executable. A ‘mortgage agreement’ is a
‘credit transaction’
and the NCA applies to it.
[1]
[2]
The appellant was in default with her repayments under the bond and
by reason of her
failure to pay any or all of the agreed instalments
the whole of the outstanding amount became due. On 4 January 2010 she
applied
for debt review in terms of
s 86(1).
The application was made
to Gerhard Stoltz Debt Counsellors and the respondent was notified of
it the same day. On 15 February
2010 Stoltz advised the respondent
that the application was successful and that the debt obligations of
the appellant were in the
process of being restructured. A debt
restructuring proposal was circulated to all the appellant’s
credit providers, including
the respondent. None of the credit
providers accepted the proposal. On 29 March 2010 Stoltz referred the
matter to the East London
Magistrate’s Court in terms of
s
86(8)
for an order that the appellant be declared over-indebted; that
her debt commitments be re-arranged; that the credit agreements
of
those credit providers who terminated their reviews under
s 86(10)
be
resumed and be included in the debt review; and for costs.
[3]
After the matter had been referred to the Magistrate’s Court
and on 7 April
2010, that is more than 60 days after the appellant’s
application, the respondent terminated the debt review in so far as
it related to the mortgage bond. It did so pursuant to the provisions
of
s 86(10).
The hearing before the Magistrate’s Court in terms
of
s 87
, set down for 10 June 2010, was postponed to 12 August 2010.
Summons was issued on 21 June 2010 and served on the appellant on 1
July 2010.
[4]
Section 86
sets out the procedure to be followed by the debt
counsellor on receipt of a consumer’s application for debt
review.
Section 87
concerns the re-arrangement of a consumer’s
obligations and the powers of the Magistrate’s Court to which
the matter
has been referred.
Sections 86
and
87
are contained in
Part D
of Chapter 4 of the NCA, which is entitled ‘Over-indebtedness
and reckless credit’. The procedure when applying for
debt
review is contained in
s 86
and has been described elsewhere.
[2]
The sections referred to read as follows:
’
86.
(10) If a consumer is in default under a credit agreement
that is being reviewed in terms of this section, the credit
provider
in respect of that credit agreement may give notice to terminate the
review in the prescribed manner to—
(a)
the consumer;
(b)
the debt counsellor; and
(c)
the National Credit Regulator,
at any time at least 60
business days after the date on which the consumer applied for the
debt review.
(11) If a
credit provider who has given notice to terminate a review as
contemplated in subsection (10) proceeds to enforce
that agreement in
terms of
Part C
of Chapter 6, the Magistrate’s Court hearing
the matter may order that the debt review resume on any conditions
the court
considers to be just in the circumstances.
87.
Magistrate’s
Court may re-arrange consumer’s obligations.
—(1) If
a debt counsellor makes a proposal to the Magistrate’s Court in
terms of
section 86(8)(b)
, or a consumer applies to the Magistrate’s
Court in terms of
section 86(9)
, the Magistrate’s Court must
conduct a hearing and, having regard to the proposal and information
before it and the consumer’s
financial means, prospects and
obligations, may—
(a)
reject the recommendation or application as the case may be; or
(b)
make—
(i)
an order declaring any credit agreement to be reckless, and an order
contemplated
in
section 83(2)
or (3), if the Magistrate’s Court
concludes that the agreement is reckless;
(ii)
an order re-arranging the consumer’s obligations in any manner
contemplated
in
section 86(7)(c)(ii)
; or
(iii)
both orders contemplated in subparagraph (i) and (ii).
(2) The
National Credit Regulator may not intervene before the Magistrate’s
Court in a matter referred to it in
terms of this section.’
Section
88
deals with the effect of debt review or a re-arrangement order or
agreement.
[3]
[5]
In her affidavit opposing the application for summary judgment the
appellant did not
deal with the merits of the respondent’s case
but only questioned the respondent’s right to have instituted
action.
She stated:
‘
As
I applied for Debt Review prior to the Applicant issuing Summons
against me, and furthermore, as my Debt Counsellor has referred
my
application to the Magistrate’s Court prior to the Plaintiff’s
Summons and within the prescribed 60 business day
period, it should
be clear the Plaintiff did not have the right to issue Summons
against me.’
[6]
The question to be decided is therefore whether a credit provider is
entitled to terminate
a debt review in terms of
s 86(10)
after the
debt counsellor has referred the matter to the Magistrate’s
Court for an order envisaged by
s 86(7)(c)
(and
s 87(1)(b))
and while
the hearing in terms of
s 87
is still pending. In the court below
Eksteen J held in the affirmative. The conclusion of the court below
is supported by several
provincial division judgments.
[4]
However, as has become typical of the jurisprudence developing around
the NCA, there is a host of decisions that have taken a different
view.
[5]
It is not possible to
do justice to all the considerations advanced in these conflicting
decisions.
[6]
They deal with the
approach to take when construing the NCA; the question when the
entitlement to terminate the debt review arises
and ends; and the
meaning of
s 86(11)
, in particular, which court may order a
resumption of the debt review which was terminated.
[7]
The view that the credit provider may not terminate the debt review
after referral
to the Magistrate’s Court is perhaps best
articulated by Griesel J speaking for the full court in
Wesbank
a division of Firstrand Bank Ltd v Papier (with the NCR as Amicus
Curiae).
[7]
He, quite correctly, pursued a contextual approach to the
legislation.
[8]
He
referred to
Part D
of Chapter 4 of the NCA as introducing the
concepts of ‘over-indebtedness and reckless credit’ and
stated that, ‘[t]he
object of this part of the Act is to
provide protection and assistance to an over-indebted consumer in an
environment that encourages
participation in good faith by both
parties. The mechanisms provided by the Act are contained in
ss 85
-
88
and consist of debt review, on the one hand, and debt re-arrangement,
on the other.’
[9]
Proceeding on this basis he held that
s 86(10)
dealt with one aspect
of the elaborate process as described in the heading to
s 86
;
‘Application for debt review’. This process commences
with an application by the consumer in terms of
s 86(1)
, followed by
the notification of the application by the debt counsellor to all
credit providers and credit bureaux.
[10]
The consumer and each credit provider must then, as is required by
s
86(5)
, comply with the requests of the debt counsellor and
participate in the debt review in good faith.
[8]
The debt counsellor must within 30 days determine whether the
consumer ‘appears
to be over-indebted’.
[11]
If he determines that the consumer is not over-indebted he must
reject the application
[12]
and
advise the consumer of his right to approach the court directly in
terms of
s 86(9)
within 20 business days.
[13]
Where the debt counsellor determines that the consumer appears to be
over-indebted he must
[14]
‘issue a proposal’ recommending that the Magistrate’s
Court make any of the orders provided for by
s 86(7)(c)
(and
s
87(1)(b)).
Griesel J concluded that a referral in terms of
s 86(7)(c)
sets in motion a ’debt re-arrangement by the court’ as
opposed to a ‘voluntary re-arrangement’ in terms
of
s
86(8)(a).
Because neither the NCA nor the regulations contain any
time period within which the referral to court must be made he opined
that,
having regard to the context, the answer became clear:
‘
The
process of “debt review” requires of the debt counsellor
to determine, within 30 days, whether or not a consumer
is
over-indebted. If not, the debt counsellor must advise the consumer
of his or her right “to approach the court”
within a
further 20 business days for the necessary order. This leads me to
the conclusion that the period of 60 days referred
to in
s 86(10)
was
introduced with the abovementioned time frame in mind so as to allow
the consumer and/or debt counsellor sufficient time to
“approach
the court” for the necessary relief in terms of
s 87.
[15]
…
Given
the fact that a consumer has a period of 50 business days, calculated
from the date of his application to the debt counsellor,
within which
to “approach” the magistrate’s court for an order
in terms of
s 87
, it could never have been contemplated that the rest
of the process – including a hearing before the magistrate and
a re-arrangement
order in terms of
s 87
– should all be
finalised within the remaining ten business days.
[16]
…
On
the interpretation advanced on behalf of the plaintiff herein, the
position is quite simple: the credit provider would be entitled,
in
each case where a period of 60 days has elapsed without a
re-arrangement order in terms of
s 87
having been made, unilaterally
“to derail the entire debt review process”.’
[17]
[9]
To my mind this is too limited an approach.
Section 86(10)
must be
construed in view of the other provisions of the NCA, particularly
s
86(11).
An application by a consumer to apply for debt review, be
declared over-indebted and have his debts arising from credit
agreements
re-scheduled are novel concepts introduced by the NCA.
[18]
Their purpose is to assist not only consumers who are
over-indebted,
[19]
but also
those who find themselves in ‘strained’
circumstances.
[20]
A consumer
who finds himself in either of these circumstances may apply for debt
review in terms of
s 86(1).
He may do so whether or not he is in
arrears under any particular credit agreement. Where the consumer is
not in default of any
of his obligations, the credit provider is
unable to terminate the process because
s 86(10)
gives the right to
terminate the debt review only where the consumer is in default. In
such a case the credit provider must await
the hearing in terms of
s
87.
Nor can the credit provider proceed to enforce the credit
agreement because the consumer is not in default. Where the consumer,
however, is in default the credit provider is entitled to enforce
that credit agreement provided the consumer has not made application
for debt review pursuant to
s 86(1)
and the credit provider has
complied with the requirements of
s 129
and
130
. In terms of
s 86(2)
an application for debt review concerning a particular credit
agreement may not be made if the credit provider has ‘proceeded
to take the steps contemplated in
section 129
to enforce that
agreement’.
[21]
[10]
The purpose of the debt review is not to relieve the consumer of his
obligations but to achieve
either a voluntary debt
re-arrangement
[22]
or a
debt re-arrangement by the Magistrate’s Court.
[23]
The purposes of the NCA include the promotion of responsibility in
the credit market by encouraging responsible borrowing, avoidance
of
over-indebtedness and fulfilment of financial obligations by
consumers’.
[24]
Its
approach to over-indebtedness is ‘based on the principle of
satisfaction of all responsible consumer obligations’.
[25]
By providing for a consistent and harmonised system of debt
restructuring the NCA ‘places priority on the eventual
satisfaction
of all responsible consumer obligations’.
[26]
It follows that the NCA serves not only the interest of consumers:
its construction calls for a careful balancing of all relevant
interests.
[27]
[11]
The debt counsellor is charged to determine whether the consumer
‘appears’ to be
over-indebted,
[28]
and must issue a proposal recommending any or all of the orders set
out in
s 86(7)(c).
The debt counsellor’s involvement in the
debt review is no end in itself but part of an on-going process
culminating in the
order of the Magistrate’s Court under
s 87
(or a voluntary re-arrangement under
ss 86(7)(b)
and
86
(8)(a)). Only
then can the debt review be said to be complete. The role of the debt
counsellor does not end with his referral of
the matter to the
Magistrate’s Court. His ‘proposal’ takes the form
of an application governed by the Rules of
the Magistrates’
Court and he is required to be present in court, participate in the
hearing and assist the court by way
of furnishing evidence, making
submissions or answering questions.
[29]
It is no answer to contend that contextually
s 86(10)
forms part of
s
86
and thus part of the ‘debt review’ as opposed to the
‘hearing’ before the Magistrate’s Court in terms
of
s 87.
The words in
s 86(10)
‘that is being reviewed in terms of
this section’ rather emphasise that it is not a debt review
pursuant to
ss 83(3)(b)
or
85
(a) and (b). Entirely different
considerations apply to the review under these sections: they are not
necessarily initiated by the
consumer and the court has a discretion
whether to proceed under those provisions. The credit provider is not
entitled to terminate
either of them. Under
ss 86
and
87
there
is only one unified process the purpose of which is the restructuring
of the consumer’s debts by amending the terms
of the credit
transaction between the parties. If the parties agree, they may amend
the agreement in terms of
s 116
or file a consent order as envisaged
by
s 86(8)(a).
If they do not, the hearing envisaged by
s 87
takes
place. It follows that I am in agreement with the conclusion reached
in the court below:
[30]
‘
I
am unable to find anything in the structure of
section 86
or of the
Act in its entirety which is indicative of an intention on the part
of the legislature to limit the right of a credit
provider under
section 86(10)
to the process prior to the reference to the
Magistrate’s Court. On the contrary I consider that the credit
provider’s
rights to give notice in terms of
section 86(10)
continues until the Magistrate’s Court has made an order as
envisaged in
section 87.
’
[12]
In the
Papier
decision
[31]
the court held
that the right of a credit provider to terminate the debt review is
forfeited once the debt counsellor brings an
application to the
Magistrate’s Court in terms of
ss 86(7)
and
87
. The argument
was that because the debt counsellor has a period of 30 days within
which to determine whether the consumer appears
to be over-indebted,
and the consumer a further 20 days, in the event of a finding that he
is not over-indebted, to apply directly
to the Magistrate’s
Court in terms of
s 86(9)
for an order contemplated in
s 86(7)(c)
,
the 60 day period was introduced to allow either the debt counsellor
or the consumer sufficient time to approach the Magistrate’s
Court as aforesaid. I do not think that
s 86
requires the consumer or
his debt counsellor to ‘approach the court’ within the
period of 60 days. Indeed no time period
is specified within which
the debt counsellor must make application to the Magistrate’s
Court. Nor does the NCA require the
process of debt re-structuring to
be complete within the period of 60 days after the application was
made. To do so would obviously
be unrealistic. If it is
correct, the credit provider will have little, if any, opportunity to
terminate the debt review,
that is only the period after the 60 day
period and before the Magistrate’s Court is approached. A
sounder approach is to
recognise the express words of
s 86(10)
which
gives the credit provider a right to terminate the debt review in
respect of the particular credit transaction under which
the consumer
is in default, and only when he is default, at least 60 business days
after the application for debt review was made.
It must be
emphasised that it is only when the consumer is in default that the
credit provider has this right. If he is not, the
debt review
continues without the credit provider being entitled to terminate it.
It is not that the credit provider is ‘derailing’
the
process when he terminates the debt review: it the consumer that is
in breach of contract, not the credit provider. If the
consumer
applies for debt review before he is in default the credit provider
may not terminate the process. But if the consumer
is in default the
consumer is entitled to a 60 business days’ moratorium during
which time the parties may attempt to resolve
their dispute.
[13]
This conclusion is supported by
s 86(5).
Where, as in this case, the
consumer has applied for debt review before the credit provider has
proceeded to enforce the credit
agreement,
[32]
the consumer and credit provider are obliged, as
s 86(5)
requires,
not only to comply with any reasonable request by the debt counsellor
to facilitate an evaluation of the consumer’s
indebtedness and
the prospects for responsible debt restructuring but also to
participate in good faith in the review and negotiations.
[33]
This duty to negotiate does not terminate when the debt counsellor
refers his proposal to the Magistrate’s Court but continues
pending the hearing. This much was conceded by counsel appearing for
the National Credit Regulator, the
amicus
curiae
.
Moreover, the purpose of these negotiations is specifically to
‘result in responsible debt re-arrangement’
[34]
which is precisely what the debt review is all about.
[14]
The conclusion that the right of the credit provider to terminate the
debt review under
s 86(10)
can be exercised even after a referral to
the Magistrate’s Court, does not lead to the anomalous result
contended for on
behalf of the
amicus
curiae
.
[35]
While it is correct to say that
s 87(1)
requires that the
Magistrate’s Court ‘must conduct a hearing’, it is
not correct to argue that termination of
a debt review terminates the
hearing.
Section 86(10)
entitles a credit provider to terminate the
debt review relating to a specific credit agreement (‘[i]f a
consumer is in default
under a credit agreement that is being
reviewed’), not the ‘hearing’. The hearing
continues and, if several
credit agreements are being reviewed,
continues in respect of the others. Although notice of termination of
the debt review is
not required to be given to the Magistrate’s
Court but only to the consumer, debt counsellor and National Credit
Regulator,
[36]
the proceedings
are governed by the Rules of the Magistrates’ Courts which
makes adequate provision for the service of process
and notices.
[37]
[15]
However, the right of the credit provider to terminate the review is
balanced by
s 86(11)
which provides that if the credit provider has
given notice to terminate and proceeds to enforce the agreement ‘the
Magistrate’s
Court may order that the debt review resume on any
conditions that the court considers to be just in the circumstances’.
It is at this moment that the participation of the credit provider in
the debt review becomes relevant. He is obliged to comply
with the
reasonable requests of the debt counsellor
(s 86(5)(a))
and to
participate in good faith in the review and any negotiations designed
to result in responsible debt re-arrangement
(s 86(5)(b)).
Should the
credit provider fail or refuse to participate in the review, a
resumption of the process may well be ordered. But where
the credit
provider on good grounds conclude that the proposed restructuring
will not lead to the ‘satisfaction by the consumer
of all
responsible financial obligations’
(s 3(g)
and (i)) or a
re-arrangement as contemplated by
s 86(7)(c)
the court considering
the resumption of the debt review may well refuse to sanction its
resumption. As was stated by D Pillay J
in
FirstRand
Bank Ltd v Mvelase
,
[38]
the NCA strikes a balance between the interests of consumers and
those of credit providers –
‘
through
a push-pull tension which ensures that whenever sections of the NCA
tip the scales in favour of the consumer, countervailing
rights of
the credit provider in other sections sway the balance in favour of
the latter, and vice versa.’
[16]
Section 86(11)
refers to the ‘Magistrate’s Court’
that may give the order that the debt review be resumed. In his
judgment
in the court below Eksteen J considered that where
s 86(11)
refers to the Magistrate’s Court ‘hearing the matter’
it is a reference to the Magistrate’s Court to which
the debt
review has been referred. He reasoned that the jurisdiction conferred
by
s 86(11)
is specifically restricted to the Magistrate’s
Court in contrast to the powers enjoyed under
ss 83
,
85
,
129
(2) and
130
where reference is made to ‘the court’ or ‘a
court’. The debt review process provided for by
s 86
in its
entirety falls under the judicial oversight of the Magistrate’s
Court and, for that reason, he held that only the
Magistrate’s
Court had jurisdiction to order a resumption of the debt review.
[39]
[17]
Proceedings to enforce a credit agreement may be commenced in either
the High or the Magistrate’s
Court.
Section 86(11)
mentions
only the Magistrate’s Court. It seems to me that the words
‘hearing the matter’ in this subsection relate
to the
proceedings to enforce the agreement and must, consequently, refer to
the enforcing court which may be either the High or
the Magistrate’s
Court. The problem, however, is that
s 86(11)
does not refer to the
High Court at all. This, it was submitted, is an omission in the
legislation that can and should be cured
by reading the words ‘or
High Court’ into the subsection.
[40]
I agree with this approach: it will avoid the issues that may arise
from two different courts considering related matters.
[18]
Often debt enforcement proceedings take place by way of a simple
summons followed by an application
for summary judgment. As was said
in
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
,
[41]
‘summary judgment procedure was not intended to “shut (a
defendant) out from defending”, unless it was very clear
indeed
that he had no case in the action. It was intended to prevent sham
defences from defeating the rights of parties by delay,
and at the
same time causing great loss to plaintiffs who were endeavouring to
enforce their rights.’ Over-indebtedness is
not a defence on
the merits.
[42]
However,
because of its extraordinary and stringent nature a court has an
over-riding discretion to refuse an application for summary
judgment.
[43]
It would be
proper for a defendant to raise termination of the debt review by
reason of the credit provider’s failure to
participate or its
bad faith in participating when application for summary judgment is
made. These issues may be raised, not as
a defence to the claim, but
as a request to the court not to grant summary judgment in the
exercise of its over-riding discretion.
Of course, sufficient
information on which the request for a resumption of the debt review
is based must be placed before the court.
[19]
No such request was made by the appellant in the court below.
Moreover, the proposal by the debt
counsellor in respect of the
mortgage bond the debt review of which was terminated envisaged a
debt re-structuring in terms of
which the monthly instalments payable
on the mortgage bond be reduced from R6 644,93 to R3 500,00, but
payable over the same period
of time, that is 240 months. This would
deprive the respondent of nearly one half of what it was entitled to
under the credit agreement.
Such a proposal is not in accordance with
the NCA, particularly
s 86(7)(c)(ii)
, which places limits on the
proposal for the re-arrangement as well as on the order to be made in
terms of
s 87(1).
[44]
In these
circumstances the termination of the debt review by the respondent is
understandable. It follows that the appeal should
be dismissed. No
order for costs was sought.
[20]
The appeal is dismissed.
F R MALAN
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
SA
Collett
Instructed
by:
Gerhard
Stoltz Inc
East
London
Webbers
Bloemfontein
For
Respondent:
P F
Louw SC, S Eiselen and N Konstantinides
Instructed
by:
Glover
Inc
Parktown
Rossouws
Bloemfontein
For
Amicus Curiae:
A E
Franklin SC and A Govender
Instructed
by:
Honey
Attorneys
Bloemfontein
[1]
Section
8(4)(d)
and
s 1
sv
‘mortgage’ and ‘mortgage agreement’
.
[2]
Nedbank
Ltd & others v National Credit Regulator & another (
662/09
& 500/10)
[2011] ZASCA 35
(28 March 2011) paras 10 ff.
[3]
Section
88(3)
is of importance: ‘Subject to
section 86
(9)
and (10), a credit provider who receives notice of court proceedings
contemplated in
section 83
or
85
, or notice in terms of
section
86
(4) (b) (i), may not exercise or enforce by
litigation or other judicial process any right or security under
that
credit agreement until—
(a)
the consumer is in default under the credit agreement; and
(b)
one of the following has occurred
(i)
An event contemplated in subsection (1) (a) through (c); or
(ii)
the consumer defaults on any obligation in terms of a re-arrangement
agreed
between the consumer and credit providers, or ordered by a
court or the Tribunal.
[4]
SA
Taxi Securitisation (Pty) Ltd v Nako & others
[2010]
ZAECBHC 4;
Firstrand
Bank Ltd v Fillis
2010
(6) SA 565
(ECD);
Firstrand
Bank Ltd v Evans
(2010) ZAECPEHC 55;
Firstrand
Bank Ltd t/a First National Bank v Seyffert
2010
(6) SA 429
(GSJ). Some of the problems encountered with the
implementation of the NCA are discussed in National Credit Regulator
Debt
Review Task Team May
2010.
[5]
Standard
Bank of South Africa Ltd v Kruger; Standard Bank of South Africa Ltd
v Pretorius
2010
(4) SA 635
(GSJ);
SA
Securitisation (Pty) Ltd v Matlala
[2010]
ZAGPJHC 70;
Wesbank
a division of Firstrand Ltd v Papier (with the NCR as Amicus Curiae)
2011
(2) SA 395
(WCC). In some matters the question was left open (eg
BMW
Financial Services SA (Pty) Ltd v Mudaly
2010 (5) SA 618
(KZD) para 23). Others are not particularly clear on
the issue (eg
Changing
Tides 17 (Pty) Ltd NO v Erasmus & another; Changing Tides 17
(Pty) Ltd NO v Cleophas & another; Changing Tides
17 (Pty) Ltd
NO v Fredericks & another
[2009]
ZAWCHC 175).
[6]
A
useful comparison of some of the judgments was undertaken by D
Pillay J in
Firstrand
Bank Ltd v Mvelase
2011 (1) SA 470
(KZP) paras 51 ff.
[7]
2011
(2) SA 395 (WCC).
[8]
Para
21 and see
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 90.
[9]
Para
15. This argument was first developed in
Standard
Bank of South Africa Ltd v Kruger; Standard Bank of South Africa Ltd
v Pretorius
2010
(4) SA 635
(GSJ) paras 13 ff.
[10]
Section
86(4)(b).
[11]
Section
86(6)(a)
read with reg 24(6).
[12]
Section
86(7)(a).
[13]
Regulation
25(5).
Section 86(9)
provides: ‘If a debt counsellor rejects
an application as contemplated in subsection (7)(a), the consumer,
with leave of
the Magistrate’s Court, may apply directly to
the Magistrate’s Court, in the prescribed manner and form, for
an order
contemplated in subsection (7)(c).’
[14]
Nedbank
& others v National Credit Regulator & another
(662/09
& 500/10)
[2011] ZASCA 35
(28 March 2011) para 29
.
[15]
Para
25.
[16]
Para
26.
[17]
Para
28.
[18]
Nedbank
& others v National Credit Regulator & another
(662/09
& 500/10)
[2011] ZASCA 35
(28 March 2011) paras
20
ff.
[19]
Section
79
of the NCA.
[20]
Section
87(7)(b)
of the NCA (see H C J Flemming
Flemming’s
National Credit Act
2ed
139 ff).
[21]
Nedbank
& others v National Credit Regulator & another
(662/09
& 500/10)
[2011] ZASCA 35
(28 March 2011) paras 4 ff.
[22]
Section
86(7)(b).
[23]
Sections
86(7)
and 87.
[24]
Section
3(c)(i).
[25]
Section
3(g).
[26]
Section
3(i).
[27]
See
Nedbank
Ltd & others v National Credit Regulator & another
para
2;
Firstrand
Bank Ltd v Mvelase
2011
(1) SA 470
(KZP) paras 20-21;
Rossouw
& others v First National Bank t/a FNB Home Loans
(640/2009)
[2010] ZASCA 130
(30 September
2010); 2010 (6) SA 439
(SCA) para 17;
BMW
Financial Services (South Africa) (Pty) Ltd v Mudaly
2010
(5) SA 618
(KZD) para 16.
[28]
Section
s 86(6)(a).
[29]
National
Credit Regulator v Nedbank Ltd & others
2009
(6) SA 295
(GNP) at 313C-D.
[30]
Para
18.
[31]
Para
7.
[32]
Section
86(2).
[33]
Section
86(5) provides: ‘A consumer who applies to a debt counsellor,
and each credit provider contemplated in subsection
(4)(b), must –
(a) comply with any
reasonable requests by the debt counsellor to facilitate the
evaluation of the consumer’s state of indebtedness
and the
prospects for responsible debt re-arrangement; and
(b) participate in good
faith in the debt review and in any negotiations designed to result
in responsible debt-rearrangement.’
[34]
Section
86(5)(b).
[35]
See
also
Papier’s
case
above para 32.
[36]
Section
86(10)(a) (b) and (c).
[37]
Rule
9. See
GG
33487
of 23 August 2010 and
Nedbank
Ltd & others v National Credit Regulator & another
above,
para 28.
[38]
2011
(1) SA 470
(KZP) para 20.
[39]
See
paras 23 ff.
[40]
See,
in particular,
Mercedes
Benz Financial Services South Africa (Pty) Ltd v Dunga
2011
(1) SA 374
(WCC) paras 16-23 and 33-44.
[41]
[2009]
ZASCA 23
;
2009 (5) SA 1
(SCA) para 31.
[42]
C
van Heerden in J W Scholtz, J M Otto, E van Zyl, CM van Heerden and
N Campbell
Guide
to the
National Credit Act
(2008
)
para 12.16.
[43]
Joob
Joob Investments
paras
10-11.
[44]
Cf
SA
Taxi Securitization (Pty) Ltd v Mongezi Moni & others
[2011] 2 AEC GHC 11 paras 34 ff.