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[2022] ZAFSHC 197
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Gcasamba v Mercedez-Benz Financial Services Sa (Pty) Ltd and Another (4526/2021) [2022] ZAFSHC 197; 2023 (1) SA 141 (FB) (15 August 2022)
SAFLII
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
Case No.:
4526/2021
Reportable: Yes
Of Interest to other
Judges: Yes
Circulate to
Magistrates: Yes/No
In the matter between:
MENEZI LUSAPHO
GCASAMBA
Applicant
and
MERCEDEZ-BENZ
FINANCIAL
SERVICES SA (PTY)
LTD
First
Respondent
SHERIFF, BLOEMFONTEIN
WEST
Second
Respondent
CORAM:
N. SNELLENBURG, AJ
HEARD ON:
5 MAY 2022
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and time
for hand-down is deemed to be 15 August 2022 at 11H00.
Summary:
It is not
competent for the Registrar of the High Court to grant default
judgments in matters to which the
National Credit Act 34 of 2005
applies.
National Credit Act 34 of 2005
–
s130(3).
INTRODUCTION
[1]
This judgment turns around the competency of the Registrar of the
High Court to grant default judgments
in matters to which the
National Credit Act 34 of 2005
[NCA] applies.
[2]
The application under consideration involves an opposed application
for rescission of a default judgment
granted by the Registrar on 3
November 2021 where a credit provider enforced a credit agreement
resorting under the auspices of
the NCA. In terms of the order, the
first respondent’s termination of the credit agreement was
confirmed; the return of the
vehicle, forming the subject matter of
the credit agreement, to the first respondent was authorised; cost of
the suit was awarded
to the first respondent; and leave was granted
to the first respondent to approach the Court after the vehicle was
repossessed
and sold to claim damages and ancillary relief which need
not be recorded for purposes hereof.
[3]
Even though the application is made in terms of Uniform
rule 42
[Rule
42], alternatively the common law, alternatively ‘
any other
applicable rule of law
’, the heads of argument and oral
submissions on behalf of the applicant concentrated only on a
rescission in terms of
Rule 42.
[4]
The main issue serving for determination is whether it is competent
for the Registrar of the High Court
to grant default judgments or
make any orders in matters resorting under the
National Credit Act 34
of 2005
.
BACKGROUND FACTS
[5]
On 25 April 2018 the first respondent, a credit provider duly
registered as such in terms of the applicable
provisions of the NCA,
and the applicant, concluded an instalment sale agreement [the
agreement] in terms whereof the first respondent
sold a 2014 used
Mercedes-Benz [the vehicle] to the applicant. The agreement
is
a credit agreement to which the NCA applies.
[6]
In the credit agreement, the applicant selected No [....] F[....]
G[....] M[....] B[....] as
his domicilium citandi et
executandi where all notices must be sent in terms of the provisions
of
s96
and s
129
(5) and (6) of the NCA.
[7]
In terms of the agreement the first respondent reserved ownership of
the vehicle until the applicant
fulfilled all his obligations under
the agreement. The applicant failed to
meet his obligations
under the credit agreement and fell in arrears.
[8]
On 5 August 2021 the first respondent addressed a
s129(1)
notice,
dated 4 August 2021, to the applicant by delivering the notice by
pre-paid registered post to the applicant’s chosen
domicilium
address. On 23 August 2021 the SA Post Office sent the first
notification to the recipient, being the applicant, to
collect. At
that stage the arrears were R86 186.97. The applicant did not respond
to the notice.
[9]
As result of the applicant’s breach of the agreement and
failure to respond to the notice in terms
of
s129
, the first
respondent was entitled to cancel the instalment sale agreement;
obtain the return of the vehicle and proceed in terms
of Chapter 6,
Part C
of the NCA. The first respondent exercised this election and
issued summons against the applicant wherein it claimed confirmation
of the termination of the agreement, the return of the vehicle with
leave to approach the Court after the vehicle had been sold
for
damages and ancillary relief if necessary. At that stage the arrears
were R105 658.85 and the outstanding balance which became
immediately
due and payable amounted to R299 476.97 with interest as agreed to
accrue on the outstanding amount.
[10] The
Sheriff effected service of the combined summons on 14 October 2021
at the applicant’s chosen domicilium
address, to wit No [....]
F[....] G[....] M[....] B[....] on Me Farao, a domestic worker
ostensibly a responsible person and not
less than 16 years of age, of
and in control of the chosen domicilium citandi in the absence of the
applicant.
[11] On 29
October 2021 the first respondent applied for a default judgment in
terms of
Rule 31(5)
together with a warrant for delivery of goods, in
line with the practice for default judgments of that ilk that was
followed in
this Division at the time.
[12]
On
3 November 2021 the Registrar granted the default judgment
referred to in paragraph 2 above and issued a warrant for delivery of
goods.
[13] At the
end of November 2021 the Sheriff repossessed the vehicle.
THE APPLICANT’S
CASE
[14]
The applicant describes himself in the founding affidavit as
an adult male practicing attorney.
[15] The
applicant does not dispute breaching the agreement, nor the arrear
amount.
[16] The
applicant concedes that the domicilium address recorded in para 6
above was selected by him in the agreement
as domicilium address for
service of all notices. It is also conceded by the applicant that he
never changed this address in terms
of the provisions of
s96
of the
NCA. The applicant states in his replying affidavit that he had
neglected to ‘inform’ the first respondent of
his new
address.
[17]
According to the applicant he only became aware that summons was
issued, and the order granted, when the Sheriff
repossessed the
vehicle. To this end the applicant states in his founding affidavit
that he vacated the residential address he
had selected as domicilium
citandi in the agreement, during April 2021.
[18] After
unsuccessful attempts to convince the first respondent to abandon the
judgment and being informed by the
first respondent’s attorneys
on 17 December 2021 that their instructions were to execute the
judgment granted in their client’s
favour, the applicant issued
this application.
[20] The
applicant contends that the
s129
notice was not ‘
served
’
on him as he was no longer resident at the domicilium address.
[21] As far
as service of the combined summons is concerned, the applicant
questions the Sheriff’s return of service
in light thereof that
the residence was, according to him, vacant until November 2021 when
the new tenant moved in. To this end
the applicant tendered a
confirmatory affidavit of the new tenant, Dr. Thabiso Rapapali, as
annexure to his replying affidavit.
[22] The
applicant premised the application, both in terms of his reliance on
Rule 42(1)(a)
and the common law, on the following grounds:
22.1
Firstly the applicant contends that the judgment was erroneously
sought by first respondent because the
combined summons was
served at an address where he no longer resided and which, according
to him, was vacant when the service was
effected. The applicant
therefore contends that he was not given ‘notification’
of the proceedings against him as result
of which he was deprived of
the right to be heard.
22.2
Secondly, the applicant contends that the
s129
notice was not
‘served’ on him as result of which the judgment was
erroneously granted. The contention is premised
on the fact that he
was no longer resident at the chosen domicilium address when the
notice was delivered by pre-paid registered
post. As result the
applicant states that he was denied the opportunity to exercise his
rights in terms of the NCA to pursue the
options in the
s129
notice.
He complains that he was denied his constitutionally entrenched right
to defend the action and to have his day in Court.
22.3
Thirdly, the applicant contends that the Registrar does not have the
power to grant default judgments in
matters resorting under the
auspices of the NCA. The applicant relies on the fact that the Judge
President subsequently issued
a directive that all applications for
default judgments in matters resorting under the auspices of the NCA
must be heard in open
court, although it is conceded that this
directive only followed after the default judgment in question had
already been granted.
The applicant placed reliance on the concurring
judgment by Jafta J in
Nkata
v FirstRand Bank Ltd
[1]
[
Nkata
]
as well as the judgments in
Tseu
v FirstRand Auto Receivables (RF) Limited and another
(89371) [2020] ZAGPPHC 319 (12 June 2020) [
Tseu
]
and
Xulu
v Standard Bank of South Africa Limited
(1570/21; 2909/14) [2021] ZAKZPHC 51 (23 August 2021) [
Xulu
].
THE FIRST RESPONDENT’S
CASE
[23]
The applicant selected the domicilium address in terms of the
relevant provisions of the NCA. The applicant did
not change this
address by delivering to the first respondent a written notice of a
new address by hand, registered mail, or electronic mail as
envisaged
by
s96(2)
of the NCA.
[24] The
s129
notice was duly delivered to the applicant as required by
s129(1)
read with
s129(5)
and (6) of the NCA, proven by the ‘track and
trace report’ of the SA Post Office which was appended to the
combined
summons. Delivery of the
s129
notice satisfied the
requirements of
s129(7)
of the NCA and complied with the requirements
enunciated in Sebola and Another v Standard Bank of South Africa Ltd
and Another
[2]
[
Sebola
]
as explained in Kubyana v Standard Bank of SA Ltd
[3]
[
Kubyana
].
[25] The
summons was duly served on the applicant by the Sheriff
at
the applicant’s chosen domicilium address on Me Farao, a
domestic worker ostensibly a responsible person and not less than
16
years of age, of and in control of the chosen domicilium citandi in
the absence of the applicant. This constitutes proper service.
[26] The
Registrar is empowered to grant default judgments in terms of the
provisions of
s23
of the
Superior Courts Act 10 of 2013
read with
Uniform
rule 31(5).
[27]
Rule 42
affords the Court a discretion to refuse to set aside a judgment even
when the requirements for rescission are satisfied. The first
respondent contends that the Court should, in the exercise of its
discretion, refuse to set aside the default judgment if it holds
that
the Registrar was not empowered to grant the judgment, as the
applicant was properly notified of the intended legal action
and his
failure to defend the action was wilful.
DISCUSSION
[28] In terms
of Uniform
rule 42(1)(a)
the Court may, in addition to any other
powers it may have, mero motu or upon the application of any party
affected, rescind or
vary an order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby.
[29]
In
Lodhi
2 Properties Investments CC and Another v Bondev Developments (Pty)
Ltd
[4]
,
Streicher JA explained that if a party is procedurally entitled to an
order, it cannot be said to have been granted erroneously
in the
absence of another party, regardless of subsequently disclosed
defence.
[5]
[30] Once the
judicial requirements for a rescission in terms of
Rule 42(1)(a)
are
however satisfied, an applicant is entitled to rescission of the
order or judgment. Unlike an application for rescission in
terms of
the common law or
Rule 31
, an applicant is not required to show 'good
cause' in the sense of an explanation for his default and a bona fide
defence if the
requirements for rescission in terms of
Rule 42(1)(a)
are satisfied.
[6]
Lastly, an
application for rescission in terms of either
Rule 42
or the common
law must be made within a reasonable time after the applicant
acquired knowledge of such judgment.
[31] For
reasons that follow, the default judgment was erroneously granted
since the Registrar of the High Court is
not competent and not
empowered to grant any order or judgment in a matter to which the NCA
applies. In light of this conclusion,
it is not necessary to consider
the other grounds advanced by the applicant as the judgment, warrant
of attachment and the subsequent
attachment must in my view be set
aside.
[32] The
question regarding the Registrar’s power to grant default
judgments in matters to which the NCA applies
has been the subject of
various judgments during the recent past. The views of the different
courts are not in harmony with one
another.
[33] Some of
the more prominent judgments which concluded that the Registrar was
not empowered to grant default judgments
in matters to which the NCA
applies are
Tseu
[7]
,
Xulu
[8]
and
Seleka
v Fast Issuer SPV (RF) Limited and Another
(46620/20) [2021] ZAGPPHC 128 (10 March 2021) [
Seleka
].
These judgments all referred to and relied on Jafta J’s
concurring judgment in
Nkata
[9]
.
[34] In
Nedbank
Limited v Mollentze; FirstRand Auto Receaivables (RF) Ltd v Radebe
and Another
2022 (4) SA 597
(ML); (2757/2021) [2022] ZAMPMHC 5; (23 March 2022)
[
Mollentze
]
the Full Court, Mpumalanga Division, Middelburg however reached a
different conclusion, namely that
empowering
the Registrar with the authority of a court in terms of
s23
of
the
Superior
Courts Act,
was
meant to enable the Registrar to deal with quasi-judicial functions
including consideration and granting of default judgments in
matters
resorting under the NCA.
[10]
As
appears from para 3 of the aforesaid judgment, two cases were
referred by the Acting Registrar at the Middelburg Local Seat to
be
heard in open court in terms of
Rule 31(5)(b)(vii)
in light of the
judgments in
Tseu
and
Xulu
above, as well as the judgment in
Nkata
[11]
which,
in terms of the Registrar’s referral, found’ that the
Registrar did not have the powers or statutory authority
to grant
default judgments in matters concerning agreements governed by the
NCA.
The
Full Court in
Mollentze
held, inter alia, that Jafta J’s judgment was not binding on it
as it was a minority judgment that was merely taken note
of by the
majority judgment and t
he
court in
Nkata
was not called upon to answer whether
s130(3)
of
the Act prohibits the registrar from granting default judgment in
matters falling under the Act.
[35]
I respectfully disagree with the reasoning and conclusions of the
Full Court, Mpumalanga Division, Middelburg in
Mollentze
. My
reasons appear from the discussion below.
[36] I arrive
at my finding that it is not competent for the Registrar of the High
Court to grant default judgments
in matters resorting under the NCA
for the following reasons. Firstly, I consider the matter to have
been settled by the Constitutional
Court. That being so, all courts
are bound by the dictum. Secondly, the proper interpretation of the
applicable provisions of the
NCA leaves no doubt that the legislature
intended only a Court, as opposed to anybody else i.e., the
Registrar, to grant judgments
and/or orders in matters to which the
NCA applies.
THE CONSTITUTIONAL
COURT ESTABLISHED THAT A DEFAULT JUDGMENT GRANTED BY THE REGISTRAR IS
INCOMPATIBLE WITH THE PROVISIONS OF
S130(3)
OF THE NCA
[37]
Nkata
[12]
was heard on 19 November 2015 and the judgment delivered on 16 April
2016.
Nkata
concerned the correct interpretation of
ss129(3)(a)
and
129
(4)(b) of
the NCA. The majority judgment was penned by Moseneke DCJ. Jafta J
wrote a concurring judgment containing additional
reasons he relied
upon, which Moseneke DCJ noted.
[13]
Jafta J held as follows at paras 169-173-
“
[169]
Parliament
has considered compliance with
s 129(1)
to be so important that it
deemed it necessary to preclude a court from adjudicating the dispute
until the court itself is satisfied
that there was compliance.
Notably, it is the court that must be satisfied and nobody else. This
signifies that legal proceedings
to which the Act applies must be
determined by the court only.
[170]
Furthermore,
s 130(3)
precludes a court from deciding the case unless it is
satisfied that the notice requirements in
s 129
have been complied
with
.
Section 130(3)
provides:
'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; '
[Emphasis added.]
[171] If it
appears to the court that the credit provider has not complied with
s
130(3)(a)
or that it is not positively satisfied that there was
compliance, the court must —
(a)
adjourn the matter before it; and
(b)
make an appropriate order setting out steps the credit provider must
complete before the matter may
be resumed.
[172] Later in
Kubyana, we reaffirmed the principle that the court is precluded from
deciding a matter unless it is satisfied
that the procedures
stipulated in
ss 129
and
130
are met. We said:
'The text of this section
reveals that in the event of the consumer being in default of her
repayments of the loan, the credit provider
is obliged to draw the
default to the attention of the consumer. The section prescribes that
the notice given to the consumer must
be in writing. It further
stipulates what the notice must contain. The notice must propose the
options available to the consumer
who is in financial distress and
unable to purge the default. It must point out that, at the election
of the consumer, the credit
agreement may be referred to a debt
counsellor, dispute resolution agent, consumer court or ombud. The
purpose of the referral
must also be stated in the notice. The
purpose of the referral is to resolve whatever disputes may have
arisen from the credit
agreement and also to agree on a plan to cure
the default and bring the payments up to date. Furthermore, the
section makes reference
to
s 130
which governs the institution of
litigation for enforcing credit agreements.
Section 129(1)
lays down
two conditions which must be met before the credit provider may
institute litigation. In peremptory terms, the section
declares that
legal proceedings to enforce the agreement may not commence before —
•
first
providing notice to the consumer; and
•
meeting
further requirements set out in
s 130.'
[173] Here the
legal fees claimed by the bank arose in circumstances where the bank
had acted in breach of the Act in a number
of respects. First, it
failed to give notice as required by
s 129(1)
read with
s 130(1).
Second, it sought and obtained a default judgment from the
registrar of the High Court, something that is incompatible with
s
130(3)
which requires such matters to be determined by the court.
Third, the bank sought and obtained the default judgment without
satisfying the court on compliance with
s 129.
Fourth, the bank
caused a writ to be issued, an attachment to be effected and Ms
Nkata's home to be advertised for sale in execution
on account of an
invalid judgment. Fifth, the bank opposed Ms Nkata's application for
the rescission of that judgment.” [Own
emphasis added]
[38]
University
of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and
Correctional Services and Other
s
,
[14]
[
University
of Stellenbosch Legal Aid Clinic]
followed after
Nkata
.
It was heard on 3 March 2016 and the judgments handed down on 13
September 2016.
[39] In
University
of Stellenbosch Legal Aid Clinic
the
Constitutional Court was called upon to consider an application for
confirmation of a High Court order that ss65J(2)(a) and
65J(2)(b)(i)
of the Magistrates' Courts Act
[15]
were 'inconsistent with the Constitution and invalid to the extent
that they fail to provide for judicial supervision of
the issuing of
an emoluments attachment order against a judgment debtor'. In his
dissenting judgment (the first judgment), Jafta
J explained the
effect of Part C [Debt enforcement by repossession or judgment
(
ss
129-133)]
of the NCA. Two concurring majority judgments were delivered by
Cameron J and Zondo J (as he then was) respectively (referred
to as
the second and third judgments). Both Cameron J and Zondo J also
concurred with the judgment of the other. In the second
judgment,
Cameron J ‘gratefully’ adopted the exposition of the
background facts and of the
statutory
and
constitutional
provisions
as dealt with by Jafta J.
[16]
As stated, Zondo J also concurred with this judgment.
[17]
[40]
Considering the reasoning by the Court in
Mollentze
above, it
is necessary to recite Jafta J’s exposition in some detail -
“
[15]
The democratic dispensation rendered legislation that governed the
credit markets ill-suited to an economy
open to the entire
population. The black population was afforded the opportunity to
participate in the financial credit market,
both as creditors and
consumers of credit. The democratic government realised that the
credit market was the lifeblood of economic
development. This is
because credit enabled consumers to acquire assets like houses, cars
and furniture which they could not afford
without credit finance.
Many overextended themselves in debt they could not repay.
Unscrupulous and reckless credit providers also
entered the market
and offered small loans without any form of security, in contrast to
banks. In return they charged exorbitant
interest which raised the
amount owing rapidly within a short span of time, with disastrous
consequences for debtors who perpetually
remain in the hole of debt.
[16]
Parliament intervened by passing the
National Credit Act and
by so
doing overhauled the previous credit legislation. This legislation
came into effect in three phases. The objects of the
National Credit
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 . . .'
[18]
[17]
The
National Credit Act seeks
to protect consumers by a number of
means including the promotion of responsible borrowing that avoids
overindebtedness, prevention
of reckless credit-granting by credit
providers, encouragement of consumers to fulfil their financial
obligations and provision
of a consistent and accessible system of
consensual resolution of disputes arising from credit agreements.
[18]
But the
National Credit Act does
not only protect and advance the
interests of debtors. It also promotes the interests of credit
providers. For it may only achieve
the goal of a 'fair, transparent,
competitive, sustainable, responsible, efficient, effective and
accessible credit market', if
the Act strikes the right balance in
advancing the rights of consumers on the one hand and credit
providers' interests, on the
other.
[19]
The
National Credit Act has
introduced a reformed framework that
regulates the credit market from the moment money is lent up to the
point of initiating legal
proceedings to enforce the terms of the
credit agreement. The institution of litigation is governed by
part C
of ch 6. Where a debtor has defaulted in repaying a debt,
part C
obliges the credit provider first to pursue a consensual resolution
of the dispute before instituting legal proceedings.
Section 129(1)
demands that notice be given to the consumer, drawing her attention
to the default and proposing that if the consumer so wishes,
she may
refer the matter to a debt counsellor with the intent that the
parties may resolve the dispute and agree on a plan to bring
payments
up to date.
[19]
[20] A
major reform introduced by
part C
is to freeze the credit provider's
contractual and common-law rights. At common law the credit provider
is entitled to approach
the courts immediately upon the debtor's
default. In effect
part C
suspends the exercise of the right of
access to courts by the credit provider until the
consensual-resolution process has run its
course or the debtor fails
to take part in that process.
[21]
In Sebola, this court affirmed the suspension of the rights to
approach courts in these terms:
'
Section 129(1)(a)
requires a credit provider, before commencing any legal proceedings
to enforce a credit agreement, to draw the default to the notice
of
the consumer in writing. It has been described as a gateway
provision, or a new pre-litigation layer to the enforcement process.
Although
s 129(1)(a)
says the credit provider may draw the consumer's
default to his or her notice,
s 129(1)(b)(i)
precludes the
commencement of legal proceedings unless notice is first given. So,
in effect, the notice is compulsory.'
[20]
[22]
Both
ss 129(1)(b)
and
130
(1) preclude the credit provider from
instituting litigation before satisfying their requirements. The
National Credit Act considers
compliance with those requirements to
be so pivotal to debt collection that it even suspends the exercise
of judicial power by
the courts to adjudicate disputes arising from
credit agreements. In this regard
s 130(3)(a)
provides:
'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; .
. . .' [Emphasis added.]
[23]
What emerges from the text of this section is the fact that it
supersedes 'any provision of law or contract
to the contrary'
and
obliges a court to adjudicate a dispute arising from a credit
agreement 'only if the court is satisfied'
that the procedures
required by
ss 127
,
129
and
131
have been complied with. If not, the
power to adjudicate remains suspended until there is compliance with
the steps set out in
the court order that adjourns the proceedings.
[24]
Section 130(4)
governs the situation where a credit provider has
instituted the proceedings without complying with the procedure in
s
129.
Again in peremptory language, this
section
mandates the court to adjourn the hearing before it
and 'make an appropriate order setting out the steps the credit
provider must complete before the matter may be resumed'.
[21]
[25]
The scheme that emerges from a close examination of
ss 130(3)
and (4)
is that in all proceedings to which the
National Credit Act applies
,
the court is required first at the commencement of the hearing to
enquire into whether there was compliance with
s 129.
For it may
adjudicate the case only if so satisfied.
Notably it must be the
court and the court alone that is satisfied that there was
compliance. Furthermore, it must only be the court
that determines
the case and grants judgment. The court's satisfaction that there was
compliance constitutes a jurisdictional fact
which must exist before
the court may continue with the hearing. For the court to be
satisfied, the relevant section requires facts
which show that there
was compliance to be placed before the court
.
[26]
In the eyes of the
National Credit Act, the
existence of this
jurisdictional fact is a prelude to the continuation of the hearing
and determination of the matter by the court.
Absent the
jurisdictional fact, the court must adjourn the proceedings and
direct that certain steps be followed. The section leaves
it to the
discretion of the court to determine steps that are appropriate to a
particular case. Once the matter is adjourned, the
hearing may only
resume if the credit provider has taken all steps specified in the
court order
.
[27]
Of relevance to the present matter is the impact of
ss 129
and
130
of
the
National Credit Act on
the procedures set out in ss 57 and 58 of
the Magistrates' Courts Act.
The
latter sections empower a clerk of the court to adjudicate and grant
judgment in favour of the credit provider in certain defined
circumstances. This is inconsistent with s 129 read with s 130. In
terms of s 129 read with s 130 it is only the courts which decide
a
matter to which the
National Credit Act applies
.
This conflict must be resolved with reference to
s 172
of the
National Credit Act.”
[22
]
[Own emphasis added]
[41] As
stated above, the majority judgment ‘gratefully’ adopted
the exposition of the background facts
and of the
statutory
and
constitutional
provisions
as dealt with by Jafta J.
[23]
[42] The
difference between the second judgment (first concurring majority
judgment) and the minority judgment was explained
by Cameron J to be
(a) ‘[T]he first judgment [Jafta J’s judgment] assumes,
without affirming definitively, that the
Constitution requires
judicial supervision when orders issued from a court are executed and
finds that this is how the contested
provision ought to be properly
interpreted’; and (b) together ‘with associated relief,
the High Court granted an order
striking down certain words in
s65J(2)(a), (b)(i) and (b)(ii) of the Act 'to the extent that they
fail to provide for judicial
oversight over the issuing of an
emolument[s] attachment order against a judgment debtor'. The first
judgment would deny this order
confirmation (the other relief the
applicants obtained remains intact). Instead, it parses the provision
at issue to render it
conformable with the assumption that judicial
oversight is constitutionally necessary’.
[43] The
difference between the second concurring majority judgment and the
minority judgment by Jafta J relates to
the issuing of emoluments
attachment orders in the Magistrates’ Court. Jafta J held that
the Court issued emoluments attachment
orders in terms of the
relevant provisions of the Magistrates’ Court Act, whilst the
third judgment (second concurring majority
judgment) held that the
Court’s power in terms of the section under consideration is
not to issue an emoluments attachment
order itself, but its role is
to authorise that someone else issue the emoluments attachment order.
There were sections where the
Court issued such orders, but that was
not the case with the impugned sections the Court was called upon to
consider.
[44] Jafta
J’s exposition of the statutory and constitutional provisions
as adopted by the second judgment (first
majority concurring
judgment), specifically in relation to the impact of ss 129 and 130
of the NCA in the context of judicial oversight
in the debt
enforcement and execution, is in my view part of the reasoning
necessary for the decision of the issues before the
Court and thus
part of the ratio decidendi, as opposed to being obiter dicta.
[24]
The decision is therefore in my view binding.
[45] What
University of Stellenbosch Legal Aid Clinic
establishes with
regards to the issue under consideration can be summarised as
follows:
45.1
Both ss129(1)(b) and 130(1) preclude the credit provider from
instituting litigation before satisfying their
requirements.
45.2
The
National Credit Act considers
compliance with those requirements
[ss129(1)(b) and 130(1)] to be so pivotal to debt collection that it
even suspends the exercise
of judicial power by the courts to
adjudicate disputes arising from credit agreements.
45.3
What emerges from the text of
s130(3)
is the fact that it supersedes
'any provision of law or contract to the contrary' and obliges a
court to adjudicate a dispute arising
from a credit agreement 'only
if the court is satisfied' that the procedures required by
ss127
,
129
and
131
have been complied with. If not, the power to adjudicate
remains suspended until there is compliance with the steps set out in
the court order that adjourns the proceedings.
45.4
Section 130(4)
mandates the court, in peremptory language, to adjourn
the hearing before
it
and to make an appropriate order setting
out the steps the credit provider must complete before the matter may
be resumed for it
[the court] may adjudicate the case only if so
satisfied.
45.5 It
must be the court, and the court alone, that is satisfied that
compliance has been met. Furthermore, only
the court may determine
the case and grant judgment.
45.6
The court's satisfaction regarding the required compliance
constitutes a jurisdictional fact which must exist
before the court
may continue with the hearing. For the court to be satisfied, the
relevant section requires facts to be placed
before the court which
show that compliance has been met. The existence of this
jurisdictional fact is a prelude to the continuation
of the hearing
and determination of the matter by the court. Absent the
jurisdictional fact, the court must adjourn the proceedings
and
direct certain steps to be followed.
45.7
Section 130(3)
leaves it to the discretion of the court to determine
steps that are appropriate to a particular case. Once the matter is
adjourned,
the hearing may only resume if the credit provider has
taken all steps specified in the court order.
45.8
The impact of
s129
and
130
of the NCA is that only courts decide
matters to which the
National Credit Act applies
.
[46] None of
the judgments referred to in paras 33 and 34 and specifically the
Full Court judgment in
Mollentze
considered
University of
Stellenbosch Legal Aid Clinic
.
[47] To
conclude, t
he dictum in
University of
Stellenbosch Legal Aid Clinic
is to my mind
binding precedent and dispositive of both this matter as well as any
doubt regarding whether the Registrar is competent/empowered
to grant
default judgments in matters resorting under the NCA. The position is
settled: legal proceedings to which the NCA applies
must be
determined by the Court alone and nobody else.
ASCERTAINING THE
LEGISLATIVE INTENTION WITH
SECTION 130(3)
OF THE NCA AND THE MEANING
TO BE GIVEN TO “COURT’ AS USED IN THE SECTION
[48]
If I am wrong in concluding that Jafta J’s findings in
University of Stellenbosch Legal Aid Clinic
are
binding, it should unquestionably have strong persuasive force,
especially since the detailed statutory exposition of the debt
enforcement provisions of the NCA enshrined in the minority judgment
was adopted by the first concurring majority judgment in
University
of Stellenbosch Legal Aid Clinic
. The third
judgment by Zondo J (second concurring majority judgment) is also
instructive. Whilst the judgment admittedly deals
with the
Magistrates’ Courts Act, Zondo J undertakes a detailed
interpretive analysis of relevant sections in that Act to
determine
what the ‘court’s’ role is with regards to the
issuing of
emoluments attachment orders. The judgment holds
that if it is the ‘court’ that issues the emoluments
order, there
will be judicial oversight, if it someone else, i.e.,
the Clerk or Registrar, there will be no judicial oversight unless
prior
to issuing there is judicial intervention by the ‘court’.
[49]
In the event that the findings regarding s130(3) of the NCA in
University of Stellenbosch Legal Aid Clinic
do
not constitute binding precedent, I agree with Jafta J that s130(3)
in mandatory terms provides that the Court, and nobody else,
i.e.,
the Registrar, must satisfy itself that there has been compliance
before
the Court may determine the matter
.
Whilst
one Division of the High Court, however constituted, is not bound by
a decision of another Division of the High Court, a
judgment by a
Full Court in another Division will usually have strong persuasive
value. Regardless of the aforesaid and not taken
lightly, I
respectfully reach the conclusion that
Mollentze
should not be followed.
[50] The
question at hand is what meaning should be given to “
the
court
” in s130(3) of the NCA.
[51]
Section
39(2) of the Constitution of the Republic of South Africa, 1996 [“the
Constitution”] enjoins every court when
interpreting
legislation to promote the spirit, purport and objects of the Bill of
Rights. This principle is a 'mandatory constitutional
canon of
statutory interpretation'.
[25]
[52] The
meaning of the provisions in an Act must be ascertained, having
regard to the scheme of the Act as a whole,
and to the object and
purpose of the legislation underpinning the provisions being
interpreted.
[26]
[53] A
fundamental tenet of statutory interpretation is that recourse is
first had to the plain, ordinary grammatical
meaning of the words in
question. “There are three important interrelated riders to
this general principle, namely (a) statutory
provisions should always
be interpreted purposively; (b) the relevant statutory provision must
be properly contextualised; and
(c) all statutes must be construed
consistently with the Constitution, that is, where reasonably
possible, legislative provisions
ought to be interpreted to preserve
their constitutional validity. This proviso to the general principle
is closely related to
the purposive approach referred above in
(a)”
[27]
.
[54] The
purposive approach was described in
Jaga
v Dönges NO and Another; Bhana v Dönges NO and
Another
,
[28]
to encompass:
“
Certainly no less
important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may be
useful to stress two points
in relation to the application of this principle. The first is that
''the context'', as here used,
is not limited to the language of the
rest of the statute regarded as throwing light of a dictionary kind
on the part to be interpreted.
Often of more importance is the matter
of the statute, its apparent scope and purpose, and within limits,
its background.”
[55]
Another
well-established principle of statutory construction is that the
legislature must be taken to be aware of the nature and
state of the
law existing at the time when legislation is passed.
[29]
[56] Section
2 of the NCA provides as follows with regards to the interpretation
of the Act-
‘
(7)
Except as specifically set out in, or necessarily implied by, this
Act, the provisions of this Act are
not to be construed as-
(a)
limiting, amending, repealing or otherwise altering any provision of
any other Act;
(b)
exempting any person from any duty or obligation imposed by any other
Act; or
(c)
prohibiting any person from complying with any provision of another
Act.’
[57]
The background, purpose, and scheme of the NCA were lucidly traversed
in
Sebola
and
Kubyana
as well
as by Jafta J in
University of Stellenbosch Legal Aid
Clinic
.
[58] In
addition to the aforesaid judgments Navsa JA’s discussion of
the purpose of the NCA in
FirstRand
Bank Limited t/a Wesbank v Davel
[30]
is similarly instructive:
“
[12]
I turn to a consideration of the relevant provisions of the Act. It
is necessary to have regard, first, to the
purpose of the Act and,
second, to all of the material parts of its extensive and rather
convoluted provisions. The relevant part
of the long title of the Act
states that the Act was promulgated, inter alia, ‘to promote a
fair and non-discriminatory market
place . . . [and] to provide for
the general regulation of consumer credit and improve standards of
consumer information’.
Section 3 spells out the
Act’s purpose:
‘
The purposes of
this Act are to promote and advance the social and economic welfare
of South Africans, promote a fair, transparent,
competitive,
sustainable, responsible, efficient, effective and accessible credit
market and industry, and to protect consumers,
by—
(d)
promoting equity in the credit market by balancing the respective
rights and
responsibilities of credit providers and consumers;
. . .
(f)
improving consumer credit information and reporting and regulation of
credit bureaux;
(g)
addressing and preventing over-indebtedness of consumers, and
providing mechanisms
for resolving over-indebtedness based on the
principle of satisfaction by the consumer of all responsible
financial obligations;
(h)
providing for a consistent and accessible system of consensual
resolution of
disputes arising from credit agreements; and
(i)
providing for a consistent and harmonised system of debt
restructuring, enforcement
and judgment, which places priority on the
eventual satisfaction of all responsible consumer obligations under
credit agreements.’
The Act has as one of its
main purposes the protection of the interests of consumers.’
……
.
Navsa JA
inter alia
deals with s122, quotes ss123, 127 (in relevant parts), 128, 129,
130(1) and 130(3) in paras 13 – 18 and then continues-
[19]
It is clear from these provisions that the legislature was intent
on ensuring that sufficient protections are provided to ensure
that,
upon termination of a credit agreement, a consumer is protected.
The Act provides mechanisms for a consumer to challenge the estimated
values and the price realised upon a sale of goods after
either a
surrender of the goods by a consumer or the repossession of the goods
after action has been taken by the credit provider.
As can be seen
from the provisions set out above, the Act also provides for
enforcement of the rights of credit providers.
Its purpose is
directed to ensuring, as far as is practically possible, an equality
of arms
.
[20]
Significantly, s 131, under the heading ‘Repossession of
goods’, provides
as follows:
‘
If a court makes
an attachment order with respect to property that is the subject of a
credit agreement, section 127(2) to (9) and
section 128, read with
the changes required by the context, apply with respect to any goods
attached in terms of that
order.’ (My emphasis.)
This section makes the
aforesaid provisions applicable to the situation where the credit
provider took the initiative to repossess
the goods sold in terms of
a credit agreement. It can only do so after fulfilling the prescribed
steps set out in ss 127 and 129.
It is distinct from the situation
where a consumer initiates the termination of the agreement and the
return of the goods purchased.”
[Own
emphasis added]
[59]
Section 6
of the
Superior Courts Act
[31
]
deals with the constitution of High Courts. In Civil Procedure in the
Superior Courts
[32]
the author
observes that in statutes the difference between use of the word
“court” and “judge” usually
reflects the
difference of sitting in ‘open court’ or ‘in
chambers’
.
To this end Schutz JA suggested in
Pretoria
Portland Cement Co Ltd and Another v Competition Commission and
Others
[33]
that
where a Judge’s services are properly engaged, legislation
should refer to a court and not a Judge.
[60]
When ascertaining the legislative intention with
s130(3)
purposively
in its proper context,
s130(3)
requires that
there
must be judicial intervention
by
the Court before proceedings that have been commenced by a credit
provider may be determined. Following that, the proceedings
must be
determined by the Court. The section therefore requires judicial
oversight
before
the proceedings initiated by a credit provider may be determined.
The
section is expressly
formulated
in a way that shows that the Court may or may not determine the
matter, depending on whether the Court is satisfied that
there has
been due compliance with the matters mentioned in the section.
There
cannot be judicial intervention or judicial oversight if the Court is
not involved.
[34]
[61]
The section clearly
provides a mandatory judicial intervention
to ‘ensure that, upon termination of a credit agreement, a
consumer is protected’.
The Court’s role is clearly and
expressly spelt out, just as it is spelt out in other sections of the
NCA dealing specifically
with debt enforcement by repossession and
judgment, notably for instance
s131.
[62] The
meaning of ‘
court
’ in
s130(3)
cannot be
interpreted to impliedly include anybody else performing the
functions therein contained.
[63] The
‘
court
’ in
s130(3)
of the NCA clearly refers to a
Judge sitting in open court.
[64] Insofar
as reliance is placed on
s23
of the
Superior Courts Act, the
section
does not purport to empower the Registrar to grant default judgments
in matters that are reserved for the Court i.e., matters
resorting
under the NCA. To this end,
s23
of the
Superior Courts Act provides
as follows:
”
A judgment by
default may be granted and entered by the registrar of a Division in
the manner and in the circumstances prescribed
in the rules, and a
judgment so entered is deemed to be a judgment of a court of the
Division.”
[35]
[65] Had the
legislature intended that a function in terms of
s130(3)
could or
should be performed by anyone else, as opposed to the Court, the
section would have provided for that in express terms.
[66] There is
no indication nor justification for the suggestion that the
legislature intended “
court
” as used in
s130(3)
to
have a different meaning from what is usually understood when
reference is made to a court or that it must be read to include
that
the functions may be exercised by another person i.e., the Registrar.
[67]
Following the reasons set out above, the reasoning in
Mollentze
that lead the Court to conclude that the Registrar should be
competent to grant default judgments in matters resorting under the
NCA is not consonant with the legislative intent and clear meaning of
s130(3).
[36]
[68] It is
thus clear that the reasoning in
Mollentze
, to the effect that
the consumer’s rights would be protected should the Registrar
grant a default judgment because the consumer
is entitled to apply
for rescission of that judgment at which juncture the Court will
consider the matter, is not consistent with
the legislative intention
of
s130(3).
The debt enforcement provisions in the NCA, and
specifically the provisions of
s130(3)
are by design intended to be
proactive and the obligation for judicial intervention before the
matter can be heard is reserved
for the Court as is determining the
matter thereafter. The fact that a consumer may apply for rescission
after the default judgment
was granted without the Court’s
judicial intervention prior to the judgment, is reactive. The
legislature intends the Court
to intervene (judicial oversight)
before a judgment is granted, not thereafter.
[69] In the
premises the Registrar did not have the authority and was thus not
competent to grant the default judgment,
since the matter was
governed by the provisions of the NCA.
[70]
The
matter of costs remains for consideration. The issue of costs is
truly within this court's discretion.
[37]
The default practice in litigation is that costs ordinarily follow
the result. For the reasons that follow it would be appropriate
in
this matter that each party bears his/its own costs.
[71]
There was an ill-conceived attempt by the applicant to introduce
further documents into evidence by appending the
same to the heads of
argument filed on his behalf. Conduct of this nature is unacceptable
and
disapproval of the applicant’s conduct
finds expression in the cost order. I record that the counsel who
appeared before me
was not responsible for drafting of the heads of
argument.
[72] In
addition, I take into consideration that the first respondent
followed the practice that governed applications
for default
judgments in matters resorting under the NCA in this Division at the
time. Due to the differing views of courts regarding
the competency
of the Registrar to grant default judgments in matters resorting
under the NCA, the first respondent’s opposition
to the
application was not unreasonable in the circumstances.
[73] For the
reasons mentioned above I make the following order:
1.
The default judgment and/or order granted
by the Registrar of the Court against the applicant under case number
4526/2021
on 3 November 2021 be and is
rescinded.
2.
Any executions steps taken pursuant to the
above order be and is rescinded and set aside.
3.
The 2014 Mercedes Benz E200 (W212) motor
vehicle with engine number: [....] and chassis/VIN number: [....]
shall immediately after
issue of this order be released and returned
to the applicant by the second respondent.
4.
Each party is to pay their own cost of
these proceedings.
N SNELLENBURG, AJ
APPEARANCES
On behalf of the
Applicant:
Adv.
Z Nyezi
Instructed
by:
Gcasamba
Attorneys Inc,
Bloemfontein
On behalf of the first
respondent:
Adv. K
Nhlapo-Merabe
Instructed
by:
Strauss
Daly Attorneys,
Bloemfontein
[1]
Nkata
v FirstRand Bank Ltd
2016
(4) SA 257 (CC) (2016 (6) BCLR 794; [2016] ZACC 12).
[2]
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012
(5) SA 142
(CC)
(2012 (8) BCLR 785
;
[2012] ZACC 11)
[3]
Kubyana
v Standard Bank of SA Ltd
2014
(3) SA 56 (CC) (2014 (4) BCLR 400; [2014] ZACC 1).
[4]
Lodhi
2 Properties Investments CC and Another v Bondev Developments (Pty)
Ltd
2007 (6) SA 87
(SCA) ([2007] ZASCA 85) paras 25 – 27.
[5]
Also s
ee
Freedom
Stationery (Pty) Ltd and Others v Hassam and Others
2019 (4) SA
459 (SCA); (921/2017)
[2018] ZASCA 170
(30 November
2018) para 18 and
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) ([2003] 2 All SA 113; [2003] ZASCA 36).
[6]
Ferris
and Another v FirstRand Bank Ltd
2014
(3) SA 39
(CC) para 13. The requirements for rescission in terms of
common law are trite. The applicant must show good cause by (a)
giving
reasonable explanation of default; (b) showing that
application made bona fide; and (c) showing bona fide defence to
plaintiff's
claim which prima facie has some prospect of success.
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) ([2003]
2 All SA 113
;
[2003] ZASCA 36):
dictum in
para 11.
[7]
Para 22.3 above.
[8]
Ibid. Para 22.3 above.
[9]
Fn
1 above.
[10]
Mollentze
above at para 65.
[11]
Fn 1 above.
[12]
F
n
1 above.
[13]
Nkata
above
at para 75.
[14]
University
of Stellenbosch Legal Aid Clinic and Others v Minister of Justice
and Correctional Services and Others
2016 (6) SA 596
(CC)
(2016 (12) BCLR 1535
; (2016) 37 ILJ 2730;
[2016] ZACC 32
[
University
of Stellenbosch Legal Aid Clinic
].
[15]
Magistrates’ Court Act 32 of 1944.
[16]
University
of Stellenbosch Legal Aid Clinic
supra
at note 4.
[17]
The first concurring majority judgment: Cameron J (Mogoeng CJ,
Moseneke DCJ, Bosielo AJ, Froneman J, Khampepe J, Madlanga J,
Mhlantla J, Nkabinde J and Zondo J concurring); the second
concurring majority judgment: Zondo J (Mogoeng CJ, Moseneke DCJ,
Bosielo AJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Mhlantla
J and Nkabinde J concurring).
[18]
Section 3
of the
National Credit Act.
[19]
Section 129(1)
provides:
'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 plan to
bring
the payments under the agreement up to date; and
(b)
subject to
section 130(2)
, may not commence any legal proceedings to
enforce the agreement before —
(i)
first providing notice to the consumer, as contemplated in paragraph
(a),
or in
section 86(10)
, as the case may be; and
(ii)
meeting any further requirements set out in
section 130.'
[20]
Sebola
supra
at para 45.
[21]
Section 130(4)
provides:
'In any proceedings
contemplated in this section, if the court determines that—
(a)
the credit agreement was reckless as described in
section 80
, the
court must make an order contemplated in
section 83
;
(b)
the credit provider has not complied with the relevant provisions of
this Act, as
contemplated in subsection (3)(u), or has approached
the court in circumstances contemplated in subsection (3)(c) the
court must
—
(i)
adjourn the matter before it; and
(ii)
make an appropriate order setting out the steps the credit provider
must
complete before the matter may be resumed;
(c)
the credit agreement is subject to a pending debt review in terms of
Part D of Chapter
4, the court may —
(i)
adjourn the matter, pending a final determination of the debt review
proceedings;
(ii)
order the debt counsellor to report directly to the court, and
thereafter
make an order contemplated in section 85(b); or
(iii)
if the credit agreement is the only credit agreement to which the
consumer is
a party, order the debt counsellor to discontinue the
debt review proceedings, and make an order contemplated in section
85(b);
(d)
there is a matter pending before the Tribunal, as contemplated in
subsection (3)(b),
the court may —
(i)
adjourn the matter before it, pending a determination of the
proceedings before
the Tribunal; or
(ii)
order the Tribunal to adjourn the proceedings before it, and refer
the matter
to the court for determination; or
(e)
the credit agreement is either suspended or subject to a debt
re-arrangement order
or agreement, and the consumer has complied
with that order or agreement, the court must dismiss the matter.'
[22]
Section 172(1) provides:
'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.'
[23]
University
of Stellenbosch Legal Aid Clinic
supra
at note 4.
[24]
Camps
Bay Ratepayers' & Residents' Assoc v Harrison
2011
(4) SA 42
(CC)
(2011 (2) BCLR 121
;
[2010] ZACC 19)
para 28-30 and
Pretoria
City Council v Levinson
1949
(3) SA 305
(A) at 316 – 317.
[25]
Minister of Mineral Resources v Sishen Iron Ore Co (Pty) Ltd
2014
(2) SA 603
(CC) para 40; Fraser v Absa Bank Ltd (National Director
of Public Prosecutions as Amicus Curiae)
[2006] ZACC 24
;
2007 (3) SA 484
(CC)
para 43.
[26]
See Mistry v Interim Medical and Dental Council of South Africa and
Others
1998 (4) SA 1127
(CC) paras 17 – 18.
[27]
Chisuse
v D-G, Dept of Home Affairs
2020
(6) SA 14
(CC);
(2020 (10) BCLR 1173
;
[2020] ZACC 20)
para
47;
Cool Ideas 1186 CC v Hubbard and Another
2014 (4) SA
474
(CC) para 28.
[28]
Jaga v
Dönges NO and Another; Bhana v Dönges NO and Another
,
1950 (4) SA 653
(A) at 662G - 663A and referred to with approval in
the minority concurring judgment in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
2004
(4) SA 490
(CC);
(2004 (7) BCLR 687
;
[2004] ZACC 15)
para 89.
[29]
Boost
Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd
2015
(5) SA 38
(SCA) ([2015] ZASCA 93) para 13;
Road
Accident Fund v Monjane
2010
(3) SA 641
(SCA) para 12;
Marine
& Trade Insurance Co Ltd v Workmen's Compensation
Commissioner
1972
(1) SA 535
(N) at 538D.
[30]
FirstRand
Bank Limited t/a Wesbank v Davel
(1229/2018)
[2019]
ZASCA 168
(29
November 2019).
[31]
Superior
Courts Act 10 of 2013
.
[32]
Civil
Procedure in the Superior Courts (Electronic version), Derek Harms,
last updated March 2022 – SI 73 (product
developer:
Tiger Chetty) - discussion of the Uniform Rules of Court Uniform,
Rule 1, Definitions.
[33]
Pretoria Portland Cement Co Ltd and Another v Competition Commission
and Others
2003 (2) SA 385
(SCA) para 40.
[34]
University
of Stellenbosch Legal Aid Clinic, supra
(third
judgment by Zondo J) at para 203: '….
.
I also conclude that under the Act there are cases where the court
authorises the issue of emoluments attachment orders and
there are
cases where emoluments attachment orders are issued without any
court intervention.
This
means that there is judicial oversight in those cases where it is
the court that authorises the issuing of emoluments attachment
orders but there is no judicial oversight in those cases where
emoluments attachment orders are issued without any prior
intervention
of the court
.
I am, therefore, of the view that, to the extent that the Act makes
provision for the latter category of cases, it is inconsistent
with
s 34 of the Constitution and is, therefore, constitutionally
invalid.’ [Emphasis added]
[35]
Rule 31(5) provides:
‘
(a) Whenever a
defendant is in default of delivery of notice of intention to defend
or of a plea, the plaintiff, who wishes to
obtain judgment by
default, shall where each of the claims is for a debt or liquidated
demand, file with the registrar a written
application for judgment
against such defendant: Provided that when a defendant is in default
of delivery of a plea, the plaintiff
shall give such defendant not
less than five days' notice of the intention to apply for default
judgment.
(b) The registrar may-
(i)
grant judgment as requested;
(ii)
grant judgment for part of the claim only or on amended terms;
(iii) refuse
judgment wholly or in part;
(iv) postpone the
application for judgment on such terms as may be considered just;
(v)
request or receive oral or written submissions;
(vi) require
that the matter be set down for hearing in open court:
Provided that if the
application is for an order declaring residential property specially
executable, the registrar must refer
such application to the court.
(c) The registrar shall
record any judgment granted or direction given.
(d)
Any party dissatisfied with a judgment granted or direction given by
the registrar may, within 20 days after such party has
acquired
knowledge of such judgment or direction, set the matter down for
reconsideration by the court.’
[36]
Mollentze,
para 41, 57 and 65.
[37]
Mkhatshwa and Others v Mkhatshwa and Others
2021 (5) SA 447
(CC) para 17 and footnote 12.