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[2021] ZASCA 156
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Bayport Securitisation Limited and Another v University of Stellenbosch Law Clinic and Others (507/2020) [2021] ZASCA 156; 2022 (2) SA 343 (SCA) (4 November 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:
507/2020
In the matter
between:
BAYPORT SECURITISATION
LIMITED
FIRST APPELLANT
LAW SOCIETY OF SOUTH
AFRICA
SECOND APPELLANT
and
UNIVERSITY OF STELLENBOSCH LAW
CLINIC
FIRST RESPONDENT
SUMMIT FINANCIAL PARTNERS (PTY)
LIMITED
SECOND RESPONDENT
JENINA MARY
MATTHYS
THIRD RESPONDENT
SKHUMBUZO RICHARD
KHUMALO
FOURTH RESPONDENT
FRANS
SAULUS
FIFTH RESPONDENT
ALBERT ROBERT
KLEINSMITH
SIXTH RESPONDENT
GLADYS SEIKGOTLA
JANTJIES
SEVENTH RESPONDENT
ESTER
KORDOM
EIGHTH RESPONDENT
SARAH FELICITY
VISSER
NINTH RESPONDENT
EDGAR
ARNOLDS
TENTH RESPONDENT
PATRICK MOEMEDI
TLADI
ELEVENTH RESPONDENT
LEBOGANG VICTOR
MOKATE
TWELFTH RESPONDENT
Neutral citation:
Bayport Securitisation Limited and
Another v University of Stellenbosch Law Clinic and Others
(Case
no 507/2020)
[2021] ZASCA 156
(4 November 2021)
Coram:
PONNAN, MAKGOKA and GORVEN JJA and PHATSHOANE and
MOLEFE AJJA
Heard:
07 September 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’
legal representatives via email. It has been published on the Supreme
Court of Appeal website and released to SAFLII. The date
and time for
hand-down is deemed to be 9h45 on 4 November 2021.
Summary:
National Credit Act 34 of 2005
–
s 103(5)
read with
s 101(1)
(g)
–
whether collection costs as defined includes all legal costs incurred
in enforcing credit agreement – whether
s 103(5)
applies for as
long as the consumer remains in default irrespective of whether
judgment has been granted –
c
ollection
costs, as defined and referred to in
s 101(1)
(g)
– to be given its common law meaning by drawing
a
distinction between the collection fees charged by an attorney prior
to litigation and the costs awarded in an action to recover
the debt
–
legal costs
commence with a summons and do not as a general rule allow for
pre-litigation costs to be recovered from the losing
litigant –
the judgment entered is for the capital sum fixed at a particular
date together with interest – thus
s 103(5)
does
not apply post-judgment – appeal upheld.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Hack AJ, sitting as the court of first
instance):
1
The appeal of the first and second appellants is upheld.
2
The order of the high court is set aside and in its place is
substituted the following:
‘
The
application is dismissed.’
JUDGMENT
Phatshoane AJA (Ponnan, Makgoka and Gorven JJA and Molefe AJA
concurring):
[1]
This appeal concerns the construction to be placed on ‘collection
costs’
as defined in
s 1
and whether collection costs in
s
101(1)(
g
), as read with s 103(5), of the
National
Credit Act
34 of 2005 (the NCA) includes all legal
costs pre- and post- judgment.
[2] T
he
NCA
introduced
profound
changes to the South African credit landscape.
It
ushered in a host of
new
forms of protection for consumers. These include the regulation of
the consumer credit industry, prohibiting credit providers
from
extending ‘reckless credit’ and mechanisms to assist
over-indebted consumers to manage their debt burden.
[1]
While the introduced reforms are mostly laudable,
the inept and inelegant drafting has, on occasion, been a cause for
concern.
[2]
[3]
In
Nkata
v FirstRand
Bank Ltd
,
[3]
Moseneke
DCJ remarked that the NCA infuses
constitutional
considerations into the culture of borrowing and lending between
consumers and credit providers. He observed:
‘
Credit
givers serve a beneficial and indispensable role in advancing the
economy and sometimes social good. They too have not only
rights but
also responsibilities. They must act within the constraints of the
statutory arrangements. That is particularly so when
a credit
consumer honestly runs into financial distress that precipitates
repayment defaults. The resolution of the resultant dispute
must bear
the hallmarks of equity, good faith, reasonableness and equality. No
doubt, credit givers ought to be astute to recognise
the imbalance in
negotiating power between themselves and consumers. They ought to
realise that at play in the dispute is not only
the profit motive,
but also the civilised values of our Constitution.’
[4]
While
the object of the NCA is largely to protect consumers, the interests
of creditors must also be safeguarded and should
not be
overlooked.
[5]
[4]
The appeal by Bayport Securitization RF Limited (Bayport), a company
providing credit
(small and intermediate) to consumers, and the Law
Society of South Africa (LSSA), the first and second appellants
respectively,
against a judgment of the Western Cape Division of the
High Court (per Hack AJ), is with the leave of that court. The
University
of Stellenbosch Law Clinic (the Law Clinic) and Summit
Financial Partners (Pty) Ltd (Summit), the first and the second
respondents,
represented the third to twelfth respondents in
application proceedings before Hack AJ. The application cited 47
respondents, which
included Bayport and LSSA.
[5]
The respondents sought and were granted the following three
declaratory orders and
certain consequential relief:
‘
(a)
That collection costs as referred to in section 101(1)(g), as defined
in section 1 and contemplated
in
section 103(5)
of the
National
Credit Act 34 of 2005
, includes all legal fees incurred by the credit
provider in order to enforce the monetary obligation of the consumer
under a credit
agreement charged before, during and after litigation.
(b)
That
section 103(5)
of the
National Credit Act 34 of 2005
applies for
as long as the consumer remains in default of his/her credit
obligations, from the date of default to the date of collection
of
the final payment owing, in order to purge his default, irrespective
of whether judgment in respect of the default has been
granted or not
during this period.
(c)
That legal fees, including fees of attorneys and advocates, in as
much as they comprise
part of collection costs as contemplated in
section 101(1)(g)
of the
National Credit Act 34 of 2005
may not be
claimed from a consumer or recovered by a credit provider pursuant to
a judgment to enforce the consumer’s monetary
obligations under
a credit agreement, unless they are agreed to by the consumer or they
have been taxed.’
Paragraphs
(d) to (f) of Hack AJ’s order deal with the consequential
relief for the appointment of an expert to recalculate
the
outstanding amounts of certain emoluments attachment orders (EAO)
obtained against the third to twelfth respondents and for
the
repayment of any amount found to have been due and owing pursuant to
the recalculation.
[6]
The appeal by the LSSA is against the whole of the judgment and order
of the high
court, whereas Bayport’s appeal is directed solely
against the declaratory relief granted in para (b) on the basis, in
essence,
that if that paragraph of the order does not withstand
scrutiny, then the rest of the relief granted likewise cannot stand.
[7]
Central to the declaratory orders granted by the high court is the
definition of collection
costs. According to
s 1
of the NCA,
‘collection costs’ means:
‘
[A]n
amount that may be charged by a credit provider in respect of
enforcement of a consumer’s monetary obligations under
a credit
agreement, but does not include a default administration charge’.
The NCA
limits the extent to which a consumer may be held liable to a credit
provider under a credit agreement. In terms of
s 101(1)
of the NCA, a
credit agreement may not require payment by the consumer of any money
or other consideration, except: the principal
debt (subsec
(a)
);
[6]
an initiation fee (subsec
(b)
);
[7]
a service fee (subsec
(c)
);
[8]
interest (subsec
(d)
);
[9]
cost of any credit insurance (subsec
(e)
);
[10]
default administration charges (subsec
(f)
);
[11]
and collection costs (subsec
(g)
).
[12]
[8]
The NCA prescribes in
s 103(5)
that the aggregate interest, fees and
charges, including collection costs referred to in
s 101(1)(
a
)
to (
g
), which accrue during the time that the consumer is in
default, may not exceed the unpaid balance of the principal debt at
the
time of the default. It provides:
‘
Despite
any provision of the common law or a credit agreement to the
contrary, the amounts contemplated in
section 101
(b)
to
(g)
that accrue during the time that a consumer is in default under the
credit agreement may not, in aggregate, exceed the unpaid balance
of
the principal debt under that credit agreement as at the time that
the default occurs.’
[9]
The high court favoured an interpretation that in terms of
s
101(1)(
g
) collection costs included all legal fees incurred by
the credit provider to enforce the monetary obligations of the
consumer.
Those included the costs incurred: (a) prior to the
commencement of litigation; (b) post the commencement of litigation,
but pre-judgment
and (c) post-judgment. It was thus construed to
include all legal fees incurred through the employment of attorneys
and advocates,
as well as the execution of the judgment.
[10]
Counsel for the respondent contended that particularly in the context
of microloans
s 103(5)
was important, as it serves to protect the
consumer from collection costs far exceeding the amount that was
initially borrowed.
He argued that by necessary implication legal
fees had to be included in the definition of collection costs. The
credit agreements,
he argued, invariably make provision for costs on
an attorney and client scale. In each instance, where these costs are
to be recovered
from consumers, the credit providers are seeking an
enforcement of the credit agreement. In this regard, counsel placed
reliance
on
N
kata,
where reference was
made to ‘reasonable legal costs of enforcing the agreement’.
Accordingly, so it was contended,
Nkata
is
dispositive of the appellants’ contentions.
[11]
For a proper understanding of the context in which reference was made
to ‘reasonable legal
costs of enforcing the agreement’ in
Nkata
,
an analysis of that case is necessary. In the main,
Nkata
concerned
the correct interpretation of subsecs 129(3)(
a
) and
129(4)(
b
) of
the NCA. At any time before a credit provider has cancelled
the
credit agreement,
s 129(3)
of the NCA permits consumers who have
fallen into arrears, and face impending debt-enforcement procedures,
to remedy their default
or 'reinstate' the credit agreement by paying
the full arrear amounts, along with the credit provider's permitted
default charges
and reasonable costs of enforcing the agreement.
Section 129(4)(
b
)
precludes reinstatement 'after . . . the execution of any other court
order enforcing that agreement'.
[12]
Ms Nkata, a consumer, who was in default of a mortgage loan
agreement, paid all overdue instalments
but did not make separate
payment of the 'costs of enforcing the agreement' which the
credit provider, FirstRand Bank Ltd
(the bank), had debited to her
account. She made this payment when the bank had already taken
judgment against her and had obtained
a writ of execution against the
mortgaged property, but before (as a result of further arrears) the
bank attached and had the mortgaged
property sold in execution.
[13]
The minority decision
took
the view that the credit agreement between Ms Nkata and the bank was
not reinstated in terms of
s 129(3)
because, whilst it was so that
she paid all amounts that were overdue, she did not pay the
reasonable costs of enforcing the
agreement. By adding the costs
to the capital debt, the bank had lent Ms Nkata money, thereby
prescribing the manner in which
it expected to receive payment. But
the bank's action in postponing its claim for payment did not mean
that she had paid those
costs.
The majority held
that properly construed
s 129(3)
did not preclude the reinstatement
of a credit agreement where the consumer had paid all the amounts
that were overdue, but had
not been given due notice of reasonable
legal costs — whether agreed or taxed. This was so because the
legal costs would
become due and payable only when they are
reasonable, agreed or taxed and on due notice to the consumer. The
majority found that
the credit agreement was reinstated when Ms Nkata
discharged in full her bond arrears. The bank's legal costs were then
not due
and payable because the bank had not given her notice of the
legal costs, neither had it demanded its payment properly or at all.
Also, the nature and extent of the legal costs had not been agreed to
by Ms Nkata and had not been assessed for reasonableness
by taxation
or other acceptable means. Instead, the bank chose to be the sole
arbiter of the extent of the legal costs and unilaterally
debited the
costs to the bond account of Ms Nkata.
[14]
Nkata
is thus not authority for the proposition that collection costs
referred to in
s 101(1)(
g
),
read with
s 103(5)
, include legal costs. The Constitutional Court was
not required to consider the distinction between collection costs and
litigation
costs or to consider whether the litigation costs form
part of collection costs referred to in
s 103(5).
The costs at issue
in
Nkatha
were costs incurred to enforce the credit agreement through the
institution of legal proceedings (these were costs of the cancelled
sale in execution, as well as the costs of the rescission
application 'as taxed or agreed’, which Ms Nkata had agreed
to
service).
[13]
The Constitutional
Court had no difficulty in concluding that such costs could be
claimed from the consumer provided they were taxed
or agreed between
the parties in the normal course.
[15]
Our courts have over many years drawn a distinction between
collection costs and litigation costs.
The high court reasoned that
those authorities predate the Constitution and are thus not relevant.
It is trite that a
statutory provision
should not be interpreted so as to alter the common law more than is
necessary, unless the intention to do so
is clearly reflected in the
enactment, whether expressly or by necessary implication. It is a
sound rule to construe a statute
in conformity with the common law,
save where and insofar as the statute itself evidences a plain
intention on the part of the
Legislature to alter the common-law.
[14]
As long ago as 1916
in
D & D H Fraser Ltd v
Waller
,
[15]
Innes CJ had occasion to state:
‘
But
the point is that the costs recoverable must be costs of collection.
Collection in the sense in which the word is used….
is
a different process from recovery by action. The assistance of
the Court is invoked after the collector has failed. The
attorney who
conducts the case recovers the money at law, and is remunerated by
the costs awarded him. He cannot claim against
his principal a
commission upon the amount of the judgment; nor can the agent; for
neither of them has collected the debt. And
it would make no
difference should the capacities of collecting agent and attorney
happen to be united in the same individual.
If it were otherwise,
there would be a double charge - costs plus commission - upon the
debtor in every case in which an instrument
of debt containing a
collection clause was sued upon.’
[16]
[16]
Nothing in the NCA
suggests an intention on the part of the Legislature to depart from
that construction. It follows that c
ollection
costs, as defined and referred to in s 101(1)(
g
),
should be given the same meaning as
in
D &
D H Fraser
. That a distinction is to be
drawn between collection costs and legal fees is fortified by the
fact that i
n terms of
the
Superior Courts
Act 10 of
2013
, the
Magistrates’ Courts Act 32 of 1944 (MCA), or the Debt
Collectors Act 114 of 1998 (whichever is applicable to the
enforcement
of the credit agreement)
maximum tariffs are
prescribed.
[17]
[17]
C
osts are awarded to
successful litigants in order to indemnify them for the expense to
which they have been put through, having
been compelled either to
initiate or defend litigation.
The
ensuing legal costs, which courts have a discretion to both award and
determine the applicable scale thereof, flow directly
from, and are
limited to, the litigation.
Owing
to the necessary operation of taxation, such an award is seldom a
complete indemnity. However, that does not affect the principle
on
which it is based.
[18]
The high court failed
to take into account that in terms of the tariff applied by taxing
masters, legal costs are regarded as commencing
with a summons and do
not as a general rule allow for pre-litigation costs to be recovered
from the losing litigant.
[19]
[18] The
respondents’ submission that the NCA puts a maximum limit on
the amount of legal costs that
can be recovered from a consumer would
lead to some glaring absurdities. What militates against such a
construction is that the
award of costs generally involves the
exercise of a judicial discretion. To hold that collection costs
include legal costs would
be to oust or severely fetter the
discretion of a court to make appropriate costs orders, including
where necessary punitive costs
orders. The following example, which
was put to counsel and to which he had no answer, may well illustrate
the point: Assuming
that credit provider A, is forced to institute
proceedings in a magistrates’ court against consumer B.
Judgment is entered
for A. B then prosecutes an appeal to the high
court, which fails. Are the costs of the appeal also to be limited by
the application
of s 103(5)? What if a further appeal is prosecuted
by B to this Court? Imagine if any of the courts form the view that
B’s
conduct in the litigation is deserving of censure, would it
be precluded by virtue of s 103(5) from ordering costs on a punitive
scale? Where, for example, the principal debt is comparatively small
(as most micro loans are), it is not hard to imagine that
the
litigation costs will quickly exceed that amount.
[19]
Had the Legislature intended
collection costs to include legal costs, it could easily have said as
much. T
he language
used by the legislature demonstrates that collection costs were not
intended to include litigation costs. ‘If
the language used by
the lawgiver is ignored in favour of a general resort to “values”
the result is not interpretation
but divination’.
[20]
[20]
It was argued for the respondents that the debt collection procedures
for small loans have no
transparent billing system in that credit
providers or their collecting agents are at large to simply add
untaxed costs to the
outstanding capital sum with no consideration as
to whether the services were provided and the fees reasonable. In
Nkata
,
in the context of s 129(3), it was said that ‘i
f
a credit provider is not obliged properly to quantify and give due
notice of the legal costs to the consumer, the relief s 129(3)
affords to a consumer will be frustrated and become illusory’.
[21]
At
para 148, Nugent AJ, in the minority decision, remarked that p
erhaps
greater transparency in the bank billing system was desirable
‘but that is then a matter for the Legislature to
correct.’
[21]
The stamps, fees, costs and charges in connection with any civil
proceedings in the magistrates'
courts shall, as between party and
party, be payable in accordance with the scales prescribed by the
rules.
[22]
In terms of s 80(3)
of the MCA, payment of costs awarded by the court (otherwise than by
a judgment in default of the defendant's
appearance to defend or on
the defendant's consent to judgment before the time for such
appearance has expired) may not be enforced
until the costs have been
taxed by the clerk of the court.
[23]
Except as
specifically set out in or necessarily implied by the NCA, its
provisions are not to be construed as limiting, amending,
repealing
or otherwise altering any provision of any other Act.
[24]
Section 80(3) of the
MCA has not been amended by the NCA. As I see it, t
he
allegation that excessive costs are being charged in the context of
EAOs, may be a matter for the Legislature. Assuming it to
be true, it
cannot be addressed by a strained interpretation of s 103(5).
[22]
The conclusion that collection costs do not include legal costs may
well be dispositive of the
appeal in its entirety. However, in view
of the fact that the appeal of Bayport was confined to p
ara
(b) of the high court’s order, it may be necessary to turn to
the contentions advanced in that regard. That order is to
the effect
that s 103(5) of the NCA applies for as long as the consumer remains
in default of his or her credit obligations, from
the date of default
to the date of collection of the final payment, irrespective of
whether judgment has been granted.
[23]
The appellants argued that a judgment alters the character of the
debt. By the grant of judgment,
the litigation steps taken to obtain
satisfaction of a judgment, cannot be equated with the collection of
the debt in its original
form. It must follow, they contend, that s
103(5) ceases to be of any force or effect post-judgment because it
can only apply while
the creditor is in default under the credit
agreement. The respondents, on the other hand, contend that the
judgment does not novate
the credit agreement but strengthens and
reinforces the original debt. Thus, the statutory limit in s 103(5)
remains in force even
after judgment.
[24]
That
a
judgment provides judgment creditors with a new cause of action
on which they may sue in another court has been settled by
this Court
in
MV
Ivory
Tirupati.
[25]
The views expressed
in
Eke v
Parsons,
[26]
which concerned a
settlement agreement that had been made an order of court, are
instructive. It was there stated:
‘
The
effect of a settlement order is to change the status of the rights
and obligations between the parties. Save for litigation
that may be
consequent upon the nature of the particular order, the order brings
finality to the lis between the parties; the lis
becomes res judicata
(literally, 'a matter judged'). It changes the terms of a
settlement agreement to an enforceable court
order. The type of
enforcement may be execution or contempt proceedings. Or it may
take any other form permitted by the nature
of the order. . . .’
[27]
[25]
The high court concluded that the judgment of this Court in
Nedbank
[28]
supported its
conclusion that s 103(5) of the NCA endures post judgment.
Nedbank
held:
‘
[38]
. . . Section 103(5) is not a code and embodies no more than a
specific rule applicable to specific circumstances, that is,
to
credit agreements subject to the NCA. It is thus a statutory
provision with limited operation. It seeks not only to amend the
common-law
in
duplum
rule
but also to extend it. It deals with the same subject matter as the
common law rule but this does not mean that it incorporates
all or
any of the aspects of the common law rule. It is a self-standing
provision and must be construed as such.’
[29]
…
‘
[49]
…Once the amounts referred to in s 101(1)
(b)-(g)
that
accrue during the period of default
,
whether or not they are paid, equal in aggregate the unpaid balance
of the principal debt at the time the default occurs, no further
charges may be levied. It is not that a moratorium against payment
is introduced by s 103(5): no amount in respect of the
fees, costs
and charges may 'accrue' any further. Put differently, no
enforceable right to the charges outlined in s
101(1)
(b)-(g)
thereafter
arises. This, it seems, is the meaning of the word used in cases on
the common-law rule. The words of s 103(5)
simply do not allow
for a different construction. . . .’
[30]
(My
emphasis.)
[26]
However, in
Nedbank
,
the court was not called upon to consider whether the statutory limit
in s 103(5) continued to apply to the costs of credit referred
to in
s 101(1)(
b
)
-
(
g
)
after judgment had been granted. A fundamental difference between the
facts in that case and in this is that after a judgment
has been
granted against a consumer usually, save for necessary disbursements
and charges allowed in terms of the relevant tariff,
only interest
accrues on the judgment debt. The remaining charges contemplated in s
101(1)(
b
)
to (
g
)
are thus not post-judgment charges. The judgment entered is thus for
the capital sum fixed at a particular date together with
interest. It
follows that even had it
been
correctly found that s 103(5) found application, it
did
not apply post-judgment.
[27]
In conclusion, the high court’s
interpretation of collection costs in s 1, and its application to ss
101(1)(
g
)
and 103(5) of the NCA, which culminated in the declaratory orders
granted, cannot be supported. As the consequential relief is
contingent upon the declaratory granted, it too must suffer the same
fate.
Accordingly,
the appeal must be upheld.
[28]
On the question of costs, the opposition to this appeal was made
to
advance the interests of vulnerable South Africans on issues of
considerable moment and for the public good. T
he
Law Clinic and the Summit took up the responsibility to represent the
interests of impecunious members of society. They ought
not to be
mulcted in costs.
The
qualified immunity under
Biowatch
[31]
accordingly
applies. There will thus be no costs order in this Court
and in the proceedings before the high court.
[29]
In the result the following order is made:
1
The appeal of the first and second appellants is upheld.
2
The order of the high court is set aside and in its place is
substituted
the following:
‘
The
application is dismissed.’
M V PHATSHOANE
ACTING JUDGE OF
APPEAL
Appearances:
For first
appellant:
ARG Mundell SC (with CL Robertson)
Instructed
by:
Marie-Lou Bester Inc, Johannesburg
Bokwa Attorneys, Bloemfontein.
For the second
appellant:
MA Badenhorst SC
Instructed by:
Rooth & Wessels Inc, Pretoria
Pieter Skein Attorneys, Bloemfontein.
For the first to the
twelfth respondents:
I Jamie SC (with HN De Wet
and DM Lubbe)
Instructed by:
Suné van der Merwe Attorneys, Paarl
Webbers Attorneys, Bloemfontein.
[1]
Sebola v Standard Bank
of South Africa Ltd
[2012]
ZACC 11
;
2012 (5) SA
142
(CC) para 41.
[2]
Du Bruyn No and Others v Karsten
[2018] ZASCA 143
;
2019
(1) SA 403
(SCA) para 1;
Nedbank
Ltd and Others v National Credit Regulator and Another
[2011]
ZASCA 35
;
2011 (3) SA 581
(SCA) para 2.
[3]
Nkata v FirstRand Bank
Ltd
[2016]
ZACC 12
;
2016 (4) SA 257
(CC)
.
[4]
Ibid
para 94.
[5]
Sebola and Another v
Standard Bank of South Africa Ltd and Another
[2012]
ZACC 11
;
2012 (5) SA 142
(CC) para 40.
[6]
Section 101(1)
(a)
reads: ‘the principal debt, being the amount deferred in terms
of the agreement, plus the value of any item contemplated
in section
102’.
[7]
Section 101(1)
(b)
reads: ‘an initiation fee, which –
(i) may
not exceed the prescribed amount relative to the principal debt; and
(ii) must
not be applied unless the application results in the establishment
of a credit agreement with that consumer’.
[8]
Section 101(1)
(c)
reads:
‘
a service fee, which-
(i) in the
case of a credit facility, may be payable monthly, annually, on a
per transaction basis or on a combination of periodic
and
transaction basis; or
(ii) in
any other case, may be payable monthly or annually; and
(iii) must
not exceed the prescribed amount relative to the principal debt’.
[9]
Section 101(1)
(d)
reads: ’interest, which –
(i) must
be expressed in percentage terms as an annual rate calculated in the
prescribed manner; and (ii) must not exceed the
applicable maximum
prescribed rate determined in terms of section 105.’
[10]
Section 101(1)
(e)
reads: ‘cost of any credit insurance provided in accordance
with section 106’.
[11]
Section 101(1)
(f)
reads: ‘default administration charges, which-
(i) may
not exceed the prescribed maximum for the category of credit
agreement concerned; and
(ii) may
be imposed only if the consumer has defaulted on a payment
obligation under the credit agreement, and only to the extent
permitted by Part C of Chapter 6; …’.
[12]
Section 101(1)
(g)
reads: ‘collection costs, which
may not exceed the prescribed maximum for the category of credit
agreement concerned and
may be imposed only to the extent permitted
by Part C of Chapter 6’.
[13]
In
para
10 of
Nkata
the Court noted that ‘. . . The bank describes these as being
for the attorney's fees and counsel's day fee in Ms Nkata's
unsuccessful rescission application, which costs were covered by the
parties' settlement agreement. This was in addition
to a
globular amount of R9050, debited to the mortgage bond account in
October 2010, for fees that the bank had incurred in pursuing
the
cancelled execution and sale’. The R9 050 was for summons,
judgment, writ, attachment and first sale in execution,
including
VAT, disbursements and sheriff's fees.
[14]
Footnote 2 para 38.
[15]
D & D H Fraser Ltd v
Waller
1916 AD 494.
[16]
Ibid
at
501.
[17]
In terms of
s
51
of
the
Superior Courts
Act
10 of 2013
the
rules applicable to the various high courts immediately before the
commencement of that section remain in force to the extent
that they
are not inconsistent with the Act. Rule 22 of the R
ules
of the Constitutional Court as published in Government Notice R1675
in
Government
Gazette
25643
of 31 October 2003 provides for t
axation
of costs and attorneys’ fees; Rules 17 and 18 of R
ules
Regulating the Conduct of the Proceedings of the SCA
as
promulgated in Government Notice R1523 of 27 November 1998 provides
for taxation of costs and attorneys’ fees.
Rule
69 of the Uniform Rules of the high court provides tariff of
maximum fees for advocates on party and party basis in
certain civil
matters and rule 70 applies to taxation and tariff of fees of
attorneys. See also s 80 of the MCA read with rule
33 of the Rules
Regulating
the Conduct of the Proceedings of the Magistrates' Courts published
under GN R740 in
GG
33487
of 23 August 2010 and
regulations
made in terms of the
National Credit Act, 2005
as published under
GNR. 489 of 31 May 2006.
[18]
Texas Co (SA) Ltd v Cape
Town Municipality
1926
AD 467
at 488.
[19]
Footnote 15 at 501 and 505.
[20]
S v Zuma
[1995]
ZACC 1
;
1995 (2) SA 642
(CC) para
18.
[21]
Footnote 3 para 125.
[22]
Section 80(1) of the
Magistrates’
Courts Act 32 of 1944 (MCA).
[23]
Ibid
section
80(1)(3).
[24]
Section 2(7) of the NCA.
[25]
MV
Ivory
Tirupati: MV Ivory Tirupati
v
Badan Urusan Logistik (aka Bulog)
[2002]
ZASCA 155
;
2003 (3) SA 104
(SCA) para 31.
[26]
Eke v Parsons
[2015] ZACC 30; 2016 (3) SA 37 (CC).
[27]
Ibid
para 31.
[28]
Footnote
2.
[29]
Ibid
para 38.
Cited footnotes excluded.
[30]
Ibid
para 49.
[31]
Biowatch
Trust
v Registrar Genetic Resources
[2009]
ZACC 14
;
2009 (6) SA 232
(CC) paras 23-24.