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[2015] ZAECMHC 39
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Nyoka v Trans-Union Credit Bureau (Pty) Ltd (2525/2013) [2015] ZAECMHC 39 (12 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
In
the matter between:
CASE
NO: 2525/2013
NONKQUBELA
NYOKA
..............................................................................
Applicant
And
TRANS-
UNION CREDIT BUREAU ( Pty)
Ltd
......................................
Respondent
JUDGMENT
PAKADE
ADJP.
[1]
The applicant seeks a declarator and a mandamus against the
respondent .
[2]
The application is opposed by the respondent and has deposed to an
answering affidavit which is filed of record .
[3]
The relief sought by the applicant is translated to an information
required by the applicant kept by the respondent which constituted
the adverse credit report against her to Ned Bank Ltd . The applicant
required this information in ord
er to inspect
and
challenge it .
[4]
The applicant is an
incola
of
this Court , being a resident of the Eastern Cape in Mthatha . The
respondent is a
peregrines
of this Court , a company registered
in Johannesburg
according
to law, but carries on its business throughout South Africa .
[5]
In the hearing of this application two conflicting decisions of this
Court on jurisdiction came to the fore and
on invitation by the Court jurisdiction point was
argued
and
the
argument was
subsequent
ly
supplement
ed
by
heads
of argument filed at the request of the Court , for which I am
indebted to
both
counsel
.
I
must first dispose of the issue of jurisdiction before I attend to
the merits , if needs be . The law recognized as far back as
1911
[1]
,) that our courts will
not exercise jurisdiction in a matter unless effect can be given to
its judgment.
[2]
. This
principle has always been taken as the basis for the rule that the
court will not entertain an action against a peregrinus
unless either
his person or his property is before the court or the cause of action
arose wholly within the jurisdiction of the
court . This principle
has been applied by the various courts country wide and their
judgments have been endorsed by the Supreme
Court of Appeal and the
Constitutional Court . In the Supreme Court of Appeal it was applied
by Harms JA in Tsung v Industrial
Development Corporation Ltd
[3]
.
He made the following dictum with which I agree:
"
If the defendant is a peregrinus and whether or not the court has
jurisdiction over the cause , eg because the cause of action
arose
within the jurisdiction or jurisdiction exists ratione delictus
contractus , an attachment is essential for the exercise
of
jurisdiction . A recognised ratio jurisdictionis will not do ".
The
Tsung judgment involved a claim against two foreign peregrini .
[6]
The legislative source of jurisdiction is section 21(1) of the
Superior Courts Act , 2013
[4]
.
This Section is in identical terms with the repealed section 19(1) of
the Supreme Court Act , 1959
[5]
.
Section 21(2) provides in peremptory language that :
"
A Division has jurisdiction over all persons residing or being in ,
and in relation to all causes arising and all offences
triable within
its area of jurisdiction and over all other matters of which it may
according to law take cognizance ...........".
Buqwana
v Capitec and Another
[6]
and
Zokufa v Compuscan
[7]
.
[7]
In what follows , I will refer to the judgment of Buqwana v Capitec
and Another as " Buqwana " and the judgment of
Zokufa v
Compuscan as " Zokufa".
Without more
ado, I find that
these
two judgments
are
not in conflict but are distinguishable on the basis of the nature of
claim.
[
8]
In each of the judgments the applicants sought a
declarator and
a
mandamus
.
I paraphrase the relief sought in each of the
m
.
In Boqwana
,
the declarator sought was that
the reporting of the default data of the applicant to the 2nd
respondent (Credit Bureau ) be declared
unlawful and be set aside ;
that the retention by the Credit Bureau of the said information in
its record be declared unlawful
and set aside and for a
mandamus directing the Credit Bureau to remove the said adverse
credit information from its record
.
It is clear to me that th
e
main relief sought was the mandamus, namely ," to remove
the adverse credit information in the records of the respondent
"
and that removal was take place outside the area of jurisdiction of
this Court .
[
9
]
It is not necessary to repeat the reasoning that informed Buqwana
judgment. As to whether a court has jurisdiction or not in a
matter
depends on the nature of the proceedings and the nature of the relief
claimed or both . As said in the judgment ( paragraph
9 ) ,the
application of this principle is based on the power of the court ,
not only to grant the relief claimed but also to effectively
enforce
its decision directly in the area of its jurisdiction . Even
resorting to section 26 of the Supreme Court Act to enforce
a
judgment outside the court's area of jurisdiction refer
ed
to
judgment or orders that were granted by a court that has
jurisdiction
.
Estate
Agents Board v Lek
[8]
. The court cannot
g
rant
effective
enforceable and executable
order for mandamus forcing
the
Credit Buearu which resides outside its area of jurisdiction
to erase, from its records which are also outside the jurisdiction of
the court , adverse information concerning the applicant
.
The
information which the applicant sought to be removed was stored in
the respondent's records in Johannesburg . The applicant
had to
exercise his right to claim the removal of the adverse credit
information in Johannesburg .
That is where the cause of
action had wholly arisen .
The adverse credit
information was not to be removed from the respondent' s records in
Mthatha .
There were no adverse records of the applicant in
Mthatha .
If it were so the court in Mthatha would
have jurisdiction to order it to be removed and its order would be
enforceable.
[
10
]
In Zokufa , as in this application, the nature of the mandamus sought
by the applicant was for the Court to direct the Credit
Bureau to
furnish to the applicant information which sourced the adverse credit
report . The Zokufa judgment concerns the delivery
of adverse credit
reports, files or information to the consumer
,
wherever
he
may
be in the country. A registered Credit Bureau has an obligation to
issue a report to any person who requires it for a prescribed
purpose
or a purpose contemplated in the National Credit Act (hereinafter
referred to as “Act”)
[9]
.
The
applicant in Zokufa , as in casu , required the files , adverse
credit report or information for a purpose contemplated
in the
Act , to inspect it .
[10]
Nothing contained in the Act prohibits a consumer from requiring
information and inspecting it away from the place in which it
is kept
.On this premise , the information stored by the credit bureau can be
made available to the consumer wherever the consumer
requires it in
terms of the Act . This view finds support in section 65 in terms
whereof the consumer has a right to receive documents
and in my view
this includes a right to receive information stored in documents. The
section provides that
e
very
document that is required to be delivered in terms of the Act must be
delivered in the prescribed manner and in the absence
of a prescribed
manner , in the manner provided for in sub- section (2) (a) and (b) .
I agree with Alkema J that the Act contemplated
delivery of the
report to the consumer in person; by facsimile; or by printable web-
page.
[
11
]
In a nutshell, the
ratio decidendi
of the Zokufa judgment is that the credit bureau has an obligation to
deliver information to the consumer when
he/she
requires
it and that delivery should be made to the consumer in person or by
email or by facsimile or printable web page . The nature
of the
proceedings required that the court should assume jurisdiction over
the
peregrines
credit bureau. In my view, anything further said in the judgment is
orbiter.
[
12
]
By operation of the precedent system, the Zokufa judgment is binding
on me since I can find
nothing
convincing
that it is clearly wrong and I will follow it. When highlighting its
distinguishing feature from Buqwana I had also observed
that the
relief sought there is the same as the relief sought in casu
in so far as declarators are concerned but not the mandamus. It is
apparent that the relief which was sought and granted by Alkema
J in
Zokufa is the same as the relief sought by the applicant in the
present application. She seeks the following relief:
"
(a)
That the respondent' s failure to provide applicant with the full
contact particulars of the sources of adverse/ default
information , especially the postal and physical addresses
, appearing in Section B, Part 4 of the applicant' s credit
report ,
be and is hereby declared unlawful , invalid and of no force and
effect;
(b)
That the respondent be ordered to forthwith provide the applicant
with the full contact particulars of the sources of adverse/default
information , especially postal and physical addresses appearing in
Sectio B , Part 4 of the applicant s credit report
(
Marais IT Credit and ITCH Business ;
(c)
That the respondent pay costs of the application.
"
[1
3
]
This
relief is supported by the following factual situation .
The
applicant applied for credit facility from Ned Bank Ltd but her
application was declined
. The bank
refused
to disclose the particulars of the company which had blacklisted her
with the respondent. She
,
thereafter
gave instructions to Attorneys, Zono and Associates
,
to
request her credit profile from the respondent. The correspondence
exchanged between the parties started with a letter dated
9 September
2013 written by applicant's Attorneys to the respondent. In the
letter
,
it
is written on behalf of the applicant that she did not know the
identity of the person who had blacklisted her .This is coupled
with
a request that the respondent furnishes to the applicant a copy of
the credit records , file and information as well as the
originating
sources thereof . On 10 September 2013 the respondent communicated
with the applicant's Attorneys in writing informing
them to “get
free TransUnion Credit Report on
their website,
www.mytransunion.co.za
".
It would appear that the credit report was found to contain adverse
credit information against the applicant hence the attorneys
wrote
another letter to the respondent on 10 October 2013
,
again
requesting the same information . The required information was not
furnished. On 11 November 2013
,
the
respondent was served with the application and on 10 December 2013 i
t
registered
its intention to oppose the application.
[14]
In its answering affidavit, the respondent stated that the National
Credit Act imposes no obligation on the credit bureaux
to reflect the
contact details of the source of each item of adverse credit
information appearing on a credit report. The respondent
further
stated that such an obligation is only imposed in relation to "
enquiries " submitted by entities who are lawfully
entitled to
access a consumer's credit report ( these "enquiries" do
not fall within the category of adverse credit information
which is
in issue in this application), so goes the contention of the
respondent . This was easy for the respondent to say in
the
answering affidavit than in the first applicant’s
letter requiring the information
.
[15]
As said by Alkema J in Zokufa and alluded to
by me
above
, the credit bureau has an obligation to deliver credit
information to a consumer who requires it and the consumer has
a
right to receive credit information kept by the credit bureau . I
observe that unnecessary costs have been incurred on a relatively
simple matter to which the respondent should have reacted positively
from receipt of the first letter and furnished the required
information. When Zono Attorneys communicated with the respondent
requiring information, they were communicating as “entities
lawfully entitled to access a consumer's credit report
"
.
They were acting on behalf of the applicant and were therefore
entitled to the information . In my view, it is the
respondent
,
rather than the applicant's Attorneys as
contended for by the respondent, whose conduct led to this
unnecessary application .
[16]
Without more ado , the applicant must succeed with costs to follow
the event .
Order:
The
following Order is made:
1.
That the respondent is ordered to deliver to the applicant, through
her attorneys , AS Zono and Associates , in terms of the
provisions
of the National Credit Act , 34 of 2005 , without charge , all
files, reports or information concerning the applicant
which
constitute adverse credit report to Ned Bank Ltd and delivered by the
respondent to the said Bank;
2.
That respondent is ordered to pay the costs of the application.
________________
LP
Pakade
ACTING
DEPUTY JUDGE PRESIDENT:MTHATHA
For
the Applicant:
Mr N . Hinana
Instructed
by:
A.S. Zono & Associates
For
Respondent:
Mr BD Hitchings
Instructed
by:
Keightley Incorporated
Date
of delivery:
12 February 2015
[1]
Steytler
NO v Fitzegerald 1911 AD
[2]
Forbes
v Uys 1933 TPD at 369
[3]
[2006]
ZASCA 28
; 2006 (4)SA 177 (SCA) at par 3
[4]
Act
10 of 2013
[5]
Act
59 of 1959
[6]
626/08
DELIVERED ON 29 January 2009
[7]
(2010)J&l
25726 (ECM)
[8]
1979
(3) SA 1048
(A) AT 1062
[9]
S70(2)
[10]
S72