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[2014] ZAGPPHC 347
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Eureka DIY Solutions (Pty) Ltd v Soda Cleaning and Equipment North West t/a DIY Depot Fochville and Another (A945/2013) [2014] ZAGPPHC 347 (20 May 2014)
IN
THE
HIGH COURT O
F
SOUTH AFR
ICA
(GAUTENG
DIVISION, PRETORIA)
Case Number:
A945/2013
Date: 20 May 2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
EUREKA
DIY SOLUTIONS (PTY)
LTD
.........................................................................
Plaintiff/Appellant
and
SODA
CLEANING AND EQUIPMENT NORTH
WEST
t/a DIY DEPOT
FOCHVILLE
...................................................................
1
st
Defendant/Respondent
STRYDOM,
MARIUS
SIGFRIED
.........................................................................
2
nd
Defendant/Respondent
JUDGMENT
POTTERILL J
[1]
The appellant is appealing against the court
a
quo's
order
that the plaintiff’s claim is dismissed with costs. In coming
to this order the court found that the “arrangement"
between the parties was a credit agreement for the purposes of the
National Credit Act. Act 3^+ of 2005 (hereinafter referred to
as “the
NCA”). The appellant accordingly was bound by section 129 of
the NCA and because a section 129(1)(a) notice
was not delivered to
the respondent the plaintiff’s claim was irregular.
[2] At the date of
the hearing there were no heads of argument filed on behalf of the
first and second respondents and there was
no appearance on behalf of
the first and second respondents.
[3] On behalf of the
appellant it was submitted that the magistrate erred in not
considering the totality of section 8 of the NCA.
If consideration
was given to the whole of section 8 then it was clear that there is a
further requirement which would render the
agreement as attached to
the summons as not being a credit facility as defined in the NCA. It
speaks for itself that if the agreement
is not a credit facility as
defined in section 8 and specifically section 8(3) then the special
pleas raised pertaining to the
non-compliance with section 129 of the
NCA and the nonregistration of the appellant as a credit provider
falls away.
[4] Section 8(3) of
the NCA reads as follows:
"An
agreement, irrespective of its form but not including an agreement
contemplated in subsection (2) or section U(6)(b), constitutes
a
credit facility if. in terms of that agreement
—
(a)
a credit provider undertakes
-
(i) to supply
goods or services or to pay an amount or amounts, as determined by
the consumer from time to time, to the consumer
or on behalf of, or
at the direction of, the consumer: and
(ii) either to ~
(aa) defer the
consumer's obligation to pay any part of the cost of goods or
services, or to repay to the credit provider any part
of an amount
contemplated in subparagraph (i); or
(bb) bill the
consumer periodically for any part of the cost of goods or services,
or any pari of an amount, contemplated in subparagraph
(i); and
(b)
any charge
.
fee or interest is
payable to the credit provider in respect
of
-
(i) any amount
deferred as contemplated in paragraph (a)(ii)(aa); or
(ii)
any amount billed as contemplated in paragraph (a)(ii)(bb) and not
paid within the time provided in the agreement
."
[5]
The argument of the appellant was that the last part of section 8(3)
as quoted above was ignored by the court
a
quo.
Plainly
put the appellant did not charge interest on the deferred amount and
only charged interest as a penalty on nonpayment of
amounts.
[6]
It is accepted that the appellant supplied goods and that the
purchase price is fixed at the time the goods are ordered and
supplied. The price must be paid within 30 days upon presentation of
the invoice. The appellant did not levy any finance charges,
administrative costs and/or interest despite the provision therefor
in the standard terms and conditions of the appellant as attached
to
the summons, i agree with the findings of the court in
JMV
Textiles (Pty) Ltd v De Chaiain Spareinvest 14 CC and Others
2010 (6) SA 173
(KZD)
and
specifically at paragraphs [15] and [16]:
[
15 ] ...In my view s 8(3) is directed at the provision by credit
providers of charge cards and credit cards and similar arrangements,
and not at conventional safes on credit...
”
[1
6]
Viewed from a broader perspective, that conclusion is consistent with
the thrust and purpose of the NCA. In a broad sense it
is concerned
with the activities of those whose business it is to provide credit
to the public and who seek to profit from that
business by way of
fees, charges and interest.."
[7]
I
am accordingly satisfied that the agreement before the court is
neither an incidental credit agreement nor a credit facility.
To
reiterate, in the case of a credit facility described in section 8(3)
part and parcel of the arrangement between the consumer
and the
credit provider is that the consumer may take advantage of the offer
of credit and the credit provider profits from this
agreement in
enforcing charges, usually by way of interest, for this advantage of
credit.
In casu
there
are no charges or interest on the amounts to be paid within 30 days.
There is an entitlement to charge interest on default
if the
contractual terms were silent on that point by virtue of the
provisions of the prescribed Rate of Interest Act, Act 55 of
1975.
[8]
The magistrate thus erred in finding that the standard terms and
conditions as attached to the particulars of claim qualifies
as a
credit facility in terms of the NCA. It is thus not necessary to
address any of the other special pleas as they ail relate
to the NCA.
[9] I accordingly
make the following order:
1. The appeal is
upheld wilh costs;
2. The order of the
magistrate is set aside;
3. The special plea
is dismissed with costs on an attorney and client scale; and
4.
The
matter is referred back to the magistrate's office for adjudication
on the merits.
S. POTTERILL
JUDGE OF THE HIGH
COURT
I agree
A.C.M. PIETERSE
ACTING JUDGE OF
THE HIGH COURT
CASE NO: A9U5/2013
HEARD ON: 20 May
201U
FOR THE
PLAINTIFF/APPELLANT: ADV. L. STEYN
INSTRUCTED BY:
Pierre Krynauw Attorneys
FOR THE 1 and 2
DEFENDANTS/RESPONDENT: NO APPEARANCE
INSTRUCTED BY:
Havenga & Viljoen Attorneys
DATE OF JUDGMENT: 20
May 201U