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[2013] ZAFSHC 67
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Tum Investments (Pty) Ltd v Xalindri Boerdery (Pty) Ltd and Others (2857/2009) [2013] ZAFSHC 67 (9 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2857/2009
In
the matter between:
TUM
INVESTMENTS (PTY) LTD
.............................................
.Applicant
versus
XALINDRI BOERDERY
(PTY) LTD
..............................
First
Respondent
DIRK LOUIS VISAGIE
.............................................
Second
Respondent
BELINDA CORNELIA
VISAGIE
..................................
Third
Respondent
DIRK
LOUIS VISAGIE N.O.
......................................
Fourth
Respondent
(In
his capacity as trustee of the
DIRK
LOUIS
VISAGIE TESTAMENTARY TRUST
_____________________________________________________
HEARD ON:
25 APRIL 2013
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
9 MAY 2013
_____________________________________________________
INTRODUCTION AND
BACKGROUND:
[1] On 21July 2008 the
applicant and the first respondent concluded a loan agreement in
terms of which the applicant advanced an
amount of R500 000,00
to the first respondent, while the second and third respondents bound
themselves as sureties and co-principal
debtors in respect of the
loan.
[2] The fourth
respondent, on his part, passed a mortgage bond, as continuing
covering security in favour of the applicant,over
a property
belonging to a testamentary trust of which he is the sole trustee.
[3] The first respondent
failed to perform in terms of the agreement, whereupon, the applicant
launched the present proceedings
for,
inter alia
, recovery of
the loan amount plus interest.
[4] The applicant,
further, sought an order declaring the trust property specially
executable but abandoned this prayer in the heads
of argument filed
on its behalf and at the commencement of the hearing.
[5] The respondents
oppose the claim and raise a number of points
in limine
to,
inter alia
, the effect that it is not apparent from the papers
before the court that the applicant was registered as a credit
provider as
required by the National Credit Act 34 of 2005 (the NCA)
when the loan agreement was concluded.
[6] On its part, the
applicant submits that there exist disputes of fact which cannot be
resolved on papers and that the relevant
issues should, as such, be
referred for oral evidence. It is, further, submitted for the
applicant that, if the court is disinclined
to refer the issues for
oral evidence, the claim should be reduced on the basis of unjust
enrichment.
ISSUES IN DISPUTE:
[7] In the light of the
view I have taken of the matter, this judgment is confined to the
question whether or not it is apparent,
ex facie
the launching
affidavits, that the applicant is either registered or exempt from
registration as a credit provider and, if not,
whether or not, in the
circumstances of the instant matter, it is entitled to a reduced
payment on the basis of unjust enrichment.
APPLICANT’S
CONTENTIONS
[8] Mr Grobler submits,
on behalf of the applicant, that the contention that the applicant is
not registered as a credit provider
in terms of the NCA is based on
inadmissible hearsay insofar as the third respondent deposes that her
attorney established from
the National Creditor Regulator that the
applicant is not registered as a credit provider.
[9] It is, further,
submitted for the applicant that in the event of the court accepting
such hearsay evidence, then and only in
such an event, there exists a
factual dispute as to whether or not the applicant is registered,
which should be referred to oral
evidence.
[10] In the alternative
Mr Grobler submits that if the court is not inclined to refer the
issue to oral evidence, then the applicant’s
claim should be
reduced to R349 537,74 on the basis of unjust enrichment as set
out in the draft order and as a default relief.
RESPONDENTS’
CONTENTIONS
[11] On behalf of the
respondents Mr Louw contends that the question as to whether or not
the applicant is a registered credit provider
in terms of the NCA
does not require the leading of oral evidence.
[12] It is, further,
submitted for the respondents that the applicant was required, as a
credit provider desirous toenforce a loan
agreement, to aver in the
launching affidavits, either that it is registered in accordance with
section 40 of the NCA or that it
is exempt from such registration.
[13] The applicant has
not made out a cause of action for the relief claimed insofar as its
founding papers are silent on the issue
of registration, so the
argument goes on behalf of the respondents.
[14] Mr Louw,
furthermore, submits that there exists no factual dispute on papers
regard being had to the fact that the applicant
made no allegations
regarding registration in its founding papers.
[15] It is further
contended for the respondents that the applicant seeks to remedy its
defective papers by way of referral to oral
evidence in the hope that
it would be able to tender evidence on the grounds upon which it
alleges that it is exempt from registration.
[16] In conclusion Mr
Louw, effectively, submits that the respondents have no issue with
the applicant’s calculations, as
set out in the draft order,
but that no case has been made out on the papers to entitle it to
restitution.
APPLICABLE LEGAL
PRINCIPLES
[17] The parties are
correctly in agreement that the NCA obliges certain credit providers
to register as such while, at the same
time, it exempts certain
credit agreements from its provisions. (
See section 4(1) and
section 40 of the NCA
.)
[18] It is, further,
common cause between the parties that failure to register as a credit
provider, where the lender was obliged
to register,renders any credit
agreement concluded by such a credit provider unlawful and void
ab
initio
. (
See section 40 read with section 89(5) of the NCA.)
[19] A credit provider
wishing to enforce a loan agreement in court needs to allege in his
pleadings either that he is registered
in accordance with section 40
of the NCA or that he is exempt from registration. (See
Guide to
National Credit Act
– Lexis
Nexis paragraph 5.2.2.1.)
[20] Where a credit
agreement cannot be enforced because it is unlawful and, as such,
void from the outset, the aggrieved credit
provider is still entitled
to claim restitution on the basis of unjustified enrichment. (See
National Credit Regulator v Opperman
2013 (2) SA 1
(CC).)
[21] As correctly
submitted by Mr Louw, in order for a credit agreement to be exempt on
the basis that the consumer is a juristic
person, the asset value of
that consumer or its annual turnover must be more than R1 million or
the agreement in question should
be a large agreement
viz
agreement for R1 million or more. (
See
section 4(1)
(a) and (b) of
NCA.)
APPLICATION OF
LEGAL PRINCIPLES AND FINDINGS
[22] The parties are,
effectively,
ad idem
that it is not expressly apparent,
ex
facie
the founding affidavits, that the applicant is either
registered as a credit provider or exempt from such statutory
registration.
[23] In my view, the fact
that the applicant does not expressly or specifically disclose, in
the launching papers, that it is either
registered or not required to
register,does not
per se
dispose of the matter. The enquiry,
in my judgment, is whether or not it is apparent,
ex facie
the
founding papers looked at as a whole, that the applicant is
registered or exempt from registration as a credit provider so
as to
be able, in law, to enforce the relevant credit agreement.
[24] I am persuaded, as
effectively opined by the learned authors of the
Guide to
National
Credit Act
> (
supra
),that the scheme of the NCA is such that
a credit provider, in the position of the applicant in the instant
matter, bears the onus
of showing, in the launching papers, that the
agreement it seeks to enforce is lawful and enforceable on the ground
that it, as
a lender, is either registered as a credit provider or
exempt from such registration.
[25] A perusal of the
founding affidavit and its annexures only reveals that the applicant
is a juristic person which concluded
a credit transaction involving
R500 000,00 with another juristic person and that the parties,
in the agreement, expressly
excluded certain provisions of the NCA.
Nothing indicative of registration or exemption is evident from such
launching papers.
[26] The statutory
obligation to register as a credit provider, where the factors set
out in
section 40
of NCA exist, cannot be contracted away. The
obligation in question, where applicable, is the corner stone of the
business of the
credit provider and does not arise
ex contractu
.
[27] It is, thus, not
apparent, from the material properly before the court, that the
applicant is either registered or exempt from
registration as a
credit provider. It has, as such, not been shown that the agreement
is legally enforceable on that basis.
[28] As correctly
submitted for the respondents, there exists no basis for referral of
the matter to oral evidence insofar as the
applicant does not assert,
in its papers, that it is either registered or not obliged to
register. Such a basis may, in my view,
also be laid in the replying
papers in an appropriate case. I do not even have to consider any
evidence or contentions on behalf
of the respondent to the effect
that the applicant is not registered as a credit provider in order to
saddle the applicant with
the duty to establish that the relevant
agreement is legally enforceable. Such a duty arises
ex lege
on the part of the applicant regard being had to the provisions of
section 40
read with
section 89(5)
of the NCA.
[29] There, further,
exists nothing before me to show that the relevant agreement is
exempt from the provisions of the NCA. The
facts
in casu
, on
the contrary, are suggestive of the possibility that the applicant is
required to register, as Mr Louw submits for the respondents,
regard
being had to the principal debt outstanding.
[30] There is no claim
for restitution before me and, as such, such a claim has not been
ventilated on the papers in order for a
proper and informed decision
to be made on,
inter alia
, the degree of turpitude of the
respective parties.
ORDER
[31] In the result the
application is dismissed with costs.
_____________
L.J. LEKALE, J
On behalf of applicant:
Adv S. Grobler
Instructed by:
Stander and Partners
BLOEMFONTEIN
On behalf of respondents:
Adv M.C. Louw
Instructed by:
Symington & De Kok
BLOEMFONTEIN
/spieterse