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[2012] ZAECMHC 5
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Nkume v Firstrand Bank Ltd t/a First National Bank (2743/11) [2012] ZAECMHC 5; 2012 (4) SA 121 (ECM) (15 March 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 2743/11
Heard on: 06/03/12
Delivered on: 15/03/12
In the matter between:
SAKHELE PRECIOUS NKUME
…........................................................
Applicant
and
FIRSTRAND BANK LIMITED t/a
FIRST NATONAL BANK
…...............................................................
Respondent
_____________________________________________________________
JUDGMENT
__________________________________________________________
NHLANGULELA J:
[1] In these proceedings, the applicant seeks an order
of specific performance in terms of s 62 of the National Credit Act
No. 34
of 2005 (the Act), which reads:
“
Right to reasons for credit being refused.
–
(1) On request from a consumer, a credit provider must advise that
consumer in writing of the dominant reason for-
(a) refusing to enter into a credit agreement with that consumer;
(b) offering that consumer a lower credit limit under a credit
facility than applied for by the consumer, or reducing the credit
limit under an existing credit facility;
(c) refusing a request from the consumer to increase a credit limit
under an existing credit facility; or
(d) refusing to renew an expiring credit card or similar renewable
credit facility with that consumer.
(2) When responding to a request in terms of subsection (1),
a credit provider who has based its decision on an adverse credit
report received from a credit bureau must advise the consumer
in
writing of the name, address and other contact particulars of that
credit bureau.
(3) On application by a credit provider, the Tribunal may make an
order limiting the credit provider’s obligation in terms
of
this section if the Tribunal is satisfied that the consumer’s
requests for information are frivolous or vexatious.”
[2] It is not in dispute that the applicant is a
consumer and the respondent a credit provider in terms of s 1 of the
Act.
[3] On 27 October 2011 the applicant lodged an
application with the respondent for a credit facility through one Ms
Unathi Msomi,
the consultant of the respondent, at York Road,
Mthatha. After processing the application in the computer Ms Msomi
advised the
applicant that the information obtained from the credit
bureau showed that the applicant had an adverse credit record, and
for
that reason the applicant must first sort out her financial
difficulties and then re-lodge her application for an assessment to
be made if she qualifies for a credit facility with the respondent
bank. Aggrieved with such information the applicant requested
to be
furnished with reasons for a refusal of her application incorporating
the name, address and the contact particulars of the
credit bureau.
The applicant states on affidavit that at the time of making the
application she had neither received summons from
any of her
creditors nor was there any judgment and a writ of execution issued
by a court of law against her for failing to pay.
She had neither
applied for an administration order nor had she been sequestrated due
to being indebted to any creditor.
[4] The respondent still refused to give written reasons
and/or disclose to the applicant the particulars of the credit bureau
as
sought by the applicant. It is obvious from the injuction created
by the legislature in the provisions of s 62 of the Act that the
applicant was entitled to make the request as she did and that the
respondent was obliged to do what the applicant wanted.
[5] The applicant immediately on the same 27 October
2011 instructed attorneys to issue a demand to the respondent in the
following
terms,
inter alia:
“We now demand, duly instructed by our client, a dominant
reason for your institution’s refusal to enter into a credit
agreement with our client. In the event that your institution based
its decision on an adverse credit report received from a credit
bureau, kindly advise us in writing of the name, addresses (physical)
telephone, telefaxes and other contact particulars of that
credit
bureau. Should we not receive the aforesaid information in the form
suggested above on or before five (5) calendar days
hereof, we shall
have no option but to approach the High Court for an appropriate
order. Enclosed herewith please find our client’s
power of
attorney.”
This demand was received by the respondent on 28 October
2011 at 09h30.
[6] When the information sought was not forthcoming, the
applicant brought this application on 04 November 2011 seeking a
relief
as follows:
“(1) That the respondent be and is hereby directed to
forthwith advise applicant in writing of its dominant reason for
refusing to enter into a credit agreement with him.
(2) In the event that the respondent is basing its decision on an
adverse credit report received from a credit bureau, the respondent
be and is hereby directed to advise the applicant in writing of the
names, addresses and other particular, including but not limited
to
telefax and telephone numbers of those credit bereau.
(3) That the respondent be and is hereby ordered to pay costs of
this application on an attorney and client scale.”
[7] The relief sought is opposed by the respondent. To
that end it filed an opposing affidavit. On 07 November 2011 the
respondent
replied to the demand by furnishing the information sought
by the applicant despite the said opposition.
[8] On the same 07 November 2011 the applicant asked the
respondent to tender full costs of the application. The respondent
turned
down that request, but on the 14 November 2011 it
counter-offered to pay limited costs in the sum of R1 000,00.
These costs
were not defined. The applicant rejected the counter
offer as being unreasonable.
[9] It would then appear that the real issue for
determination is one of costs. To that end I must have regard to all
the affidavits
filed towards the
merits
of the application. Of
course there will be no need for the Court to decide who the winner
is as the
merits
of the application have become academic. See:
Gamlan Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd
and Another
1996 (3) SA 692(C)
at 700G-J. The proper approach is
to utilize the materials available and decide the issue of costs on
broad general lines and not
the lines that would necessitate a full
hearing of the
merits
that have already been settled. See:
Jenkins v SA Boiler Makers, Iron & Steel Workers & Ship
Builders Society
1946 WLD 15
,
Gamlan, supra,
at page
701A-C and
Nxumalo And Another v Mavundla And Another
2000 (4)
SA 349
(D) at page 355F. In the circumstances the universal rule that
a party who succeeds should be awarded costs cannot apply. In the
exercise of the Court’s discretion, I have to consider the
manner in which the parties conducted themselves in this application,
both before and after the application was brought. See:
First
National Bank of Southern Africa t/a Wesbank v First East Cape
Financing (Pty) Ltd
1999 (4) SA 1073
(SE) at 1079-1080. And see
generally:
Herbestein and Van Winsen, The Civil Practice of the
High Courts in South Africa,
5
th
Edition at 961;
Union
Government (Minister of Railways and Harbours) v Heiberg
1919 AD
477
at 484;
Griffiths v Mutual & Federal Insurance Co Ltd
[1993] ZASCA 121
;
1994
(1) SA 535
(A) at 549A-D;
Graham v Odendaal
1972 (2) SA 611
(A) at 616. I must also consider which of the parties took
unnecessary steps or adopted a wrong procedure, any misconduct by a
party and any other relevant factors. See:
De Villiers v Union
Government (Minister of Agriculture)
1931 AD 206
at 214.
[10] The respondent averred in the answering affidavit
that due to some “far more pressing issues” it could not
comply
with the applicant’s request before 07 November 2011. It
then raised legal defences to the relief sought that, in any event,
since the conduct of the respondent was an administrative act which
is governed by the provisions of the Promotion of Administrative
Act
No. 3 of 2000 (PAJA) under which the applicant had to bring the
application within 180 days, the application was brought prematurely
and, for those reasons, the applicant must be deprived of the costs.
[11]
Mr Botma
, counsel who appeared on behalf of
the respondent, pinned his faith on the case of
Simon Dlepu v
South African Social Security Agency
Case No. 1124/11 (ECM) dated
22 November 2011 (unreported) contending
that the judgment in
Dlepu
is the applicable
authority in this case. The case of
Dlepu
was decided on the
facts. There, the applicant applied for and was granted a disability
grant on 23 February 2011 but payment therefore
was not made until
the applicant launched an application in court on 16 May 2011 for
payment to be made. Payment was made on 03
June 2011 during the
existence of the application. However, on 06 May 2011 and prior to
the launching of the application the respondent
addressed a letter to
the applicant advising that it was not yet able to pay as the files
of the applicant were still being considered
for verification that
the earlier decision not to pay had been subsequently rescinded by
the appeal tribunal. On the interpretation
of such a letter the court
found that the delay in paying on 03 June 2011 was not unreasonable.
Consequently the application was
dismissed with costs.
[12] In this case the respondent did not explain its
delay in responding to a demand for information until the application
was brought
and litigation costs incurred thereby. In my view it did
not avail the respondent to remain supine on the face of a legal
demand
and only to respond when the application had been brought. The
conduct of Ms Msomi, acting for the respondent, was unbecoming and
it
ought to be viewed as a complete disregard of the rights of the
applicant in terms of s 62 of the Act. The reason that “far
more pressing issues”, without more, made it impossible for a
response to be given before 04 November 2011 is inadequate.
[13] It was submitted by
Mr Zono,
who appeared on
behalf of the applicant, that the applicant’s claim, as pleaded
and explained in the founding affidavit,
is not founded on PAJA. He
argued strenuously that where one set of facts give rise to one cause
of action, which is properly pleaded
by the applicant, as well as
another cause of action, which is cognizable in law but not pleaded
by the applicant, an exception
towards such a cause of action cannot
arise. A reference was made to the Full Bench case of
The Minister
of Safety And Security and 2 Others v Aaron Vumile Qakamba,
Case
No. A172/06 (ECM) dated 20 September 2007 where D. Van Zyl J, writing
for the court, said at page 9, para. [14]:
“The remedies that PAJA provides are not in my view exhaustive
of the remedies that might be available to an individual who
has been
wrongfully deprived of his or her possession. Subject to the limits
placed on its field of application by the Constitution,
there exists
a presumption that the legislature did not intend to interfere with
existing law and,
a fortiori
,
not to deprive
parties of existing remedies for wrongs done to them. A statute will
be construed as doing so only if that appears
expressly or by
necessary implication. The continued existence of the common-law
right of a possessor not to be wrongfully deprived
of his right of
possession and the underlying principle thereof, namely that in order
to maintain law and order, no man is allowed
to take the law into his
own hands, is not in conflict with the spirit, purport and objects of
the Bill of Rights. It is accordingly
not inappropriate to invoke the
presumption in the present case. From a reading thereof, PAJA does
not expressly, nor in my view
by necessary implication, exclude any
common-law remedies that might be available to the respondent.”
On that reasoning, I hold that the applicant’s
claim which is based on s 62 of the Act cannot be disregarded merely
because
the conduct of the respondent is capable of being reviewed
under PAJA. An order of a
mandamus
or specific performance of
a statutory obligation in terms of s 62 of the Act is enforceable in
law.
[14]
Mr Botma
submitted, quite correctly so, that
the provisions of s 62 of the Act do not give time within which the
information sought should
be furnished. He was
ad idem
with
Mr
Zono
that, in the circumstances, the test of reasonableness
applies. Two cases of this division in which the interpretation of
“reasonable
time” was given were referred to the Court.
The first is the case of
Mapelo Fikiswa v Experian SA (Pty) Ltd,
Case No. 1687/07 (ECM) dated 16 September 2008 where Alkema J
dealing with times for compliance under the Act said at page 3:
“13.1 As Mr Ascar on behalf of the respondent correctly pointed
out, the Act (s 70 (2) (g) of Act No. 34 of 2005) is silent
in regard
to the period within which the applicants must comply with the
obligations to issue a report to any person who requires
it. In these
circumstances he submitted, and I agree, the report must be furnished
within a reasonable time. What it a reasonable
time will depend on
the circumstances of each individual case.”
The Learned Judge went on to say at page 4:
“There is no explanation whatsoever why the respondent took
more than two months to furnish the applicant with the report
and
only after the applicant, as [it] was her rights, had instituted the
present applicant.
…In those circumstances the applicant had no other remedy but
to approach this Court for relief in order to ask for her
costs.”
He then said:
“In my view, and particularly having regard to the computerized
age in which the respondent operates, the respondent could
have
furnished the reports within a few days after the request; or at
least tender an explanation why it could not do so. The probabilities
are overwhelming from the papers that all such information is
obtained on computer and it is simply a matter of printing out the
record and furnishing it to the applicant.”
[15] In this case it was submitted by
Mr Zono,
correctly so, that for the mere fact that no explanation was
given by the respondent as to why it refused to give reasons and
release
the particulars of the credit bureau in good time for the
costs to be avoided, the furnishing of the information on 07 November
2011 constituted unreasonable delay.
[16] The second case is that of
Fikiswa Mapelo v
Transunion ITC (Pty) Ltd,
Case No. 280/07 (ECM) dated 02 October
2008. There, Schoeman J agreed with the approach of Alkema J on the
interpretation of time
in which the credit grantor should comply with
obligation created under the Act.
[17] In my judgment there was no reason why the
information which was readily available in the computer of the
respondent on 27
October 2011 should have been withheld by the
respondent, and released only on 07 November 2011. That the
respondent had far more
pressing matters to do is not a good
explanation for the failure to make the information available to the
applicant on 27 October
2011. Further, in the circumstances, the
bringing of the application on 04 November 2011 was not premature.
[18] On the foregoing, the applicant is entitled to an
award of costs. Such costs should include costs incurred after 07
November
2011 up to the date of hearing of arguments. But I am not
able to discern from the papers the existence of
mala fides
on
the part of the applicant which would warrant consideration of
punitive costs.
[19] In the result I make the order as follows:
“
The costs of this application shall be paid by the
respondent.”
___________________________
Z.M.
NHLANGULELA
JUDGE
OF THE HIGH COURT
Attorney for the applicant : Mr A. S. Zono
: c/o A.S. Zono & Associates
MTHATHA
Counsel for the respondent : Adv. D.C. Botma
Instructed by : Keightley Incorporated
MTHATHA