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[2010] ZAFSHC 174
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SA Taxi Securitisation (Pty) Ltd v Mazibuko (555/2010) [2010] ZAFSHC 174 (23 November 2010)
FREE STATE HIGH COURT.
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
In the matters between:
Case no: 555/2010
SA TAXI SECURITISATION (PTY) LTD
….......................................
PLAINTIFF
and
JERMAN
EPHRAIM MAZIBUKO
…...................................................
DEFENDANT
Case no: 409/2010
SA TAXI SECURITISATION (PTY) LTD
PLAINTIFF
and
LUCAS MAKHETE MPHATSOANYANE
DEFENDANT
Case no:
556/2010
SA TAXI SECURITISATION (PTY) LTD
PLAINTIFF
and
JOHANNES
THABISO NAILE
DEFENDANT
Case no: 708/2010
SA TAXI
SECURITISATION (PTY) LTD
PLAINTIFF
and
NTIKILE
ABELABRAMS
DEFENDANT
Case no: 709/2010
SA TAXI
SECURITISATION (PTY) LTD
PLAINTIFF
and
TLALE
ALEXIS MPHALE DEFENDANT
Case no: 779/2010
SA TAXI
SECURITISATION (PTY) LTD
PLAINTIFF
and
ITSHOKOLELE
PIET LEBAKA DEFENDANT
Case
no: 845/2010
SA
TAXI SECURITISATION (PTY) LTD PLAINTIFF
and
THABO
RAPONTO JANUARY DEFENDANT
Case
no: 846/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
FUSI
PETRUS MIFI DEFENDANT
Case no: 982/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MOSES
BENJAMIN NHLABATHI DEFENDANT
Case no: 983/2010
SA TAXI
SECURITISATION (PTY) LTD
PLAINTIFF
And
PINKI CAIN MOKHELE DEFENDANT
Case no: 1189/2010
SA TAXI
SECURITISATION (PTY) LTD
PLAINTIFF
and
MAMPE SIMON TLADI DEFENDANT
Case no: 1190/2010
SA TAXI SECURITISATION (PTY)
LTD DEFENDANT
and
LETS IE ZACHARIA MPONYA
PLAINTIFF
Case no: 1191/2010
SA TAXI SECURITISATION (PTY)
LTD DEFENDANT
and
MOSELANTJA
EMILY DUIKER
DEFENDANT
Case no: 1252/2010
SA TAXI
SECURITISATION (PTY) LTD
PLAINTIFF
and
PADI DAVID
MOTSATSE
DEFENDANT
Case no: 1282/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MOHAPI BENNET LEKEKA DEFENDANT
Case no: 1385/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
BONGANI WILLIAM MAY DEFENDANT
Case no: 1412/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MAMPAI
LYDIA MOKEKI DEFENDANT
Case no: 1494/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MALECHESA
MARIA PEDI DEFENDANT
Case no: 1495/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MOJALEFA
SAMUEL SEKHALOA DEFENDANT
Case no: 1548/2010
SA
TAXI SECURITISATION (PTY) LTD
PLAINTIFF
and
BIZUYISE
GOODWILL SITHOLE
DEFENDANT
Case no: 1549/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MASHAODISE JONAS RANTSOARENG
DEFENDANT
Case no: 1550/2010
SATAXI SECURITISATION (PTY) LTD
PLAINTIFF
and
NOMATHEMBA EMILY MODJIDJI
DEFENDANT
Case no: 1609/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
PITSO JOHANNES MOLAHLEHI
DEFENDANT
Case no: 2761/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
MOTLATSI
MICHAEL MPHANE
DEFENDANT
Case no: 3326/2010
SA TAXI SECURITISATION (PTY)
LTD PLAINTIFF
and
THALABA
WILLIAM MASIU DEFENDANT
JUDGMENT
BY: CJ MUSI, J
HEARD
ON: 21 October 2010
DELIVERED
ON: 23 November 2010
[1] This judgment concerns
25(twenty five) separate applications for summary judgment that were
brought before me. The defences
of all the respondents (defendants)
-subject to slight differences - are the same. All the defendants are
represented by the same
counsel. The applicant (plaintiff) is also
represented by the same counsel. The matters were therefore argued
simultaneously. Mr
Snellenburg, on behalf of the defendants, however
reserved the right to refer to the specific facts and circumstances
of particular
defendants should the need arise.
[2] The defendant (Ephraim
Jansen Mazibuko, case no: 555/2010) applied for leave to file a
supplementary affidavit. This application
was unopposed. The
supplementary affidavit raises an additional defence: "reckless
credit" and also sets out other factual
averments to which I
shall return later. By agreement the defence of "reckless
credit" was argued in respect of all the
defendants.
[3] The
National Credit Regulator (NCR) established in terms of section 12(1)
of the National Credit Act, 34 of 2005 (the Act) brought
an urgent
application (under case number 4360/2010) wherein it sought an order
to be joined in all these matters as amicus curiae.
1
It further
sought an order that all twenty five matters be postponed sine die
pending a decision by the South Gauteng High Court
(Johannesburg)
under case number: 20491/2010.
[4] The parties agreed that the
NCR may participate as amicus curiae in the summary judgment
applications and that it may make whatever
submissions it wishes in
relation to these applications. It was also agreed that I may, if
needs be, make any costs order against
the NCR. The application for
postponement was argued whereafter I dismissed it with no order as to
costs. I revert to the summary
judgment applications.
[5] These matters were argued on
the basis of the Mazibuko matter (case no: 555/2010) because his
opposing and supplementary affidavits
contain the defences raised by
all the defendants. The understanding - although disavowed to some
extent by Mr Snellenburg - was
that the outcome of the application
against Mazibuko will determine the fate of the other applications. I
will deal with these
matters based on the Mazibuko matter without
disregarding the peculiar facts of the other matters.
[6] The
plaintiff is an authorised credit provider and is registered as such
in terms of the Act.
2
All the
defendants are taxi operators. The plaintiff entered into a separate
lease agreement with each defendant.
[7] In terms of the respective
agreements the plaintiff leased a motor vehicle to the defendant,
which vehicle was delivered to
the defendant. Despite the delivery of
the vehicle ownership of it remain vested in the plaintiff.
[8] Each defendant was liable to
pay an initial deposit plus a first rental amount and thereafter to
make approximately 59 monthly
rental payments.
[9] The agreement furthermore
provides that should the defendant fail to pay the rental on due date
or fail to satisfy any of his/her
other obligations in terms of the
agreement the plaintiff shall, without prejudicing any of its other
rights in law be entitled
to cancel the agreement and inter alia
claim return and possession of the vehicle and claim costs on the
attorney and client scale.
[10] The plaintiff alleged that
each of the defendants breached the agreement by failing to pay the
rentals due in terms of the
agreement.
[11] It is
common cause that all the defendants consulted a debt counsellor and
applied to be declared over-indebted.
3
The debt
counsellor notified the plaintiff of the defendants' applications in
terms of section 86 (4) (b) (i) of the Act.
4
[12] The
plaintiff contends that neither the debt counsellor nor any of the
defendants took any further steps as contemplated in
section 86 (5)
to (8) of the Act.
5
[13] The defendants state that
they were found to be over-indebted by the debt counsellor and that
the latter suggested a reduced
payment plan which they (defendants)
accepted and adhered to.
[14) It is
common cause that the plaintiff did not consent to any proposal for a
reduced payment plan. It is further common cause
that the debt
counsellor did not refer any of the matters to the Magistrate's Court
with his recommendation. It
follows
therefore that the Magistrate's Court did not make an order as
contemplated in section 87 of the Act.
6
[15] Having
heard nothing further about the review process the plaintiff gave
notice, in terms of section 86 (10) of the Act, to
terminate the
review to the defendants, the debt counsellor and the NCR. The notice
was given at least 60 (sixty) business days
after the date on which
the respective defendants applied for debt review.
7
The plaintiff
subsequently issued summons and applied for summary judgment after
the defendants filed their respective notices of
opposition. Although
the plaintiff prayed for other relief in its summary judgment
applications, during argument it onlyasked for
the return of the
vehicles with costs on the attorney client scale.
[16] The defendant (Mazibuko)
denied that the plaintiff was entitled to terminate the debt review.
He contended that 60 (sixty)
business days had not elapsed since the
date on which the payment plan was deemed to have been accepted. It
is the defendant's
contention that as a result of the premature
termination of the review the plaintiff was not entitled to issue
summons against
him.
[17] The defendants' defences
are as follows:
17.1. That the review was
prematurely terminated.
17.2. The defendant denied
being in breach of the agreement because they made regular payments
in terms of the debt counsellor's
proposal to the plaintiff.
17.3. That
the Magistrate's Court or this Court might revive the debt review
process as contemplated in section 86 (11).
8
17.4. That there was no
lawful cancellation of the agreement.
17.5. That the plaintiff
advanced "reckless credit" and is at this stage not
entitled to have possession of the vehicles.
[18] The NCR
argued that the termination of the review is invalid because section
88(3) is the starting point. It argued that the
applications fell
foul of the provisions of section 88(3) and therefore the plaintiff
may not exercise or enforce by litigation
any right or security under
the agreements.
9
[19] Before I
deal with the defences, I pause to deal with the point
in
limine
raised
by the defendants relating to the "personal knowledge" of
the deponent in support of the applications for summary
judgment.
[20] The
defendants point out that a certain Mr Sachin Maharaj, a manager at
the plaintiff, supplied the debt counsellor with information
pertaining to all the defendants in terms of section 86(5) (a).
10
In the
summary judgment applications Andre Erasmus deposed to the supporting
affidavit. Theyargued that because Maharaj stated that
the affairs of
the defendants resort under him the "personal knowledge" of
Erasmus must be subject to doubt.
[21] Uniform rule 32(2) reads as
follows:
"The
plaintiff shall within 15 days after the date of delivery of notice
of intention to defend, deliver notice of application
for summary
judgment, together with an affidavit made by himself or by any other
person who can swear positively to the facts verifying
the cause of
action and the amount, if any, claimed and stating that in his
opinion there is no
bona
fide
defence
to the action and that notice of intention to defend has been
delivered solely for the purpose of delay. If the claim is
founded on
a liquid document a copy of the document shall be annexed to such
affidavit and the notice of application for summary
judgment shall
state that the application will be set down for hearing on a stated
day not being less than 10 days from the date
of the delivery
thereof."
[22] In
Maharaj
v
Barclays
National Bank Ltd
1976
(1) SA418 (A-D) it was said with reference to the aforesaid subrule:
"Generally
speaking, before a person can swear positively to acts in legal
proceedings they must be within his personal knowledge
... The grant
of the remedy is based upon the supposition that the plaintiff's
claim is
unimpeachable and that the defendant's defence is bogus or bad in
law. One of the aids to ensuring that this is the position
is the
affidavit filed in support of the applicant, and to achieve this end
it is important that the affidavit should be deposed
to either the
plaintiff himself or by someone who has personal knowledge of the
facts..."
11
[23] I find
the defendants' argument strange. In their opposing affidavits they
all state that:
"Annexure
B was compiled by a certain Sachin Rajendra Maharaj, a manager of
plaintiff, who I presume has the same powers
as the deponent given
their employment as managers of plaintiff."
Annexure
B refers to the information supplied to the debt counsellor. The
defendants seem to accept that Erasmus has the necessary
"personal
knowledge".
[24] Erasmus' affidavit in any
event deals sufficiently with this issue and it eradicates all
doubt. The relevant part of his
affidavit reads as follows:
"1. I am the general
manager of the abovementioned plaintiff in this matter and is duly
authorised to depose to the affidavit
on behalf of the plaintiff.
2. The facts herein set out
fall within my personal knowledge and are true and correct
3. In consequence of such
position held by me with the plaintiff, I have in my possession and
under my control the files and records
of the plaintiff pertaining
to this matter, the contents of which I have familiarised myself
with during the course of the plaintiff's
dealings with the
defendant and for purposes of this matter. By virtue of the
aforegoing I have personal knowledge of the facts
deposed to by me
herein..."
[25] I am
satisfied that Erasmus has "personal knowledge" of the
facts he deposed to. The point
in
limine
is
dismissed. I now turn to the defences.
[26] Mr Snellenburg argued that
a credit agreement that is subject to the Act may not be cancelled
extra judicially. According
to him the right to cancel such a
contract is subject to judicial oversight by a court considering the
credit agreement. Therefore,
so the argument went, any extra
judicial cancellation of such a contract is only a purported
cancellation until the court considering
the matter concludes that
the party desiring to cancel the agreement (the credit provider) is
entitled to do so.
[27] Mr
Snellenburg pointed out that his argument is fortified by the fact
that section 83 (1) of the Act permits a court considering
a credit
agreement to declare such an agreement as being reckless.
12
According to
Mr Snellenburg a finding that the credit agreement is reckless
taints the whole agreement and not a part thereof.
According to him
the contract may not be cancelled and the security returned because
that would impede the court's power to make
orders in terms of
section 83(2) and (3) of the Act.
13
He referred
to an unreported judgment by Willis J wherein he said:
"It seems clear enough
that a credit provider is prevented from enforcing a credit
agreement where:-
(i)
there has
not been compliance with certain procedural formalities (section
130(1))
(ii)
a court has
determined that the credit agreement
was reckless (section 130(4)
(a));
a court has declared a
consumer to be over - indebted in terms of the Act (section 140 (c)
(iii))
(iv)
the credit
agreement has been suspended or is subject to an order re-arranging
the debt or an agreement to that effect has been
entered unto
(section 130 (4) (e) and section 130(3) (c) (ii)).
14
[28] The Act
does not expressly state that all credit agreements falling within
its purview may only be cancelled by an order
of court. The
provisions of the Act have certainly limited the right of a credit
provider to cancel a credit agreement.
15
[29]
Extra-judicial cancellation of contracts has always been recognised
in our law. In
Lebedina
v Schechter and Haskell
16
Greenberg J
said the following:
"Mr
Brink's contention on behalf of the plaintiff is that in case of
contract induced by fraud, when the defrauded party
repudiatesand
the Court upholds his repudiation and decrees a rescission, the
contract is extinguished ex
post
facto
as
from the date of the contract. The first difficulty that I have with
this contention is a doubt whether the Court's intervention
is
necessary at all. It seems to me that it is the defrauded party's
repudiation which puts an end to the contract and the Court
merely
decides that this party was entitled to put it to an end. In
practice this appear to be recognised, because it is quite
common in
our Courts that where a party is suing on a cause of action which
arises out of his having entered into a contract
which is induced by
fraud, he does not ask formally for rescission of a contract, but
merely asks for such remedies as follows
from a rescission of a
contract. And this is even clearer in the case of defence to a claim
on a contract which is said to have
been induced by fraud. It is
very unusual for a defendant in such a case to ask that the contract
should be set aside: he merely
states that he has put an end to the
contract, sets out his reason, and claims that he is free from the
consequences of the contract."
[30] This
applies with equal force to cancellation of a contract based on a
serious breach such as non payment of monthly rentals.
17
In
Sonia
(Ptv) Ltd v Wheeler
18
the right of
a party to rely on an extra judicial cancellation was recognised but
itwas emphasised that it is desirable to have
a judgment of
cancellation.
[31] In
Swart
v Vosloo
19
it was
stated that in the absence of an agreement to the contrary, a party
who exercises his right to cancel must convey his decision
to the
other party and that cancellation does not take place until that
happens.
[32] It is
clear from the authorities cited above that the right of a party to
extra-judicially cancel a contract on breach thereof
is deeply
rooted in our legal system. If the legislator wanted to change this
by taking away the right of two or more contracting
parties to
cancel their mutual agreement it should have done so in express
terms. In my view the legislator did not take away
that right.
First
Rand Bank v JGS Sevfferet
supra
is not authority for Mr Snellenburg's argument. Thus if a contract
that is governed by the Act states under what circumstances
a party
may extra judicially cancel it and such cancellation is done subject
to and in accordance with the Act then the cancellation
will be
valid.
[33] In fact
section 129(3) puts this issue beyond doubt. Section 129(3)
expressly grants a consumer who is in default the right
to
re-instate a credit agreement, before it has been cancelled by the
credit provider, and thereby preventing a credit provider
from
exercising his right of cancellation.
20
The
Act therefore expressly or at the very least by default recognises
the credit provider's right to extra judicially cancel
a credit
agreement. If the intention was that credit agreements may only be
cancelled by an order of court then the section would
have read "at
any time before the court has cancelled the agreement..."
[33.1] The
plaintiff states, in its particulars of claim, that due to the
defendants' breach of the agreement it terminated it
alternatively
it is terminated by the summons. The summons is sufficient
notification of cancellation.
21
[34] The defendants denied that
they breached the agreement and pointed out that they paid the
monthly rental in terms ofthe debt
counsellor's proposal to the
plaintiff. It is common cause that all the defendants failed to pay
the rentals due in terms of
the lease agreements. It is further
common cause that the proposal of the debt counsellor was either not
accepted by the plaintiff
or the counter proposal made by the
plaintiff was not accepted by the defendants.
[35] The payment plan devised
by the debt counsellor was a unilateral act which is not sanctioned
by the Act. If the debt counsellor
reasonably concluded - as he did
- that the defendants were over-indebted he was supposed to make a
proposal recommending that
the Magistrate's Court make an order in
terms of section 86(7)(c) of the Act. None of these matters were
referred to the Magistrate's
Court.
[36] In the
National
Credit Regulator v Nedbank Limited & Others
22
Du Plessis J
said the following in relation to section 86(7)(c):
"In my view section
86(7)(c) requires cases of over-indebtedness to be referred to the
magistrate's court so as to ensure
judicial oversight of the entire
process. A magistrate'scourt can only provide such oversight if it
conducts a hearing and has
regard to at least the matters referred
to in section 87 (1). It follows that by necessary implication the
procedure set out
in section 87(1) applies also to cases coming
before the magistrate's court under section 86(7)(c)."
[37] Du
Plessis J also correctly concluded that a referral to a Magistrate's
Court in terms of section 86(7)(c) of the Act is
an application as
contemplated in the Magistrate's Court Act 32 of 1944 and should be
treated as such in terms of Rule 55 of
the Magistrate's Court
Rules.
23
The
recommendation in terms of 86(7)(c) must be served in terms of Rule
9 of the Magistrates' Court's Rules, but service thereof
may, with
the agreement of the affected parties be by way of fax or e-mail.
24
[38] The debt counsellor, in
this matter, did not refer any of these matters to the Magistrates'
Court with a recommendation.
It follows that there was no order by
the Magistrate's Court that any of the agreements were reckless
(section 87(1)(b)(i)) or
an order re-arranging any of the
defendant's obligations (section 87(1)(b)(ii). The defendants could
not legally pay a lesser
amount. It is therefore clear that the
defendants breached the agreement by not paying the monthly rental
in terms of the agreement.
[39] The defendants argued that
the review was not validly terminated and in respect of Mazibuko, as
stated above, it was argued
that it was terminated prematurely
because the 60 business days prescribed in section 86(10) had not
elapsed when summons was
issued. I propose to deal with the Mazibuko
matter before considering the general complaint of invalid
termination.
[40]
Mazibuko states in his opposing affidavit that during or about
October 2009 he consulted the debt counsellor who found him
to be
over-indebted and that his debt review was accepted in terms of
section 86 of the Act. He attached a notice dated 14 October
2009
from the debt counsellor to the plaintiff which
inter
alia
reads:
"This
letter serves to advise you that the under mentioned consumer has
applied for debt review and
has
been found over
-
indebted and accepted (
original
emphasis) in terms of
section 86
of the
National Credit Act 34 of
2005
... Kindly provide us with:
(1) An account breakdown of the
above consumer
(2) The date of conception of
this account
(3) Your banking details..."
[41] The plaintiff responded on
20 October 2009 with a letter which reads:
"We refer to your request
for a Certificate of Balance regarding the above mentioned consumer
and attach hereto and "information
supplied" to Debt
counsellor for your records (sic)."
[42] The debt counsellor wrote
another letter to the plaintiff dated 9 November 2009 which reads as
follows:
"This is a follow up on
the form 17(1) notification in terms of the new Credit Act 34 of
2005 you received recently regarding
this consumer.
Kindly note,
apart from performing the debt counselling package we also have been
mandated to apply our rehabilitating services,
thus taking control
of all his/her financial matters and ensure credit providers receive
their fair share. For that purpose a
precise and appropriate self
explanatory income and expenses account (Form D), a payment plan
(Form E) and if mortgage and/ or
assets finance agreements are
applicable (Form E**) attached hereto, has been constructed.
Electronic payments in accordance
to the payment plan which will
commence immediately. Payment dates are between the 15
th
and end of
each month. Kindly note the first monthly payment might be less than
indicated due to unforeseen additional costs.
We trust you
find this informal payment in order and will consider that you
accepted it if we have not receive any response from
you by the 23
rd
November
2009. In the event of the majority of creditors rejecting the
proposal, we will have to approach Court for intervention
to enforce
it. Although legal cost involved in such action may culminate in a
lesser monthly amount being available for distributing
amongst
creditors, we would nevertheless proceed with this proposed payment
plan."
[43] There was no further
correspondence between the parties in relations to the review
process. On 15 January 2010 the plaintiff
sent its 86(10) notice to
the defendant, the debt counsellor and the NCR informing them that
it terminates the debt review requested
by Mazibuko. Mazibuko does
not deny receiving the section 86(10) notice. Summons was issued on
3 February 2010.
[44] Mr
Snellenburg argued that the 60 days period should be calculated from
23 November 2009. I disagree. Section 86 (10) is
clear. The notice
must be given "at any time at least 60 business days after the
date on which the
consumer
applied for debt review
."(My
underlining). Mazibuko was "found" to be over-indebted by
the debt counsellor on 14 October 2009. Although
it is not clear on
which date he applied, it is certain that it was on or before 14
October 2009. The 60 days period should therefore
be calculated from
14 October 2009. That being the case, the plaintiff's contention
that he had been in default for at least
twenty (20) business days,
that at least sixty (60) business days had elapsed since the date on
which the defendant applied for
debt review and that at least ten
(10) business days had elapsed since the plaintiff delivered its
notice in terms of section
86 (10) of the Act cannot be faulted. The
debt review was therefore terminated in accordance with the
prescripts of the Act and
not prematurely as the defendant,
Mazibuko, alleged.
[45] The
defendants' further contention was that the reviews were invalidly
terminated because the plaintiff acted in bad faith.
Support for the
defendants' proposition that a credit provider who terminates a
review in terms of section 86(10) must do so
in good faith is found
in the judgment of Blignault J in
Mercedes
Benz Financial Services South Africa (Pty) Limited v Papana Gideon
Dunga.
25
The
implication of the criterion of good faith in section 86(10) fits
comfortably with the general purpose of the Act and the
duty of the
credit provider to act in good faith.
26
1
therefore agree with Blignault J that a section 86(10) termination
must be done in good faith.
[46] Whether a credit provider
acted in good faith or not is a factual inquiry. It will depend on
the facts and circumstances
of each case. The determination whether
the credit provider acted in bad faith being a factual inquiry the
defendant ought to
lay a factual foundation for his assertion that
the plaintiff acted in bad faith. Some of the defendants knew or
ought to have
known that the (irregular) payment plan was not
accepted by the plaintiff and the others did not accept the
plaintiff's counter
proposal. The debt review process was initiated
by the defendants. As much as there was a duty on the debt
counsellor to refer
the matters to the Magistrate's Court, there was
an equal if not higher duty on the defendants to ascertain from the
debt counsellor
what the status of their respective applications
were. Nothing was done by all the defendants to prosecute the review
process
further. In my view it is not reasonable to initiate a
process and thereafter ignore it under circumstances where you know
or
ought reasonably to have known that the process is not yet
complete. Even after all the defendants received the section 86(10)
notices, before they were informed about the cancellation of the
agreements, they did nothing to prevent the cancellation.
[47] The
plaintiff waited, as it was enjoined to do, for the prescribed
periods to elapse before giving notice in terms of section
86(10) of
the Act. There is no express indication in the opposing affidavit
that the plaintiff acted insincerely or maliciously;
neither can
such conduct be inferred from the facts and circumstances of these
matters. The fact of the matter is that the defendants
acted
unreasonably by not prosecuting the matters in terms of the Act.
Absent any steps by the defendants to take the review
to its
conclusion the plaintiff was entitled to unilaterally terminate the
review process. In my view the debt review was terminated
bona
fide
and
validly.
[48] Having terminated the
review the plaintiff cancelled the contracts. Mr Snellenburg, as
pointed out above, argued that the
cancellation is not valid because
it impedes the court's power to order that the review resume in
terms of section 80 (11) or
to refer the matter to a debt counsellor
in terms of section 85(a) after a finding that the consumer is
over-indebted. He argued
that it would be unfair to grant an order
at this stage that the vehicles be returned in the light of the
orders (section 85(a)
and 86(11)) that the court may make in
relation to the credit agreements.
[49] The
short answer to this submission is that the agreements have been
cancelled. The defendants' right to possess the vehicles
is acquired
by virtue of the terms of the lease agreements. Those agreements
being cancelled the defendants don't have any right
to possess the
vehiclesanymore after cancellation. The court cannot revive a
lawfully cancelled agreement.
In
BMW Financial Services (SA) (Pty) Ltd v C J Donkin
27
Wallis J
correctly concluded as follows:
"It follows that the
defendant's contention that a cancelled instalment sale agreement,
such as her agreement with the plaintiff
can be reinstated as a
result of a re-arrangement flowing from a court's under section 85
of the NCA cannot be sustained. The
NCA does not itself expressly
provide for such reinstatement and all the textual and contextual
indications point in the opposite
direction. Accordingly the
defendant's invocation of section 85 in this case can only operate
in respect of her obligations to
the plaintiff arising from the
cancellation of the instalment sale agreement and cannot serve to
reinstate that agreement. That
being so her right to retain
possession of the motor vehicle was terminated by the plaintiff's
cancellation of the instalment
sale agreement. That right cannot be
restored through the mechanisms of the NCA."
[50] After
the lawful cancellation of the agreements the rights and obligations
of the parties as they exist after the cancellation
will then be
considered and not the rights and obligations whilst the agreements
were still extant.
28
[51] Mr Snellenburg also argued
that the defendants have a valid defence because the credit
agreements were concluded recklessly.
According to Mazibuko the
agreement between him and the plaintiff is reckless because the
plaintiff failed to conduct an assessment
in terms of section 81(2)
of the Act or because the agreement with him despite the fact that
the preponderance of information
available to the plaintiff
indicated that he did not understand the risks, costs or obligations
under the credit agreement or
that by entering into the agreement he
would become over-indebted. He then proceeds to state that the
plaintiff did not enquire
what his monthly income and expenses were.
[52] Mr Snellenburg argued that
the vehicles should not be returned because, if the court declares
that the agreement is reckless
because the plaintiff failed to
conduct an assessment or the preponderance of information available
indicated to the plaintiff
that the defendant did not generally
understand the risks, costs and obligations under the proposed
credit agreement, the court
may set aside all or part of the
defendant's rights and obligations under the agreement (section
83(2)(a)) or suspend the force
and effect of the agreement (section
83(2)(b)).
[53] He also pointed out that
if the court finds that the agreement is reckless because the
preponderance of the available information
indicated that entering
into the agreement would make the defendant over-indebted the court
must consider whether the consumer
is over-indebted at the time of
the court proceedings and if the court concludes that the defendant
is over-indebted the court
may suspend the force and affect of the
agreement until a specific date and restructure the consumer's
obligations under any
other credit agreements, in accordance with
section 87.
[54] I do not agree with Mr
Snellenburg that the possibility or probability of a finding that
the agreement is reckless means
that the motor vehicle may not be
returned to the plaintiff pending such determination. Mr
Snellenburg's argument is that all
or part of the rights and
obligations of the consumer may be set aside. He argues that if the
vehicles are handed back at this
stage then the court would not, at
a later stage, be able to make an order that governs all the rights
and obligations of the
consumer. This argument is untenable. It in
effect means that the defendants may be in possession of and use the
vehicles without
paying therefor pending a determination, one day,
during the trial, that the agreements were reckless. If the court
ultimately
determines that the agreements were reckless and set them
aside, the defendants would walk away from the agreements after
having
enjoyed the use of the car without paying therefor. On the
other hand if the court ultimately determines that the agreements
were not reckless the defendants would have enjoyed the use of the
vehicle, pending the determination, without paying therefor.
[55] I agree with Mr Mundell's
submission that the Act does not contemplate such a situation. The
defendants can not have "the
money and the box". It has
been pointed out that the
"purpose
of the NCA is to provide a more efficient and equitable credit
system by balancing the right of credit providers
and consumers. The
intention of the legislature was no to shift the balance of power
somuch that all power in the credit relationship
would amass into
the hands of consumers. The NCA is also structured in such a way as
to prevent "over-indebtedness"
and to provide for more
efficient discharge of consumer debts. If, as the defendants
maintain, the purpose of the Act was to
enable an over-indebted
consumer to retain the lenders depreciating security while at the
same time not making debt payments,
the NCA would make it
significantly more unlikely that over-indebted consumer would ever
discharge their indebtedness. The restoration
of a lender's security
to the lender while it still has value facilitates the efficient
reduction and discharge of indebtedness.
The retention of
deteriorating security has the opposite effect."
29
[56] I agree. The Act did not
usher in an era of bread and circuses for over-indebted consumers
but it is rather an attempt to
curb and ultimately stop reckless
credit granting and to provide for an efficient discharge of
consumer debt.
[57] Even on the assumption
that the defendants have prima facie shown that the agreements were
reckless or that they are over-indebted;
there exists no basis for
them to remain in possession of the vehicles after cancellation of
the agreements.
[58] In the
matter of
SA
Taxi Securitisation (Ptv) Ltd v Booi & 4 other similar
matters
30
Placket
J correctly came to the following conclusion in respect of a
reckless credit defence in a summary judgment application
for the
return of a vehicle:
"I am in respectful
agreement with both Wallis J and Levenberg AJ and thus conclude that
even if the credit extended to the
defendants was recklessly
extended, that is no defence to the claims of the plaintiffs for the
return of the vehicles... I have,
however, assumed in their favour,
without deciding, that they have raised their defence adequately for
purposes of addressing
the central issue that I have identified."
[59] After the vehicles have
been returned the remaining rights and obligations will be subjected
to orders in terms of section
83(2) and (3) of the Act.
[60] Mr Zietsman on behalf of
the NCR conceded that a lawfully cancelled contract can not be
reinstated by a court. He however
argued that these matters should
be decided with reference to section 88(3) of the Act. According to
Mr Zietsman the plaintiff
may in terms of section 88(3) notexercise
or enforce by litigation or other judicial process any right or
security under the
credit agreement until the consumer is in
default. This argument neglects the fact that section 88(3) is
subjected to section
86(9) and (10).
[61] In S v
Marwane
31
Miller AJ
said the following in relation to the phrase "subject to":
"The
purpose of the phrase "subject to" in such a context is to
establish what is dominant and what subordinate
or subservient; that
to which a provision is "subject to", is dominant - in
case of conflict it prevails over that
which is subject to it.
Certainly, in the field of legislation, the phrase has this clear
and accepted connotation. When the
legislator wishes to convey that
(that) which is now being enacted is not to prevail in circumstances
where it conflicts, or
inconsistent or incompatible, with a
specified other enactment, it very frequently, if not almost
invariably, qualifies such
enactment by the method of declaring it
to be "subjected to" the other specified one."
32
[62] The plaintiff in this
matter validly and lawfully invoked the provisions of section 86(10)
of the Act to terminate the review.
That being the case, section
88(3) of the Act is rendered irrelevant because it is subject to
section 86(10).
[63] I am not satisfied that
the defendants raised a defence that is good in law to the
plaintiff's claim for the return of the
vehicles. There is no lawful
reason why I should exercise my discretion against the plaintiff by
refusing the applications.
[64] Mr Snellenburg did not
make any submission in relation to costs. It should follow the
success. I do not propose to make any
costs order against the NCR.
Costs should be granted on the agreed scale.
[65] I accordingly make the
following orders.
a) The defendant (MAZIBUKO) in
case no: 555/2010 is ordered to return to the plaintiff forthwith
the 2009 TOYOTA QUANTUM SES'FIKILE
with engine number 2TR8193708 and
chassis number JTFSX22P706061621. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
b)
The
defendant (MPHATSOANYANE) in case no: 409/2010 is ordered to return
to the plaintiff forthwith the 2008 FOTON 2.2 PETROL with
engine
number BJ491EQ1712148 and chassis number LVCB1DWA47B017667. The
defendant is ordered to pay the plaintiff's costs on the
attorney
client scale.
c)
The
defendant (NAILE) in case no: 556/2010 is ordered to return to the
plaintiff forthwith the 2008 TOYOTA QUANTUM SES'FIKILE
with engine
number 2TR8159551and chassis number JTFSX22P906050068. The defendant
is ordered to pay the plaintiff's costs on the
attorney client
scale.
d)
The
defendant (ABRAMS) in case no: 708/2020 is ordered to return to the
plaintiff forthwith the 2007 TOYOTA SIYAYA with engine
number
4Y9195097 and chassis number AHT41YH630987162. The defendant is
ordered to pay the plaintiff's costs on the attorney client
scale.
e)
The
defendant (MPHALE) in case no: 709/2010 is ordered to return to the
plaintiff forthwith the 2008 POLAR SUN with engine number
952661 and
chassis number LL2TD32R38J000544. The defendant is ordered to pay
the plaintiffs costs on the attorney client scale.
f) The defendant (LEBAKA) in
case no: 779/2010 is ordered to return to the plaintiff forthwith
the 2007 C.A.M INYATHI with engine
number SF491QE070652069A and
chassis number LFZBBAGC77A006009. The defendant is ordered to pay
the plaintiff's costs on the attorney
client scale.
g)
The
defendant (JANUARY) in case no: 845/2010 is ordered to return to the
plaintiff forthwith the 2009 TOYOTA QUANTUM SES'FIKILE
with engine
number 2TR8203915 and chassis number JTFSX22P306065522. The
defendant is ordered to pay the plaintiff's costs on
the attorney
client scale.
h)
The
defendant (MIFI) in case no: 846/2010 is ordered to return to the
plaintiff forthwith the 2009 TOYOTA QUANTUM SES'FIKILE with
engine
number 2TR8193351 and chassis number JTFSX22P106061548. The
defendant is ordered to pay the plaintiff's costs on the attorney
client scal
i) The defendant (NHLABATHI) in
case no: 982/2010 is ordered to return to the plaintiff forthwith
the 2007 C.A.M INYATHI with
engine number SF491QE070651895A and
chassis number LFZBBAGC47A006047. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
j) The defendant (MOKHELE) in
case no: 983/2010 is ordered to return to the plaintiff forthwith
the 2007 C.A.M INYATHI with engine
number SF491QE070551069A and
chassis number LFXBBAGC77A005362. The defendant is ordered to pay
the plaintiff's costs on the attorney
client scale.
k) The defendant (TLADI) in
case no: 1189/2010 is ordered to return to the plaintiff forthwith
the 2009 TOYOTA QUANTUM SES'FIKILE
with engine number 2TR8175870 and
chassis number JTFSX22P606058306. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
I) The defendant (MPONYA) in
case no: 1190/2010 is ordered to return to the plaintiff forthwith
the 2008 C.A.M INYATHI XGD 2.2i
HIGH ROOF with engine number
SF491QE071160777A and chassis number LFZBBAGC7H012298. The defendant
is ordered to pay the plaintiff's
costs on the attorney client
scale.
m) The defendant (DUIKER) in
case no: 1191/2010 is ordered to return to the plaintiff forthwith
the 2007 C.A.M INYATHI with engine
number SF491QE070450451A and
chassis number LFZBBAGC87A004334. The defendant is ordered to pay
the plaintiff's costs on the attorney
client scale.
n) The defendant (MOTSATSE) in
case no: 1252/2010 is ordered to return to the plaintiff forthwith
the 2008 C.A.M INYATHI XGD 2.2
HIGH ROOF with engine number
SF491QE071161362A and chassis number LFZBBAGC57A012486. The
defendant is ordered to pay the plaintiff's
costs on the attorney
client scale.
o) The defendant (LEKEKA) in
case no: 1282/2010 is ordered to return to the plaintiff forthwith
the 2008 TOYOTA QUANTUM SES'FIKILE
with engine number 2TR8122152 and
chassis number JTFSX22P906036168. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
p) The defendant (MAY) in case
no: 1385/2010 is ordered to return to the plaintiff forthwith the
2009 TOYOTA QUANTUM SES'FIKILE
with engine number 2TR8227490 and
chassis number JTFSX22P8068071378. The defendant is ordered to * pay
the plaintiffs costs on
the attorney client scale.
q) The defendant (MOKEKI) in
case no: 1412/2010 is ordered to return to the plaintiff forthwith
the 2007 TOYOTA SIYAYA with engine
number 4Y9195596 and chassis
number AHT41YH6309087868. The defendant is ordered to pay the
plaintiff's costs on the attorney
client scale.
r) The defendant (PEDI) in case
no: 1494/2010 is ordered to return to the plaintiff forthwith the
2009 TOYOTA QUANTUM SES'FIKILE
with engine number 2TR8195337 and
chassis number JTFSX22P806062082. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
s) The defendant (SEKHALO) in
case no: 1495/2010 is ordered to return to the plaintiff forthwith
the 2008 TOYOTA QUANTUM 2.7 with
engine number 2TR8096015 and
chassis number JFTSX22PX00010977. The defendant is ordered to pay
the plaintiff's costs on the attorney
client scale.
t) The defendant (SITHOLE) in
case no: 1548/2010 is ordered to return to the plaintiff forthwith
the 2007 TOYOTA SIYAYA with engine
number 4Y9191490 and chassis
number AHT41YH6309083026. The defendant is ordered to pay the
plaintiff's costs on the attorney
client scale.
u) The defendant (RANTSOARENG)
in case no: 1549/2010 is ordered to return to the plaintiff
forthwith the 2007 C.A.M INYATHI with
engine number
SF491QE070653076A and chassis number LFZBBAGC57A007479. The
defendant is ordered to pay the plaintiff's costs on
the attorney
client scale.
v) The defendant (MODJIDJI) in
case no: 1550/2010 is ordered to return to the plaintiff forthwith
the 2007 C.A.M INYATHI with
engine number SF491QE07085561A and
chassis number LFZBBAGC47A008185. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
w) The defendant (MOLAHLEHI) in
case no: 1609/2010 is ordered to return to the plaintiff forthwith
the 2007 C.A.M INYATHI with
engine number SF491QE070653124A and
chassis number LFZBBAGC27A007066. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
x) The defendant (MPHANE) in
case no: 2761/2010 is ordered to return to the plaintiff forthwith
the 2009 TOYOTA QUANTUM SES'FIKILE
with engine number 2TR8171677 and
chassis number JTFSX22P106053983. The defendant is ordered to pay
the plaintiff's costs on
the attorney client scale.
y) The defendant (MASIU) in
case no: 3326/2010 is ordered to return to the plaintiff forthwith
the 2007 TOYOTA SIYAYA with engine
number 4Y9191394 and chassis
number AHT41YH630908. The defendant is ordered to pay the
plaintiff's costs on the attorney client
scale.
C.J. MUSI, J
On
behalf of the Plaintiff: Adv. A SUBEL SC
Adv. ARG MUNDELL
Instructed
by:MARIE-LOU BESTER INC
JOHANNESBURG
On
behalf of the Defendant Adv. N SNELLENBURG
Adv. J ELS
Instructed
by: ROSENDORFF REITZ BARRY BLOEMFONTEIN
On
behalf of the NCR: Adv. PZIETSMAN SC
Adv
PJJZIETSMAN
Instructed
by: HONEY ATTORNEYS BLOEMFONTEIN
1
Section
12 (1) of the Act reads as follows:
"Establishment
of National Credit Regulator.
-
There is hereby established a body to be known as the National
Credit Regulator, which -
(a)
has
jurisdiction throughout the Republic;
(b)
is
a juristic person;
(c)
is
an independent and subject only to the Constitution and the law;
(d)
must
exercise its functions in accordance with the Act;
(e)
must
be impartial; and
(f)
must
perform its functions -
(i)
in
as transparent a manner as is appropriate having regard to the
nature of . the specific function; and
(ii)
without
fear, favour, or prejudice."
2
The
plaintiff is registered in terms of section 40 of the Act, which
reads as follows: "40
Registration
of
credit
providers. -
(1)
A person must apply to
be
registered
as a credit provider if -
(a)
that person, alone or in conjunction with any associated person, is
the credit provider under at least 100 credit agreements,
other than
incidental credit agreements; or
(b)
the total principal debt owed to that credit provider under all
outstanding credit agreements, other than incidental credit
agreements, exceeds the threshold prescribed in terms of section 42
(1)"
3
3
See
section 86 (1) which reads as follows:
"A
consumer may apply to a debt counsellor in the prescribed manner and
form to have the consumer declared over indebted."
4
Which
reads: " On receipt of an application in terms of subsection
(1), a debt counsellor must -
(b)
notify, in the prescribed manner and form -
(i)
all
credit providers that are listed in the application; and
(ii)
every
registered credit bureau"
5
Section
86 (5) to (8) reads as follows:
"A
consumer who applies to a debt counsellor, and each credit provider
contemplated in subsection (4) (b), must -
(a)
comply
with any reasonable request by the debt counsellor to facilitate the
evaluation of the consumer's state of indebtedness
and the prospects
for responsible debt re -arrangement; and
(b)
participate
in good faith in the review and in any negotiations designed to
result in responsible debt re-arrangement.
6
A
debt counsellor who has accepted an application in terms of this
section must determine, in the prescribed manner and within
the
prescribed time -
(a)
whether
the consumer appears to be over-indebted; and
(b)
If
the consumer seeks a declaration of reckless credit, whether any of
the consumer' credit agreements appear to be reckless.
7
If,
as a result of an assessment conducted in terms of subsection (6),a
debt counsellor reasonably concluded that -
(a)
the consumer is not over-indebted, the debt counsellor must reject
the application, even if the debt counsellor has concluded
that a
particular credit agreement was reckless at the time it was entered
into;
(b)
the consumer is not over-indebted, but is nevertheless experiencing,
or likely to experience, difficulty satisfying all the
consumer's
obligations under credit agreements in a timely manner, the debt
counsellor may recommend that the consumer and the
respective credit
providers voluntarily consider and agree on a plan of debt
re-arrangement; or
(c)
the consumer is over-indebted, the debt counsellor may issue a
proposal recommending that the Magistrate's Court make either
or
both of the following orders
(i)
that
one or more of the consumer's credit agreements be declared to
be
reckless credit, if the debt counsellor has concluded that
those agreements
appear to be reckless; and
(ii)
that
one or more of the consumer's obligations be re-arranged by -
(aa)
extending the period of the agreement and reducing the amount of
each payment due accordingly;
(bb)
postponing during a specified period the dates on which payments are
due under the agreement;
(cc)
extending the period of the agreement and
(dd)
recalculating the consumer's obligations because of contraventions
of part A or B of Chapter 5, or Part A of Chapter 6.
8
If a debt counsellor makes a recommendation in terms of subsection
(7) (b) and -
(a)
the consumer and each credit provider concerned accept that
proposal, the debt counsellor must record the proposal in the
form
of an order, and if it its consented to by the consumer and each
credit provider concerned, file it as a consent order in
terms of
section 138; or
(b)
if paragraph (a) does not apply, the debt counsellor must refer the
matter to the Magistrate's Court with the recommendation.
6
Section
87 reads as follows:
"Magistrate's
Court may re-arrange consumer's obligations.
-
(1) If a debt counsellor makes a proposal to the Magistrate's Court
in terms of section 86 (8) (b) or a consumer applies to
the
Magistrate's Court in terms of section 86 (9), the Magistrate's
Court must conduct a hearing and, having regard to the proposal
and
information before it and the customer's financial means, prospect
and obligations, may -
(a)
reject
the recommendation or application as the case may be; or
(b)
make
-
(i)
an
order declaring any credit agreement to be reckless, and an order
contemplated in section 83 (2) or (3), if the Magistrate's
Court
concludes that the agreement is reckless;
(ii)
an
order re - arranging the consumer
's
obligations
in any manner contemplated in section 86 (7) (c) (ii); or
(iii)
Both
orders contemplated in subparagraph (i) and (ii).
7
Section
86 reads as follows: "If a consumer is in default under a
credit agreement that is being . reviewed in terms of this
section,
the credit provider in respect of that credit agreement may give
notice to terminate the review in the prescribed manner
to —
(a)
the
consumer;
(b)
the
debt counsellor; and
(c)
the
National Credit Regulator, at any time at least 60 business days
after the date on which the consumer applied for the debt
review.
8
Section
86 (11) reads as follows: "If a credit provider who was given
notice to terminate a review as contemplated in subsection
(10)
proceeds to enforce that agreement in terms of Part C of Chapter 6,
the Magistrate's Court hearing the matter may order
that the debt
review resume on any conditions the court considers to be just in
the circumstances."
9
Section
88 (3) reads as follows: "Subject to section 86 (9) and (10), a
credit provider who receives notice of court proceedings
contemplated in section 83 or 85, or notice in terms of section 86
(4) (b) (i), may not exercise or enforce by litigation or
other
judicial process any right or security under that credit agreement
until -
(a)
the
consumer is in default under the credit agreement; and
(b)
one
of the following has occurred:
(i)
.
An event contemplated in subsection (1) (a) through (c); or
(ii)
The
consumer default on any obligation in terms of a re - arrangement
agreed between the consumer and credit providers, or ordered
by a
court or the Tribunal.
10
See
footnote 5.
11
See
page 42 3 A-B and G-H
12
Section
83 (1) of the Act reads as follows:
Court
may suspend reckless credit agreement. -
(1)
Despite any provision of law or agreement to the contrary, in any
court proceedings in which a credit agreement is be considered,
the
court may declare that the credit agreement is reckless, as
determined in accordance with this Part.
13
Section
83(2) and (3) of the Act reads as follows:
(2)
if
a court declares that a credit agreement is reckless in terms of
section 80 (1) (a) or 80
(1)
(b) (i), the court may make an order-
(a)
setting
aside all or part of the consumer's rights and obligations under
that agreement, as that court determines just and reasonable
in the
circumstances; or
(b)
Suspending
the force and effect of that credit agreement in accordance with
subsection (3) (b) (i).
(3)
If
a court declares that a credit agreement is reckless in terms of
section 80 (1) (b) (ii), the Court-
(a)
must
further consider whether the consumer is over -indebted, at the time
of those court proceedings; and
(b)
if
the court concludes that the consumer is over - indebted, the court
may make an order -
(i)
suspending
the force and effect of that credit agreement until a date
determined by the court when the order of suspension; and
(ii)
restructuring
the consumer's obligations under any other credit agreements, in
accordance with section 87.
14
First
Rand Bank Ltd t/a First National Bank v JGS Seyffert & Another &
3 Other similar cases under case number 212862/2010;
23132/2010;
23380/2010 and 9987/2010 SGHC judgment delivered on 11 October 2010
at paragraph 15
15
See
section 123(1) which reads "A credit provider may terminate a
credit agreement before the time provided in that agreement
only in
accordance with section..." See also First Rand Bank Ltd t/a
First "National Bank v JGS Seyffert supra.
16
1931
WLD 247
at 251-252.
17
See
Trust Bank van Suid Afrika Bpk v Eales en Ander
1989 (4) SA 509
(TPD) at 514 B-F.
18
1958
(1) SA 555
(AD) at 561 A-E
19
1965
(1)SA 100 (AD) at 105 A-G
20
Section
129(3) reads as follows " Subject to subsection (4), a consumer
may
(a)
at
any time before the credit provider has cancelled the agreement
re-instate
a credit agreement that is in default by paying to the credit
provider all amounts that are overdue, together with
the credit
provider's permitted default charges and reasonable costs of
enforcing the agreement up to the time of re-instatement;
and
(b)
after
complying with paragraph (a), may resume possession of any property
that had been repossessed by the credit provider pursuant
to an
attachment order"(My underlining)
21
See
Noble v Laubscher,
1905 T.S. 125
22
unreported
case number 19638/2008 North Gauteng High Court
23
Rule
55 (1) provide that:
"Except
where otherwise provided, an application to the court for an order
affecting any other person shall be on notice,
in which shall be
stated shortly the terms of the order applied for and the time when
the application will be made to the court..."
24
See
National Credit Regulator v Nedbank (Pty) Ltd and Others supra.
25
Unreported
judgment in case number 9222/2010 delivered on 20 September 2010 at
paragraph 52.
26
See
section 86(5)(b) of the Act.
27
Kwazulu-Natal
High Court case number 15548/08 judgment delivered on 4 June 2009 at
paragraph
28
See
BMW Financial Services v C J Donkin supra at paragraph 31.
29
Per
Levenberg, AJ in SA Taxing Securitisation (Pty) Ltd v Mbatha
unreported judgement in case no 51330/09; 52948/09 and 53080/09
South Gauteng High Court, Johannesburg at paragraph 32 and 33.
30
Eastern
Cape High Court case number 4077/2009 judgement delivered on 20 May
2010
31
1982
(3) SA 717
(AD) at 747 H to 748 A
32
See
also Ynuico Ltd v Minister of Trade and Industry
[1996] ZACC 12
;
1996 (3) SA 989
(cc) at paragraph 8