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interdict is further sought to restrain the first and second respondents from
publishing any statements that imply that the applicant is indebted to them or
is in default of payment.
[2] The application was triggered by the first and second respondents’ threat in a
letter of 13 October 2025 to blacklist the applicant should payment of a
disputed amount not be received within 72 hours.
THE FACTS
[3] The parties concluded a contract for the provision of transportation and
logistics services. The first and second respondents would transport
consignments of products, including for a large pharmacy group, procured by
the applicant. When the first and second respondents’ (hereafter “the
respondents”) trucks were delayed at a national border, the y imposed a
charge for standing time , which the applicant immediately placed in dispute.
This dispute arose in February 2025, and since then, the relationship between
the parties has soured.
[4] The first and second respondents claimed payment by means of a notice
dated 18 March 2025. The applicant’s attorneys undertook to conduct a
statement and debatement of the amounts on 24 March 2025 and placed the
standing charge in dispute. By 7 May 2025, the applicant had established the
amounts it owed and undertook to settle those sums by payments due up to
the end of September 2025. The applicant contends that the balance at
present comprise of disputed claims, which it intends to institute proceedings,
ostensibly for an account and debatement thereof, before a court determines
what is due and payable.
URGENCY
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[5] The application was sparked by the threat of blacklisting if the disputed
amounts were not settled within 72 hours. During argument, the respondents
advanced a contractual entitlement to report the applicant , even as a slow
payer, to credit bureaus.
[6] The clause relied upon falls under a warranty by the applicant. Contrary to
what is submitted, the warranty referred to does not create a right in the hands
of the respondents to report a delinquent or slow payer to the Regulator.It is a
warranty by the applicant as consignor that it will not provide adverse credit
information to the respondents about a consumer without giving that consumer
20 days notice and an opportunity to make representations.
[7] The contractual relationship has soured to the extent that the contract has
come to an end. The only business the parties have relates to the final
accounting upon termination of the contract.
[8] The respondents have denied urgency contending that the reporting of a
delinquent debtor to a credit bureau does not cause immediate publication of
the adverse credit information.
[9] Further, they contend that internal remedies should first be exhausted before
approaching the High Court , relying on Du Toit v Benay Sager t/a Debt
Busters and Others (Western Cape case number 16226/2017) . In that
matter, a debtor was under debt review. He approached the court for a
declarator that he is no longer over-indebted and no longer under debt review
and applied for the credit bureaux to remove his debt review status from his
credit reports. The court (per Thulare AJ) dismissed the application, finding
that the applicant had to first exhaust his internal remedies in terms of the
National Credit Act. This included the challenge to the accuracy of information
held by the credit bureaux in terms of section 72(1)(c)(ii) of the National Credit
Act, 34 of 2005 (“NCA”).
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[10] The court found that the High Court is not the forum of first instance on matters
in which both the Tribunal and the Magistrates’ Court have jurisdiction. Where
access to those tribunals under the NCA is open to an applicant, it is preferable
that the intervention of the High Court be deferred until the domestic remedies
provided for in the NCA have been exhausted. The High Court would ,
however, be the appropriate forum if the very complaint is the illegality or the
fundamental irregularity of the decision sought to be challenged ( Welkom
Village Management Board v Leteno 1958 (1) SA 490 (A) at 501 C – 593 H,
as referred to by the Court at paragraph [28]). This matter falls into the latter
category.
[11] In this matter , the first and second respondents are not registered creditor
providers. The contract in question does not fall within the purview of the
National Credit Act. The applicant had filled in a document which ostensibly is
a credit application for R250 000.00 per month. This would take it outside the
purview of the published limits (R15 000-R250 000). The ca p relates to a
transaction up to R250 000.00. The applicant further contends that its annual
turnover exceeds R1 million and , therefore, is not subject to the NCA. The
contention that the NCA does not apply to the contract has merit . (See
FirstRand Bank Ltd v Carl Beck Estates (Pty)(Ltd) 2009 3 SA384(T))
[12] Undaunted by this, the first and second respondents alleged that there is no
need for the respondents to be registered as credit providers. A referral to the
Regulator would still be permissible in terms of the provision s of the NCA. If
this were intended for consumer protection , that may be so, but an improper
motive would negate the referral.
[13] I am satisfied that the matter is urgent in these circumstances.
[14] The National Credit Act is aimed at consumer protection. It is a balancing act
between the interests of consumers and creditors (see Kubyana v Standard
between the interests of consumers and creditors (see Kubyana v Standard
Bank of South Africa Ltd 2014 (3) SA 56 (CC) at 19 -21) and imposes a
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structure of oversight consisting of a Regulator 1 and a Tribunal,2 and even
provides for appeals of Tribunal decisions to the High Court , in respect of
credit agreements.3
[15] When it comes to information provided to credit bureaus, the statute creates
an environment in which credit provid ers may , in certain circumstances ,
provide information to credit bureaus ; however, the latter is obligated to
investigate whether the information is correct or not. The creditor is entitled to
challenge the veracity of the information , and the Regulator may not publish
information so contested before conducting a verification of the information .
These obligations appear in sections 70 to 72 of the NCA.
[16] The contractual relationship between the applicant and the first and second
respondents is not characterised as a credit agreement, but as a commercial
agreement. The applicant due to its turnover of more than R1 million per
annum and the amount involved (in excess of R250 000) are both outside the
purview of the NCA.4
[17] A dispute regarding an indebtedness is a matter that the applicant has the
right to present to a court of competent jurisdiction for determination . The
provisions of the National Credit Act do not empower the Regulator to
adjudicate legal disputes as if it were a Court of law. It determines the veracity
of information provided to it and on issues arising under the NCA.
[18] As the facts of this matter differ substantially from those in the Debt Busters
case, in which the applicant was already within the realm of debt review under
the National Credit Act, the first port of call regarding a dispute on liability is
not the Regulator in terms of the NCA, but the Court.
1 Id section 12.
2 Id sections 26 & 27.
3 Id section 59(3).
4 Id section 4
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[19] The first and second respondents’ resistance to having their disputes decided
by the Courts but rather resorting to a reporting of the applicant to a credit
bureau, is nothing more than the exertion of commercial pressure to try and
enforce payment on a disputed claim. The first and second respondents ’
threat to report the applicant , denying urgency by relying upon the statutory
obligations upon a credit bureau to investigate the veracity of information
provided to it, and the applicant’s right to challeng e the veracity of such
information before the Regulator under section 72 of the NCA, is improper.
[20] The mere fact that the first and second respondents wish to report a disputed
claim to a credit bureau is indicative of an ulterior motive in doing so. It is not
about reporting credit information in the interest of consumers. It is to ex ert
pressure on the applicant to pay a disputed debt.
[21] The applicant’s right in terms of section 34 of the Constitution is to have a
dispute, capable of being resolved by the application of the law , determined
before a court of competent jurisdiction. The Regulator, in terms of the NCA,
is not a court which is capable of resolving a legal dispute on a disputed claim.
A disputed claim for payment is a matter to be determined in accordance with
the law, rather than through statutory oversight and empowering provisions,
which are designed to give effect to the p urposes of the National Credit Act ,
eg to investigate the veracity of credit information.
[22] On a conspectus of the papers , and having considered the defences , I am
satisfied that the applicant has established a case for the interdictory relief.
During argument, the applicant indicated that it will not persist with Prayers 3
and 4 of the notice of motion and that the envisaged court proceedings will be
instituted within 30 daays.
ORDER
[23] In the premises, I make the following order:
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For the First and Second Respondents : ADV WC CARSTENS
Instructed by : Van Der Merwe Attorneys