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[2015] ZACC 15
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Chevron SA (Pty) Limited v Wilson t/a Wilson's Transport and Others (CCT 88/14) [2015] ZACC 15; 2015 (10) BCLR 1158 (CC) (5 June 2015)
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Heads of arguments
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 88/14
DATE: 05 JUNE 2015
In the matter between:
CHEVRON SA (PTY)
LIMITED
............................................................................................
Applicant
And
DENNIS EDWIN WILSON t/a WILSON’S
TRANSPORT
.....................................
First
Respondent
MINISTER OF
FINANCE
......................................................................................
Second
Respondent
MINISTER OF TRADE AND
INDUSTRY
..............................................................
Third
Respondent
NATIONAL CREDIT
REGULATOR
.....................................................................
Fourth
Respondent
Neutral citation:
Chevron
SA (Pty) Limited v Wilson t/a Wilson’s Transport and Others
[2015] ZACC 15
Coram:
Moseneke
DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J,
Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Judgment:
Madlanga J (unanimous)
Heard
on:
24 March 2015
Decided
on:
5 June 2015
Summary:
National
Credit Act 34 of 2005
— constitutional validity of
section
89(5)(b)
— section is procedurally unfair — National
Credit Amendment Act 19 of 2014 — section 27(a) and (b)
Unlawful credit agreements — refund of
money paid under credit agreement if credit provider unregistered —
substantive
and procedural fairness of mandatory refund
Constitutional challenge — section 25(1)
of the Constitution — arbitrary deprivation of property —
procedural
arbitrariness — lack of judicial discretion —
less restrictive means
Unjustified enrichment —
condictio
ob turpem vel iniustam causam
—
creditor
free from turpitude —
par delictum
rule
ORDER
Application for confirmation of the order of the
Western Cape Division of the High Court, Cape Town (Baartman J):
1. Condonation is granted for
the
late filing of the statement of facts by
the
applicant and the third and fourth
respondents.
2. Condonation is granted for the late filing of
further written submissions by the applicant and the first
respondent.
3. The order made by the Western Cape Division of
the High Court is confirmed to the extent set out below:
3.1
Section 89(5)(b)
of the
National Credit Act 34 of
2005
is declared inconsistent with the Constitution and invalid.
3.2 To remedy the defect, from 5 June 2014 to 13
March 2015,
section 89(5)
of the
National Credit Act is
deemed to
read as follows:
“
(5) If a credit agreement is unlawful in
terms of this section, despite any other legislation or any provision
of an agreement to
the contrary, a court must make a just and
equitable order including but not limited to an order that:
(a) The credit agreement is void as from the date the
agreement was entered into.”
4. The orders in
paragraphs 3.1 and 3.2 above have no effect on matters in which final
judgment has been delivered and in which
no appeal or application for
leave to appeal is pending.
JUDGMENT
MADLANGA
J (Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J,
Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring):
Introduction
[1]
These are confirmation proceedings brought
in terms of section 172(2)(a) of the Constitution.
[1]
In the Western Cape Division of the High Court, Cape Town (High
Court) Baartman J granted an order declaring section 89(5)(b)
of the
National Credit Act
[2]
(NCA) inconsistent with the Constitution on the basis that it permits
arbitrary deprivation of property in contravention of section
25(1)
of the Constitution.
[3]
[2]
The NCA was amended by the National Credit
Amendment Act
[4]
(Amendment Act) after the initiation of proceedings but before the
High Court order was made on 5 June 2014. The President
had assented to the amendment in May 2014. However, the
Amendment Act had not yet come into force. It took effect on
13
March 2015.
[3]
In order to remedy the defect, the High
Court reformulated the impugned section. The reformulation
mirrors the wording of
the Amendment Act.
[5]
The parties are in agreement that the High Court’s order of
constitutional invalidity should be confirmed. They
also agree
that the reformulation by the High Court and the recent amendment
cure the constitutional defect in section 89(5)(b).
Background
[4]
Facts
relevant to the determination of this matter are common cause.
In 1997 the applicant, Chevron SA (Pty) Limited (Chevron),
extended
credit to the first respondent, Dennis Edwin Wilson t/a Wilson’s
Transport (Mr Wilson), for the purchase of petroleum
products.
Chevron provided Mr Wilson’s vehicles with diesel at its Caltex
filling stations and supplied Mr Wilson with
diesel in bulk to a tank
at his business premises. Until a dispute arose between the
parties in 2008, Mr Wilson paid the
amount owing to Chevron at the
end of each month upon receiving details of the month’s
purchases.
[5]
In
2008 Mr Wilson contested the accuracy of Chevron’s billing.
Negotiations on this did not bear fruit. In 2010,
Chevron
brought suit in the Wynberg Magistrate’s Court, Cape Town
(Magistrate’s Court) for payment of the outstanding
balance
which – according to Chevron – was in the amount of
R3 330 977.03.
[6]
During the pre-trial conference process,
Chevron accepted that it was required to be registered as a credit
provider in terms of
section 40(1) of the NCA, but that it was not,
in fact, registered.
[6]
Section 40(4) of the NCA provides:
“
A credit
agreement entered into by a credit provider who is required to be
registered in terms of subsection (1) but who is not
so registered is
an unlawful agreement and void to the extent provided for in section
89.”
[7]
In
terms of section 89(2)(d) a credit agreement is unlawful if, at the
time it was concluded, the credit provider was unregistered
and the
NCA requires that credit provider to be registered. If a credit
agreement is unlawful in terms of section 89, section
89(5)(a)
enjoins the court concerned to declare the agreement void as from the
date it was entered into. Section 89(5)(b)
then adds:
“
If a credit agreement is unlawful in
terms of this section, despite any provision of common law, any other
legislation or any provision
of an agreement to the contrary, a court
must order that
—
. . .
(b) the credit provider
must refund to the
consumer any money paid by the consumer under that agreement
to
the credit provider, with interest calculated—
(i) at the rate set out in that agreement; and
(ii) for the period from the date on which the
consumer paid the money to the credit provider, until the date the
money is refunded
to the consumer”. (Emphasis added.)
[8]
From 1997 to 2009 Mr Wilson had made
payments to Chevron in terms of the credit agreement. Section
89(5)(b) exposed Chevron
to the risk of having to repay Mr Wilson
all amounts paid after the NCA came into effect.
[7]
Amounts paid after the NCA came into force
totalled approximately R33 million.
[9]
By agreement between Chevron and Mr Wilson,
the Magistrate granted an order in the following terms: (i) declaring
that the agreements
concluded by Chevron and Mr Wilson from the
inception of the NCA constituted credit agreements as envisaged in
the NCA; (ii) declaring
the agreements unlawful and void in terms of
sections 40 and 89 of the NCA; and (iii) postponing the trial
indefinitely to enable
Chevron to institute proceedings challenging
the constitutional validity of section 89(5) of the NCA.
High Court
[10]
Before
the High Court, Chevron contended that section 89(5)(b) permits an
arbitrary deprivation of property which constitutes an
infringement
of section 25(1) of the Constitution. The arbitrary deprivation
stems from the fact that section 89(5)(b)
makes it obligatory
for courts to order the refund of all amounts paid under the invalid
agreement, leaving no room for the exercise
of judicial discretion.
[11]
The third respondent, the Minister of Trade
and Industry, and the fourth respondent, the National Credit
Regulator, agreed that
section 89(5)(b) was constitutionally invalid
for the reason advanced by Chevron. They reached an agreement with
Chevron on how
to reformulate the provision in order to remedy its
unconstitutionality. Mr Wilson later also accepted the proposal.
[8]
[12]
The High Court accepted Chevron’s
argument.
[9]
It also found that the arbitrary deprivation could not be reasonably
justified in terms of section 36 of the Constitution.
[10]
It adopted the Amendment Act’s wording of section 89(5)
[11]
and handed down the following order:
“
1. That Section 89(5)(b) of the National
Credit Act 34 of 2005 (the Act) is declared invalid and
unconstitutional.
2. That, to remedy the defect, section 89(5) of the
Act be reformulated to read as follows:
(5) If a credit agreement is unlawful in terms of
this section, despite any other legislation or any provision of an
agreement to
the contrary, a court must make a just and equitable
order including but not limited to an order that:
(a) The credit agreement is void as from the date the
agreement was entered into
(b) . . . . . . . . . . . . . . . . . . . . . .
3. That the orders in paragraphs 1 and 2 above shall
have no impact on matters in which final judgment has been delivered
and in
which no application for leave to appeal is pending.
4. That each party shall be liable for its own legal
costs, including the costs of counsel, for this application.
5. That these orders are referred to the
Constitutional Court for confirmation in terms of section 172(2)(a)
of the Constitution.”
In this Court
[13]
The parties agree that the High Court’s
order should be confirmed in full, albeit they diverge on some of the
reasons. This
agreement notwithstanding, it is incumbent upon this
Court to determine that the impugned section is indeed
constitutionally invalid
before confirming the High Court’s
order of invalidity.
[12]
Before dealing with this question, there is a matter that must be
dealt with summarily.
[14]
Must
this Court still decide whether to confirm the High Court’s
declaration of constitutional invalidity in light of the
fact that
the impugned section has since been amended; and the amendment has
already taken effect? Yes. The applicant’s case
is still
pending before the Magistrate’s Court; and it is governed by
the impugned section. Possibly, there are other pending
cases to
which the old section 89(5) is applicable.
Is section 89(5)(b) constitutionally invalid?
[15]
Under
this head a number of issues arise, namely—
(a)
whether monies paid to a credit provider by
a consumer
[13]
constitute property;
(b)
if
they do, whether their repayment by the credit provider to the
consumer in terms of section 89(5)(b) amounts to deprivation;
(c)
if
it does amount to deprivation, whether the deprivation is arbitrary;
(d)
if
available to the credit provider upon repayment of the monies to the
consumer, whether an unjustified enrichment claim expunges
any
arbitrariness that might otherwise exist; and
(e)
whether
the limitation is justified in terms of section 36(1) of the
Constitution.
Property
[16]
While
this Court has deemed it “unwise to attempt . . . a
comprehensive definition of property”,
[14]
it cannot be gainsaid that money in hand constitutes a property
interest protected by section 25 of the Constitution.
[15]
Unlike the personal right this Court was concerned with in
Opperman
,
[16]
here Chevron received payment of approximately R33 million.
Deprivation
[17]
On
the issue of deprivation, this Court has held:
“
Whether
there has been a deprivation depends on the extent of the
interference with or limitation of use, enjoyment or exploitation.
.
. . [S]ubstantial interference or limitation that goes beyond
the normal restrictions on property use or enjoyment found
in an open
and democratic society would amount to deprivation.
”
[17]
[18]
When dealing with an unlawful credit
agreement, section 89(5)(b) enjoins a court to direct, in all
circumstances, the credit provider
to repay to the consumer all
amounts paid under the credit agreement, together with interest.
Being forced by an order of
court or operation of law to part with
payment already received from the consumer is the very essence of
deprivation of property.
[18]
And it is a substantial deprivation because Chevron is totally
divested of the monies which it received under the credit
agreement.
[19]
This is an even stronger case of
deprivation than what was at issue in
Opperman
.
[19]
That decision
dealt with
section 89(5)(c) of the NCA,
[20]
which was very closely related to the section now
before us. There, this Court found that taking away a credit
provider’s
legal remedies to recover monies paid by it to the
consumer under a credit agreement constituted an arbitrary
deprivation of property.
Surely, if eliminating a credit
provider’s ability potentially to recover money in the future
is a deprivation of property,
it follows more strongly that ordering
the refund of money that a credit provider has already received is a
deprivation.
Is the deprivation
arbitrary?
Arbitrariness
[20]
This
Court has fully canvassed the meaning of “arbitrary” in
prior judgments. Ackermann J had this to say in
FNB
:
“
Having regard
to what has gone before, it is concluded that a deprivation of
property is ‘arbitrary’ as meant by section
25 when the
‘law’ referred to in section 25(1) does not provide
sufficient reason for the particular deprivation in
question or is
procedurally unfair.”
[21]
[21]
It is doubtful that the first of these
requirements is met.
The proscription
of unlawful credit agreements serves the crucial purpose of
protecting consumers. It can hardly be said that
the law in
issue here “does not provide sufficient reason” for the
deprivation.
[22]
[22]
Regarding procedural unfairness, the
primary concern is that the court hearing the matter is given no
discretion when making an
order under section 89(5)(b).
[23]
Recently, in
Opperman
,
Van der Westhuizen J explained why section 89(5)(c) ran afoul of
section 25(1) of the Constitution:
“
The Minister
argues that the deprivation is not arbitrary. Counsel for the
Minister submitted that the procedural leg of the
inquiry is
satisfied, because a court adjudicates the matter and makes an
order.
The problem is of course
that the court is denied any discretion to decide on a just and
equitable order
. This Court
indicated in
Mohunram
that a lack of discretion on the part of a court to forfeit property
would result in an arbitrary deprivation of property.”
[24]
(Footnotes omitted and emphasis added.)
[23]
This
is equally true of section 89(5)(b). The court may not take
relevant circumstances into account. For example, the deprivation
takes place without any consideration being given to: the conduct of
the parties to the transaction; their respective financial
positions;
their levels of business and financial acumen; the possible
apportionment of blameworthiness to the parties in relation
to the
unlawfulness of the agreement; and the extent to which the credit
receiver has profited from the transaction.
[24]
The short point: section 89(5)(b) is
procedurally unfair and this renders deprivations under it
arbitrary.
[25]
Unjustified enrichment
[25]
But
does the availability of an unjustified enrichment claim negate the
arbitrariness of the deprivation to which section 89(5)(b)
subjects
the creditor? Repayment to the consumer of money paid by her to
the credit provider in exchange for goods supplied
to her may result
in the consumer retaining both. It matters not that the goods
may no longer be in the possession of the
consumer. The point
of substance is that she would have derived a benefit from them or,
at the very least, have had the opportunity
to do so.
[26]
A possible route open to the credit
provider for restitution is an unjustified enrichment claim.
[26]
The relevant enrichment action is the
condictio
ob turpem vel iniustam causam
.
[27]
Of this
Opperman
said:
“
Its
requirements are generally described as follows: ownership must have
passed with the transfer; the transfer must have taken
place in terms
of an unlawful agreement; and the claimant must tender the return of
what he or she received.”
[28]
(Footnotes omitted.)
And:
“
In order to be
successful, ordinarily the party who claims on the basis of unjust
enrichment must be free of turpitude and show
that he or she has not
acted dishonourably.”
[29]
[27]
If the credit provider is not free of
turpitude, the
par delictum
rule
stipulates that the law should not come to her aid.
[30]
But as far back as 1939, our law has recognised that a rigid
application of the rule could result in injustice. As
a result,
in
Jajbhay
the Appellate Division relaxed the rule, and infused into it the
exercise of a discretion so as to do justice between the
parties.
[31]
It is the existence of this discretion, in the context of the
enrichment claim, that is of relevance to the matter before
us.
The question is whether the possible availability of the enrichment
claim to the credit provider coupled with this discretion
negatives
or, at the very least, ameliorates the arbitrariness of the section
89(5)(b) deprivation. I say it does not.
[28]
In
the first instance, the section 89(5)(b) refund is mandatory.
On the other hand, all that the creditor is entitled to is
a claim.
That claim must still be proven. Like any claim, it may succeed
or fail bearing in mind that it is subject
to the
par delictum
rule.
[29]
The
success of an unjustified enrichment claim does not necessarily mean
that the creditor is out of the woods. Restitution
is not
guaranteed. The debtor may be impecunious or even insolvent and
subject to sequestration or winding-up proceedings.
In the case
of insolvency, the creditor will have no more than a concurrent claim
worth some cents in the rand. The debtor
may be a shell
company, existing only for the purposes of entering into the specific
credit agreement and may have little in the
way of recoverable
assets.
[30]
In
sum, I am not convinced that the availability of an unjustified
enrichment claim serves to neutralise the arbitrariness of the
deprivation to which section 89(5)(b) subjects the creditor.
Limitation analysis
[31]
This Court has previously assumed, without
deciding, that the right contained in section 25(1) may be subject to
limitation in terms
of section 36(1) of the Constitution.
[32]
This, despite that it is difficult to conceive of a situation where
arbitrary law or conduct can be reasonable and justifiable.
[33]
In light of the conclusion reached below that the limitation of the
section 25(1) right is not justified, the need to reach a firm
conclusion on this issue is obviated: I adopt an approach similar to
that in
Opperman
.
[32]
Section 36(1) of the Constitution
stipulates that a fundamental right may be limited by law of general
application only to the extent
that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom,
taking into account relevant factors including:
the nature of the right; the importance of the purpose of the
limitation; the nature
and extent of the limitation; the relationship
between the limitation and its purpose; and less restrictive means to
achieve the
purpose. To determine whether there is sufficient
reason for a deprivation, it is necessary to evaluate the
relationship
between the purpose of the law and the deprivation
caused by that law.
[34]
[33]
The prevention of, and punishment for,
unlawful credit agreements serve an important purpose. That
purpose is the protection
of consumers. But then the question
arises: are there no less restrictive means to achieve this purpose?
It is worth
noting that the National Credit Regulator concedes that
“[w]hat is . . . clear is that the reach of section 89(5)(b)
extends
beyond what is reasonably necessary to protect vulnerable
consumers”. The most strikingly apparent of available
means
is to grant a discretion to a court to make a just and
equitable order.
[35]
This allows for individualised justice. Indeed, this is the
means identified by the Legislature in the Amendment Act.
It is
excessive, unfair, inequitable and arbitrary to compel,
in
all circumstances
, an unregistered
credit provider to refund monies paid by the consumer for goods or
services it
actually
received or enjoyed, simply because that credit provider is not
registered. The operative words are “in all
circumstances”.
This is not to suggest that in some
circumstances this may not be acceptable. The problem is that
section 89(5)(b) does not
admit of exceptions to make it possible for
courts to exercise a discretion.
[34]
As
Madala J, Sachs J and Yacoob J pointed out in
Manamela
:
“
It
should be noted that the five factors expressly itemised in section
36 are not presented as an exhaustive list. They are
included
in the section as key factors that have to be considered in an
overall assessment as to whether or not the limitation
is reasonable
and justifiable in an open and democratic society. In essence,
the Court must engage in a balancing exercise
and arrive at a global
judgment on proportionality and not adhere mechanically to a
sequential check-list.” (Footnote
omitted.)
[36]
On balance, I am satisfied that the arbitrary
deprivation arising from the operation of section 89(5)(b)
constitutes an unjustifiable
limitation of the property right
contained in section 25(1) of the Constitution. Section
89(5)(b) is constitutionally invalid.
Remedy
[35]
What is a just and equitable remedy?
[37]
The parties agree that the Amendment Act adequately addresses
the constitutional infringement and that, in the circumstances,
the
appropriate remedy is the relief granted by the High Court.
Quite mindful of the need to avoid giving a stamp of approval
to
legislation the constitutional validity of which may still be
challenged before the courts, the unfettered discretion contained
in
the amending section does address the deficiency in section 89(5)(b)
of the NCA. The High Court order is appropriate.
Moreover, that type of order commends itself for it is consonant with
what the Legislature has decreed in the Amendment Act. No
concerns of
possible judicial encroachment on legislative terrain arise.
[36]
As
the Amendment Act has since taken effect, that part of the order that
is modelled on the wording of that Act must apply from
5 June 2014,
the date of the High Court’s order, to 13 March 2015, the date
on which the Amendment Act came into force.
[37]
Finally, in
Bhulwana
this Court noted that as a “general principle . . . an order of
invalidity should have no effect on cases which have been
finalised
prior to the date of the order of invalidity”.
[38]
The parties, recognising this general rule, have requested that the
order should not operate retrospectively. This is the
proper course
to adopt.
Costs
[38]
The norm in confirmation proceedings is
that a party who successfully challenges the constitutional validity
of a law is entitled
to costs.
[39]
However, the parties have agreed that each should bear its own costs.
I see no reason, in this instance, not to grant the
parties their
desire. There will be no order of costs.
Condonation
[39]
Rather
than being the exception, condonation applications are received by
this Court with disturbing frequency. Not that this Court
was ever
permissive in this regard, the time has come for it to be firm and
stern with errant litigants. It will not allow its
process to be
treated with tardiness. So, litigants have been put on notice.
Why all this? We have before us three
applications for
condonation: one by the applicant and third and fourth respondents
for the late filing of the agreed statement
of facts; and the second
and third by the applicant and first respondent, respectively, each
for the late filing of further written
submissions which were invited
by this Court. Although in respect of the one or other
application there are some features
which cause concern, on balance I
take the view that all the applications for condonation should be
granted. It is not necessary
to get into any detail on this.
Order
[40]
The
following order is made:
1. Condonation is granted for
the
late filing of the statement of facts by
the
applicant and the third and fourth
respondents.
2. Condonation is granted for the late filing of
further written submissions by the applicant and the first
respondent.
3. The order made by the Western Cape Division of the
High Court is confirmed to the extent set out below:
3.1
Section 89(5)(b)
of the
National Credit Act 34 of
2005
is declared inconsistent with the Constitution and invalid.
3.2 To remedy the defect, from 5 June 2014 to 13
March 2015,
section 89(5)
of the
National Credit Act is
deemed to
read as follows:
“
(5) If a credit agreement is unlawful in
terms of this section, despite any other legislation or any provision
of an agreement to
the contrary, a court must make a just and
equitable order including but not limited to an order that:
(a) The credit agreement is void as from the date the
agreement was entered into.”
4. The orders in
paragraphs 3.1 and 3.2 above have no effect on matters in which final
judgment has been delivered and in which
no appeal or application for
leave to appeal is pending.
For the Applicant:
For the Third Respondent:
For the Fourth Respondent:
A C Oosthuizen SC and P A Torrington
instructed by Butler Blanckenberg Nielsen Safodien Incorporated.
K Pillay instructed by the State Attorney.
S Budlender instructed by Gildenhuys Malatji
Incorporated.
[1]
Section 172(2)(a)
states:
“
The Supreme Court of Appeal, the High
Court of South Africa or a court of similar status may make an order
concerning the constitutional
validity of an Act of Parliament, a
provincial Act or any conduct of the President, but an order of
constitutional invalidity
has no force unless it is confirmed by the
Constitutional Court.”
[2]
34 of 2005.
[3]
Section 25(1) prohibits anyone from
being “deprived of property except in terms of law of general
application, and no law
may permit arbitrary deprivation of
property”.
[4]
19 of 2014.
[5]
For the amended wording, see [12].
[6]
Regarding the registration of credit
providers, section 40(1) of the NCA provides that:
“
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).”
The threshold prescribed by section
42(1) is to be determined by the Minister of Finance by notice in
the Government Gazette at
certain intervals, but cannot be less than
R500 000.
[7]
The majority of the provisions of
the NCA came into effect on 1 June 2006, although chapter 5, which
incorporates section 89,
only came into effect on 1 June 2007.
[8]
The second respondent, the Minister
of Finance, has remained silent during the proceedings both before
the High Court and this
Court.
[9]
Chevron SA (Pty) Ltd v Dennis
Edwin Wilson t/a Wilson’s Transport and Others
[2014] ZAWCHC 121
(High Court judgment) at paras 7-8.
[10]
Id at para 9. Section 36 of the
Constitution provides:
“
(1) The rights in the Bill of Rights
may be limited only in terms of law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
[11]
Section 89(5) of the NCA was amended
thus:
“
If a credit agreement is unlawful in
terms of this section, despite any other legislation or any
provision of an agreement to
the contrary, a court
must
make a just and equitable order including but not limited to an
order that
:
(a) The credit agreement is void as from the date
the agreement was entered into.” (Emphasis added.)
[12]
See
Mdodana
v Premier of the
Eastern Cape and Others
[2014]
ZACC 7
;
2014 (4) SA 99
(CC);
2014 (5) BCLR 533
(CC) at paras 17-8.
[13]
“
Credit provider” and
“consumer” are terms used in the NCA for what would be
the creditor and debtor (Chevron
and Mr Wilson, respectively, in
this case).
[14]
First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service and Another;
First National Bank of SA
Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC) (
FNB
)
at para 51.
[15]
See
FNB
id. See also
Troskie
v Von Holdt and Others
[2013] ZAECGHC 31 at para 37, where the Court noted that “it
hardly need be said that the money advanced in terms of the
agreements constitutes property” within the meaning of section
25 of the Constitution.
[16]
National Credit Regulator v
Opperman and Others
[2012]
ZACC 29
;
2013 (2) SA 1
(CC);
2013 (2) BCLR 170
(CC) (
Opperman
)
at paras 61-3.
[17]
Mkontwana v Nelson Mandela
Metropolitan Municipality and Another; Bissett and Others v Buffalo
City Municipality and Others; Transfer
Rights Action Campaign and
Others v MEC, Local Government and Housing, Gauteng, and Others
[2004] ZACC 9
;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC)
(
Mkontwana
)
at para 32.
[18]
See
Opperman
above n 16 at para 67.
[19]
Compare id at para 70.
[20]
That section provided:
“
If a credit agreement is unlawful in
terms of this section, despite any provision of common law, any
other legislation or any
provision of an agreement to the contrary,
a court must order that—
. . .
(c) all the purported rights of the
credit provider under that credit agreement to recover any money
paid or goods delivered to,
or on behalf of, the consumer in terms
of that agreement are either—
(i) cancelled, unless the court
concludes that doing so in the circumstances would unjustly enrich
the consumer; or
(ii) forfeit to the State, if the court
concludes that cancelling those rights in the circumstances would
unjustly enrich the
consumer.”
[21]
FNB
above n 14 at para 100. See also
Opperman
above n 16 at para
68.
[22]
FNB
id.
[23]
Opperman
above
n 16 at para 69.
[24]
The reference in the quotation is to
Mohunram and
Another v National Director of Public Prosecutions and Another
[2007] ZACC 4
;
2007 (4) SA 222
(CC);
2007 (6) BCLR 575
(CC) at para 121.
[25]
FNB
above
n 14 at para 100.
[26]
Opperman
above
n 16 at para 15.
[27]
Id.
[28]
Id. Where the claim arises from a
section 89(5)(b) court order, there would be no need for the tender
because the order itself
directs the return of what was received.
[29]
Id at para 16.
[30]
In pari delicto potior est
conditio possidentis
,
loosely translated, means that when the parties are equally in the
wrong, the position of the possessor is stronger. See Black
Black’s
Law Dictionary
2
ed (West Publishing, Saint Paul 1910).
[31]
Jajbhay v Cassim
1939
AD 537.
[32]
FNB
above n 14 at para 110.
[33]
Opperman
above n 16 at paras 74-5.
[34]
Mkontwana
above n 17 at para 35.
[35]
The parties also suggest that the
remedies provided for in terms of sections 150, 151 and 160 of the
NCA demonstrate an example
of less restrictive means already present
within the Act itself. These provisions give the National
Consumer Tribunal (Tribunal)
wide ranging powers, including the
power to impose administrative fines or “any other appropriate
order required to give
effect to a right” under the NCA
(section 150(i)). Section 160 makes it an offence to
contravene or fail to
comply with an order of the Tribunal.
[36]
S v Manamela and Another
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 32.
[37]
Section 172(1)(b) of the
Constitution reads:
“
When deciding a constitutional matter
in its power a court—
. . .
(b) may make any order that is just and equitable”.
[38]
S v Bhulwana, S v Gwadiso
[1995]
ZACC 11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) at para 32.
[39]
See for example
Mvumvu
and Others v Minister for Transport and Another
[2011] ZACC 1
;
2011 (2) SA 473
(CC);
2011 (5) BCLR 488
(CC) at para
56.