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[2011] ZAWCHC 2
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Wesbank, division of FirstRand Bank Ltd v Papier (14256/10) [2011] ZAWCHC 2; 2011 (2) SA 395 (WCC) (1 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case No 14256/10
In
the matter between:
WESBANK,
a division of
FIRSTRAND
BANK LIMITED
…......................................................
Plaintiff
and
DEON
WINSTON PAPIER
….........................................................
Defendant
and
THE
NATIONAL CREDIT
REGULATOR
….........................................................................
Amicus
curiae
Court:
TRAVERSO
DJP, GRIESEL J and DLODLO J
Heard:
5
November 2010
Delivered:
1
February 2011
ADV.
FOR PLAINTIFF:
…................................
Adv
P F Cloete, SC et Adv L N Wessels
INSTRUCTED
BY:
....................................................
Jeff
Gowar
& Associates (J R Gowar)
ADV.
DEFENDANT:
…..........
Adv
L S Kuschke, SC ; Adv A P Moller et Adv M Holland
INSTRUCTED
BY:
…............................................................
Schoeman
& Hamman Inc
(E
Kaptein)
ADV.
FOR
AMICUS
CURIAE:
…....................
Adv
F Joubert, SC et Adv P Zietsman, SC
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No 14256/10
In
the matter between:
WESBANK,
a division of
FIRSTRAND
BANK LIMITED
…...........................................................
Plaintiff
and
DEON
WINSTON PAPIER
….........................................................
Defendant
and
THE
NATIONAL CREDIT REGULATOR
….........................
Amicus
curiae
Court:
TRAVERSO
DJP, GRIESEL J and DLODLO J
Heard:
5
November 2010
Delivered:
31
January 2011
JUDGMENT
GRIESEL
J:
[1] This is an
opposed application for summary judgment arising from a credit
agreement governed by the provisions of the National
Credit Act.
1
Because some of the
provisions of the Act have given rise to difficulties of
interpretation and conflicting judgments in different
courts,
2
the Judge President
has directed that the present matter be heard by a full court.
[2] At the
commencement of the hearing before us the National Credit Regulator
('NCR') applied for and was granted leave to intervene
as
amicus
curiae.
In
this regard, the court is indebted to counsel for the NCR, as well as
counsel for the parties, for the full and helpful arguments
addressed to us, which assisted greatly in clarifying the issues.
Factual
background
[3] The credit
agreement in question was entered into on 27 March 2007 between the
defendant, Mr Deon Winston Papier, as 'consumer',
and the plaintiff,
as 'credit provider'. It relates to the lease of a 2003 Mazda 6 motor
vehicle. In terms of the agreement, the
defendant was obliged to pay
to the plaintiff an 'initial rental' of R13 157,89, followed by 53
consecutive rentals of R2 772,90
each, payable on the first day of
each month, with a final instalment payable on 26 September 2011.
[4] By September
2009 the defendant encountered financial diffi-culties and on 29
September 2009 he applied to a debt counsellor
in Vredenburg for debt
review in terms of s 86(1) of the Act. The debt counsellor, on 2
October 2009, sent notices as contemplated
by s 86(4)(b)(i) of the
Act to all the defendant's creditors, informing them of the
defendant's application for debt review. This
was followed, on 30
October 2009, by a further notice from the debt counsellor, informing
all creditors that the defendant's application
for debt review was
successful; that the defendant was over-indebted as contemplated by s
79(1) of the Act; and that 'the debt
obligations were in the process
of being re- structured'. This notice was accompanied by an
'instalment offer', pro-posing a rearrangement
of the debts in
question. The proposal entailed that an amount of R5 300 per month
would be distributed on a
pro
rata
basis
among the defendant's creditors. This would mean, in the case of
the
debt owing to the plaintiff, that the latter would receive monthly
instalments of Rl 762,44, instead of R2 772,90 per month,
as
originally agreed.
[5] The plaintiff
did not make a counter-proposal to the suggestions of the debt
counsellor, nor did it respond at all to the debt
counsellor's
notices. The defendant thereupon proceeded to make monthly payments
to the debt counsellor, which were distributed
among the various
creditors - including the plaintiff - in accordance with the earlier
proposal.
[6] On 12 March 2010
the debt counsellor launched an application in the magistrate's court
of Vredenburg, citing the defendant and
his wife, together with their
various creditors (including the plaintiff) asrespondents. The
application is headed, somewhat misleadingly,
'Notice of Motion:
Application by consumer to court for debt review in terms of
section
86(10)
and
86
(11) of the
National Credit Act 34 of 2005
'. It is
apparent from the relief sought, however, that what was intended was
a proposal for re-arrangement, as contemplated by
s 86(7)(c)(ii)
of
the Act. In the notice of motion, the respondents were informed that
application would be made to the court on 11 June 2010,
inter
alia,
for
an order that the defendant and his wife are over-indebted as set out
in
s 79
of the Act; ordering that the defendant's 'debt obligations
be restructured' in accordance with a proposal annexed to the
papers; and ordering credit providers who had given notice to
terminate the debt review process to resume the debt review in terms
of
s 86(
11
) of the Act.
[7] Exactly one week
before the scheduled hearing, however, on 4 June 2010, the plaintiffs
attorneys notified the defendant by registered
post that the
plaintiff terminates 'the pending debt review with regard to the
above agreement as contemplated in
s 86(10)
of the Act'.
3
They further pointed
out that the defendant was at that stage in arrears in the amount of
R40 982,78 in respect of the credit agreement
in question and that he
had been in arrears for more than 20 business days. They accordingly
demanded immediate payment of
such arrears. The letter concluded as
follows:
'Should
you fail to (1) pay the arrears mentioned above in full; or
alternatively (2) return the vehicle as contemplated in
s 127
of the
Act; within 10 business days of transmission of this letter, our
client intends to cancel the agreement and to proceed to
take legal
action to enforce its rights in terms of the agreement."
[8] On 29 June 2010
the plaintiff launched the present action, seeking to enforce the
credit agreement. In its particulars of claim
the plaintiff alleged
that the debt review process had been terminated by the delivery of
its notice in terms of
s 86(10)
, more than 60 business days after the
defendant's application for debt review, and that the defendant had
been in default in terms
of the agreement on the date when the said
notice was delivered. The plaintiff further alleged as follows:
'12.5
The agreement is therefore not subject to pending debt review as
contemplated in
s 86
of the NCA as:
12.5.1.
The defendant has not surrendered the vehicle to the plaintiff as
contemplated in
s 127
of the NCA;
12.5.2.
There is no matter arising under the agreement and pending before the
National Credit Tribunal that could result in an order
affecting the
issues to be determined by the court.
13.The
matter is not before a Debt Counsellor. Alternative Dispute
Resolution Agent, Consumer Court or the Ombud with jurisdiction.
13.1
The defendant has not:
13.1.1.
agreed to a proposal made in terms of sl29(l)(a) of the NCA or acted
in good faith in fulfilment of such agreement as no
such agreement
has been reached;
13.1.2.
complied with an agreed plan as contemplated in sl29(l)(a) of the NCA
as no such plan has been agreed; or
13.1.3.
brought the payments under the credit agreement up to date, as
contemplated in sl29(l)(a) of the NCA.
13.2.
More than 10 business days have passed since the delivery of the
above notices in terms of
s86(10)
of the NCA;
13.3.
The defendant has been default
[sic]
under
the agreement for more than 20 business days.'
[9] The plaintiff
accordingly asks for judgment for (a) confirmation of cancellation of
the agreement; and (b) delivery of the goods
to the plaintiff,
together with costs. (The plaintiff also claims payment of damages,
together with interest, but only prayers
(a) and (b) are relevant for
purposes of the present application for summary judgment, with the
balance of the relief to stand
over for later determination.)
[10] The defendant
gave notice of his intention to oppose the claim, which prompted the
present application for summary judgment.
In his opposing affidavit,
the defendant drew attention to the process followed by him and the
debt counsellor, as outlined above.
He also drew attention to the
application that had been issued on 12 March 2010 and set down for
hearing in the magistrate's court
on 11 June 2010. The defendant
accordingly pointed out that his application for debt rearrangement
had been issued and set
down prior to the issue of summons by the
plaintiff herein.
[11] The defendant
also stated:
'Ek
wil verder onder die Hof se aandag bring dat daar tydens die aanhoor
van hierdie aansoek geargumenteer sal word dat in terme
van die
bepalings van art 86(11) van die Nasionale Kredietwet, ek die reg het
om aansoek te doen vir die herlewing van my aansoek
om skuldberading.
Ek is meegedeel dat tesame met die liassering van my formele aansoek
daar ook aansoek gedoen sal word vir die
implimentering van die
bepalings van art 86( 11) van die Nasionale Kredietwet.*
[12] The crisp
question raised by the defendant's opposing affidavit is whether it
is competent for a credit provider to terminate
a debt review process
in terms of
s 86(10)
after an application has been lodged with a
magistrate's court for an order restructuring a consumer's debts as
envisaged in
s 86(7)(c)
of the Act but before an order has been made
in terms of
s 87(1).
As will appear more fully below, this question
has received different answers from different courts.
Discussion
[13] The Act is
aimed at drastically restructuring the legal landscape insofar as
consumer credit is concerned. One of its principal
aims, as contained
in the long title, is 'to promote a fair and non-discriminatory
marketplace for access to consumer credit'.
Another aim is 'to
protect consumers',
inter
alia,
by
'addressing and preventing over-indebtedness of consumers, and
providing mechanisms for resolving over-indebtedness based on
the
principle of satisfaction by the consumer of all responsible
financial obligations'.
4
In order to achieve
the aims of the Act, it has limited a credit provider's right to
enforce a credit agreement where a consumer
defaults under the
agreement. In a nutshell, the Act has drastically changed the
traditional legal debt collection procedures.
5
[14] It is ironic
that a piece of legislation that was passed with such laudable
intentions has become, within a few months after
its promulgation,
a 'fertile ground for litigation', as it was described in one of the
plethora of cases in which its provisions
were considered by the
court.
6
Be that as it may,
save to the extent as set out below, it is unnecessary for purposes
of this judgment to undertake a comprehensive
overview of the Act and
the applicable regulations.
7
[15] Of particular
relevance to the present enquiry is Chapter 4, under the heading
'Consumer Credit Policy'. Part D of that chapter
(ss 78-88)
introduces the novel concepts of 'over-indebtedness and reckless
credit' and makes elaborate provision for re-scheduling
a consumer's
debt payments where either of those situations pertains. The object
of this part of the Act is to provide protection
and assistance to an
over-indebted consumer in an environment that encourages
participation in good faith by both parties.
8
The mechanisms
provided by the Act are contained in ss 85-88 and consist of debt
review, on the one hand, and debt rearrangement,
on the other.
9
[16] Subsection 86(
10) provides 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
the
National Credit Regulator,
at
any time at least 60 business days after the date on which the
consumer applied for the debt review.'
[17] The subsection
contains no limitation on a creditor's right to give notice of
termination, save for the two jurisdictional
requirements
postulated, namely (a) the consumer must be in default under
the credit agreement; and (b) at least 60 business
days must have
elapsed after the date on which the consumer applied for the debt
review. In the present instance, it is common
cause that both these
requirements have been met: the defendant was already in default
when he applied for debt review on 29
September 2009. On 4 June
2010, ie more than 60 business days later, the plaintiff gave the
requisite notice in terms of s 86(10).
Moreover, more than 10 days
have elapsed after the plaintiffs notice before summons was issued,
as required by s 130(1). The
plaintiff, relying on a literal
interpretation of s 86(10), accordingly submitted that it is
entitled to enforce the terms of
the credit agreement in question by
claiming summary judgment.
[18] In support of
its interpretation, the plaintiff relied,
inter
alia,
on
the judgment of Eksteen J in
Fir
strand Bank Ltd
v
Evans,
10
where it was held
that 'the credit provider's rights to give notice in terms of s
86(10) and to legitimately terminate the debt
review process
continues until the magistrate's court has made an order as
envisaged in s 87'.
[19] On the other
hand, there is another line of cases, where the opposite view was
taken and where it was held that it was not
competent for a credit
provider to give notice in terms of s 86(10) of the Act where the
debt counsellor has already referred
the debt review to the
magistrate's court.
11
[20] It would be an
unduly onerous and tedious task to analyse and discuss individually
the reasoning in each of the ever-growing
number of judgments on the
topic. Instead, I propose briefly to set out the reasons why I agree
with the approach followed in
the second line of cases regarding the
interpretation of s 86(10).
[21] The provisions
of s 86(10) appear, on the face of it, to be clear and unambiguous.
However, as pointed out by Ngcobo J in
Bato
Star Fishing (Pty) Ltd
v
Minister
of Environmental Affairs:
12
"The
emerging trend in statutory construction is to have regard to the
context in which the words occur, even where the words
to be
construed are clear and unambiguous. Recently, in
Thoroughbred
Breeders' Association v Price Waterhouse
13
the
SCA has reminded us that:
"The
days are long past when blinkered peering at an isolated provision
in a statute was thought to be the only legitimate
technique in
interpreting it if it seemed on the face of it to have a readily
discernible meaning." '
[22] Having regard
to the context in which they appear, it is clear to me that a
literal interpretation of the provisions of s
86(10), read in
isolation, would amount to a 'blinkered' approach which could
easilylead to the wrong answer. Those provisions
deal with one
aspect of an elaborate process described in the heading to s 86 as
'Application
for debt review'.
The
process commences with an application by the consumer 'in the
prescribed manner and form' to a debt counsellor to have the
consumer declared over-indebted.
14
The debt counsellor
is thereupon required to notify all credit providers listed in the
application as well as every registered
credit bureau.
15
The consumer and
each credit provider must thereafter 'participate in good faith in
the review and in any negotiations designed
to result in responsible
debt re-arrangement'.
16
A debt counsellor
must determine within 30 days whether the consumer appears to be
over-indebted.
17
[23] Should the
debt counsellor determine that the consumer is
not
over-indebted,
then the counsellor must provide the consumer with a 'letter of
rejection' containing the prescribed information.
18
Among other things,
the consumer must be advised of his right 'to approach the court . .
. within 20 business days' for an order,
inter
alia,
that
he or she be declared over-indebted.
19
[24] However, if
the debt counsellor concludes that the consumer is indeed
over-indebted, the procedure described in s 86(7)(c)
must be
followed. This means that the debt counsellor 'may issue a proposal'
recommending that the magistrate's court make an
order,
inter
alia,
that
one or more of the consumer's debts be 're-arranged' in one or more
of anumber of specified ways.
20
(In the
National
Credit Regulator
case,
supra,
these
provisions were interpreted to mean that the debt counsellor
must
refer
the matter to the magistrate's court,
21
which referral
takes the form of an ordinary application regulated by Magistrates'
Courts rule 55.
22
)
[25] Thus, s
86(7)(c) sets in motion a 'debt re-arrangement by the court', as
opposed to a 'voluntary re-arrangement' in terms
of s 86(8)(a).
23
Unlike the position
with regard to s 86(9), the Act as well as the regulations are
silent as to the time period within which the
debt counsellor may
(must) issue the requisite 'proposal' in terms of s 86(7)(c).
However, if one has regard to the context,
then the answer to the
question posed above becomes clear. The process of 'debt review'
requires of the debt counsellor to determine,
within 30 business
days, whether or not a consumer is over-indebted.
24
If not, the debt
counsellor must advise the consumer of his or her right 'to approach
the court' within a further 20 business
days for the necessary
order.
25
This leads me to
the conclusion that the period of 60 business days referred to in s
86( 10) was introduced with the abovementioned
timeframe in mind so
as to allow the consumer and/or debt counsellor sufficient time to
'approach the court' for the necessary
relief in terms of s 87.
26
[26] Once a debt
re-arrangement order has been granted, the consumer is protected
from litigation by his or her creditors - at
least for the time
being.
27
But what about the
situation where a debt re-arrangement order has been applied for but
not yet granted, which is the problem
that confronts us in this
application? Given the fact that a consumer has a period of 50
business days, calculated from the date
of his application to the
debt counsellor, within which to ■approach' the magistrate's
court for an order in terms of s
87, it could never have been
contemplated that the rest of the process - including a hearing
before the magistrate and a rearrangement
order in terms of s
87 - should all be finalised within the remaining ten business days.
Clearly, in the majority of cases, this
deadline would be
unattainable. As Blignault J correctly observed in
Dunga's
case,
supra:
"Experience
has shown that the typical debt review takes longer than 60 business
days, often much longer, before it results
in an order by the
Magistrate's Court in terms of section 87. By terminating the debt
review after 60 business days the credit
provider may be able to
derail the entire debt review process by way of a single unilateral
act. regardless of the reasonableness
of the conduct of the consumer
or his own conduct.'
28
[27] It follows
that, even where the consumer does everything 'by the book', there
will inevitably be a large number of cases
where the period of 60
days will have elapsed without an order as contemplated by s 87
having been obtained.
[28] On the
interpretation advanced on behalf of the plaintiff herein, the
position is quite simple: the credit provider would
be entitled, in
each case where a period of 60 days has elapsed without a
re-arrangement order in terms of s 87 having been made,
unilaterally
'to derail the entire debt review process'.
[29] In his
opposition to this line of argument, the NCR, in his application to
be joined as an
amicus
curiae
herein,
has placed evidence before the court indicating how some credit
providers are circumventing and undermining the statutory
process of
debt review by following the literal interpretation advocated on
behalf of the plaintiff herein. Thus, according to
the NCR, some
credit providers terminate the debt review process in terms of s
86(10) as soon as the period of 60 days has expired,
even where a
debt counsellor has already indicated (as here) that the application
for debt review was successful; or where (as
here) the consumer is
making regular payments in terms of a proposal submitted to credit
providers by the debt counsellor; or
where (as here), a date for a
hearing of the consumer's application for relief in terms of s 87
has already been obtained in
the magistrate's court. Some credit
providers obtain a postponement of the hearing of the application
before the magistrate and
immediately thereafter deliver a notice
terminating the process, followed by the issue of summons in the
High Court and an application
for summary judgment. On the credit
providers' interpretation, they may, and do, put an end to the
debt review process even
where the consumer and the debt counsellor
have taken all necessary steps to invoke and implement the relevant
provisions of
the Act.
[30] I agree with
the NCR that such conduct on the part of credit providers is
inconsistent with the Act. In my view, this is
a strong indicator
that a literal interpretation should not be followed. It would be
counter-productive and contrary to the whole
purpose of the Act to
allow a credit provider unilaterally to terminate the consumer's
protection at the precise moment when
he or she may need it the
most. It would be like providing the consumer with an umbrella and
then snatching it back the moment
it starts raining. This approach
would mean that only those consumers fortunate enough to apply for
debt review at a favourable
time or in a jurisdiction without a long
backlog will succeed in having their debts re-arranged by the
magistrate's court.
[31 ] The
plaintiffs approach also tends to overlook the fact that in the
present instance the application for debt review has
found favour
with the debt counsellor and may likewise have found favour with the
magistrate, had it not been for the untimely
notice of termination
in terms of s 86(10).
[32] The plaintiffs
interpretation further ignores the fact that the magistrate's court
before which the application for re-arrangement
is pending has
become seized with the matter. In this regard, it is significant
that s 86(10) does not require notice of termination
to be given to
the magistrate or to any of the other parties to the pending
application. Thus, one may find the incongruous situation
(on the
plaintiffs interpretation) that the magistrate in question, having
heard an application in terms of s 87, may be in the
process of
preparing a judgment or order, blissfully unaware of the fact
that one of the respondents in the matter before
the court has in
the meantime unilaterally and extrajudicially terminated the
whole process simply by giving notice in terms
of s 86(10). In the
result, an existing judicial process becomes contingent upon the
mere sending of a letter between private
parties. In my view, this
absurd result could not have been intended by the legislature.
[33] The NCR points
to a further absurdity that results from a literal interpretation:
by allowing termination of matters that
have been referred to the
magistrate's court for re-arrangement, this encourages premature
enforcement in the High Court of credit
agreements that were being
reviewed in the magistrate's court. This will inevitably drive up
the costs of litigation at the expense
of those least able to afford
it, as the present case illustrates.
[34] To sum up,
applying a purposive approach to the relevant provisions, and having
due regard to the context in which they appear,
I am satisfied that,
on a proper interpretation of subsec 86(10), the consumer is
protected against enforcement proceedings by
the credit provider,
not only once a re-arrangement order has been made by a magistrate
in terms of s 87, but also while proceedings
for such an order are
pending. The corollary is that delivery of a notice of termination
by a credit provider in terms of s 86(
10) is not competent once any
of the steps referred to in ss 86(7)(c), 86(8) or 86(9) have been
taken. Obviously this impediment
will cease to exist, once a
magistrate's court has dismissed the application for re-arrangement
or the application has been withdrawn
or abandoned.
[35] In the present
case, the plaintiff purported to terminate the process of debt
review a week before the application for an
order interms of s 87
was due to be heard in the Vredenburg magistrate's court. In the
light of the conclusion to which I have
come above, it follows that
such purported termination was invalid. It follows, further, that it
is to that court that the parties
should return in order to pursue
their respective rights and remedies in terms of the credit
agreement in question. At the hearing
before the magistrate, the
plaintiff will have adequate opportunity to state its attitude
with regard to the application.
I am accordingly of the view that
the current action should be stayed so that the debt review process
can take its course in
the magistrate's court.
[36] In view of
these conclusions, it follows that it is not necessary, for purposes
of this case, to consider the provisions
of subsec 86(11),
29
or to pronounce on
the correctness or otherwise of the interpretation attached to those
provisions in
Dunga's
case,
supra.
30
Conclusion
[37]
For these reasons, an order is granted in the following terms:
(a)
The application for summary judgment is stayed, pending a final
determination of the proceedings referred to in para (b) below;
(b)
It is ordered that the debt review that was pending in the
magistrate's court for Vredenburg under Case No
1012/10
is
to resume;
(c)
The clerk of the court is directed to set the above application down
for hearing at the earliest available date, after due
notice to the
parties;
(d)
The costs of the application for summary judgment shall stand over
for later determination.
B
M GRIESEL
Judge
of the High Court
TRAVERSO DJP J: I
agree. It is so ordered.
J H M TRAVERSO
Deputy Judge
President
DLODLO
J:
I
agree.
D V DLODLO
Judge
of the High Court
1
34
of 2005 ("the Act'), date of commencement 1 June 2006.
2
For
a convenient reference to some of the more recent judgments, see
Firstrand
Bank
v
Seyffert
2010
(6) SA 429
(GSJ) paras 8 and 9. (Most of the unreported judgments
referred to herein can be accessed at
http://www.saflii.org/content/south-africa-index.'
)
3
Notice
of termination was simultanously given to the debt counsellor and
the NCR, as required by s 86(10).
4
Sec
3(g).
5
M
Kelly-Louw
Consumer
Credit
5(1)
Lawsa (2 ed, 2010) para 142.
6
SA
Taxi Securitization (Pty) Ltd
v
Nako
& others
[2010]
ZAECBHC 4 (8 June 2010) para 3 n 4 (per Kemp AJ).
7
See
in this regard J M Otto.
The
National Credit Act Eplained
(LexisNexis.
2006); J W Scholtz (Ed)
Guide
to the
National Credit Act
(LexisNexis
.
2008, loose leaf); Lawsa
op
cit.
8
Mercedes
Bern Financial Services South Africa (Ply) Limited
v
Dunga
(9222/2010)
[2010] ZAWCHC 208
(20 September 2010) para 24.
9
For
a useful synopsis of the relevant provisions, see
National
Credit Regulator
v
Nedhank
Ltd & others
2009
(6) SA 295
(GNP) at 300F-302E.
10
[2010]
ZAECPEHC 55 (31 August 2010) para 20. A virtually identical judgment
by the same learned judge was handed down two days
later in
Firsirand
Bank Ltdv Collell
[2010]
ZAECGHC 75 (2 September 2010). See also
SA
Taxi Securilisalion (Ply) Lid v Nako & others,
n
6 above; and the
Seyffert
case,
n 2 above, where similar conclusions were reached.
11
Standard
Bank of South Africa Limited v Kruger; Standard Bank of South Africa
Limited v Pretorius
2010
(4) SA 635
(GSJ) paras 13. 24 (per Kathree-Setiloane AJ). She
subsequently reiterated these views in
SA
Securitisation (Ply) Limited
v
Matlala
[2010]
ZAGPJHC 70 (29 July 2010), where she specifically disagreed with the
approach of Kemp AJ in
SA
Taxi Securitisation v Nako, supra.
Other
cases following the same approach include the judgments of
Binns-Ward J in this Division in
Changing
Tides 17 (Pty) Ltd NO
v
Erasmus
& another, and two similar cases
[2009]
ZAWCHC 175
(12 November 2009); and
Wesbank
v
Martin
[2010]
ZAWCHC 173
(13 August 2010).
12
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 90.
13
2001
(4) SA 551
(SCA) para 12.
14
Sec
86(1).
15
">
15
Sec
86(4Xb).
16
">
16
Sec
86(5)(b).
17
">
17
Sec
86(6)(a)
, read with reg 24(6).
18
Sec
86(7)(a)
, read with reg 25.
19
Sec
86(9).
read with reg 25(5).
20
Sec
86(7)(c)(ii).
21
">
21
At
304B-C and 307A-B.
22
Ibid
at
310C-D:
310H-311A; 320G-H.
23
/6Wat301E-302A.
24
Reg
24(6).
25
Reg
25(5).
26
Cf
Martin's
case,
supra,
para
8. See also A Boraine & S Renke
Some
practical and comparative aspects of the cancellation of instalment
agreements in terms of the National Credit Act 34 of
2005 (Part 2/,
2008
De
Jure
1
at p 4 n 147.
27
Sees
130(4)(e).
28
Para
26.
29
Subsec
86(11) provides:
"If
a credit provider who has 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.'
30
Paras
33-44 of the judgment.