Absa Bank Ltd v Serfontein and Another - Leave to appeal (4659/2021) [2023] ZAFSHC 264 (30 June 2023)

Absa Bank Ltd v Serfontein and Another - Leave to appeal (4659/2021) [2023] ZAFSHC 264 (30 June 2023)

The court found that the Acknowledgment of Debt and Power of Attorney constituted a supplementary agreement under the National Credit Act and contained unlawful provisions prohibited by sections 89, 90, and 91 of the Act. Even if the document were considered a credit agreement, the presence of unlawful provisions rendered it void under the Act. The court applied the raised threshold for granting leave to appeal, as set out in section 17(1)(a) of the Superior Courts Act, and determined that there was no reasonable prospect that another court would come to a different conclusion. The applicant's reliance on common law and precedent did not override the statutory prohibitions, and the...

Citation
[2023] ZAFSHC 264
Parties
Applicant: Absa Bank Ltd; Respondent: Johan Serfontein; Respondent: Jacobus Hendrik Serfontein; Respondent: Francois Els N.O.; Respondent: Adriaan Benjamin Vosloo N.O.; Respondent: Registrar of Deeds
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 June 2023
Case Number
4659/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Order in Main Application
Outcome
Leave to appeal is refused.
Judges
Van Zyl
Legal Topics
National Credit Act, Supplementary Agreement, Credit Agreement, Parate Executie, Settlement Agreement, Unlawful Provisions
Banking and Finance Civil Procedure National Credit Act Supplementary Agreement Credit Agreement Parate Executie Settlement Agreement Unlawful Provisions

Case Brief

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Parties

Absa Bank Ltd

Applicant

Johan Serfontein

Respondent

Jacobus Hendrik Serfontein

Respondent

Francois Els N.O.

Respondent

Adriaan Benjamin Vosloo N.O.

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment and Order in Main Application

Legal Issues

  1. 1 Whether the Acknowledgment of Debt dated 17 March 2019 is a supplementary agreement under the National Credit Act.
  2. 2 Whether the Acknowledgment of Debt constitutes a credit agreement in terms of section 8(4)(f) of the National Credit Act.
  3. 3 Whether the Acknowledgment of Debt is valid and enforceable under common law, precedent, or the National Credit Act.

Ratio Decidendi

The court found that the Acknowledgment of Debt and Power of Attorney constituted a supplementary agreement under the National Credit Act and contained unlawful provisions prohibited by sections 89, 90, and 91 of the Act. Even if the document were considered a credit agreement, the presence of unlawful provisions rendered it void under the Act. The court applied the raised threshold for granting leave to appeal, as set out in section 17(1)(a) of the Superior Courts Act, and determined that there was no reasonable prospect that another court would come to a different conclusion. The applicant's reliance on common law and precedent did not override the statutory prohibitions, and the...

Court Disposition

Leave to appeal is refused.

Orders

  • Leave to appeal is refused.
  • The applicant is ordered to pay the costs of the application.