Dlayedwa and Others v Lewis Stores (Pty) Ltd and Another; Eland and Others v Lewis Stores (Pty) Ltd and Another (2823/2016; 5045/16) [2017] ZAWCHC 103 (4 August 2017)

Dlayedwa and Others v Lewis Stores (Pty) Ltd and Another; Eland and Others v Lewis Stores (Pty) Ltd and Another (2823/2016; 5045/16) [2017] ZAWCHC 103 (4 August 2017)

The court held that the National Credit Act establishes both the wrong and the entitlement to claim for loss or damage arising from prohibited conduct, but requires that such claims be preceded by a determination and certificate from the National Consumer Tribunal. The plaintiffs failed to allege or provide such a determination or certificate, and their proposed amendments did not cure this fundamental defect. The attempt to seek declaratory relief regarding prohibited conduct or criminal offences in civil proceedings was found to be incompetent and contrary to the statutory scheme. The application to amend the particulars of claim was dismissed as the claims lacked the necessary...

Citation
[2017] ZAWCHC 103
Parties
Plaintiff: Ndumiso Dlayedwa; Plaintiff: Lebosta Gift Makola; Plaintiff: Johannes Petrus Abrahams; Plaintiff: Laurika Monique Harmse; Plaintiff: Winnifred Mpela; Plaintiff: Charline Natasha Jantjies; Plaintiff: Alpha Kock; Plaintiff: Faith Ofentse Bullock; Plaintiff: Maetin Anthone Mkhabela; Plaintiff: Mmapotane Doricca Pholosi; Plaintiff: Nosihle Ngweyi; Plaintiff: Reitumetse Pretty Galeng; Plaintiff: Sebenzile Nottah Mashabane; Plaintiff: Siswe Sithoti; Plaintiff: Rachel Nomthandazo; Plaintiff: Eraldo Edgar Franklin Eland; Plaintiff: Lavania Grace Potgieter; Plaintiff: Tshepiso Levy Chabaku; Plaintiff: Puseletso Mokoena; Plaintiff: Riaan Lakay; Plaintiff: Rodze Vergotine; Plaintiff: Sunnyboy Lennox Nong; Plaintiff: Asanda Pakathi; Plaintiff: Mziwethu Nomabhungu; Plaintiff: Jan van Nel; Plaintiff: Tumelo Collings Nzingelwa; Plaintiff: Maleko Petrus Sesinyi; Plaintiff: Robert Peter Janse van Rensburg; Defendant: Lewis Stores (Pty) Ltd; Defendant: National Credit Regulator
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 August 2017
Case Number
2823/2016; 5045/16
Procedural Posture
Civil Application / Application to Amend Particulars of Claim; Exception Raised; Judgment on Amendment
Outcome
Application to amend particulars of claim dismissed with costs.
Judges
D V Dlodlo
Legal Topics
National Credit Act, Exception Procedure, Amendment of Pleadings, Prohibited Conduct, Jurisdiction of High Court
Commercial and Corporate Civil Procedure National Credit Act Exception Procedure Amendment of Pleadings Prohibited Conduct Jurisdiction of High Court

Case Brief

Summary, issues, holding and outcome

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Parties

Ndumiso Dlayedwa

Plaintiff

Lebosta Gift Makola

Plaintiff

Johannes Petrus Abrahams

Plaintiff

Laurika Monique Harmse

Plaintiff

Winnifred Mpela

Plaintiff

Charline Natasha Jantjies

Plaintiff

Alpha Kock

Plaintiff

Faith Ofentse Bullock

Plaintiff

Maetin Anthone Mkhabela

Plaintiff

Mmapotane Doricca Pholosi

Plaintiff

Nosihle Ngweyi

Plaintiff

Reitumetse Pretty Galeng

Plaintiff

Sebenzile Nottah Mashabane

Plaintiff

Siswe Sithoti

Plaintiff

Rachel Nomthandazo

Plaintiff

Eraldo Edgar Franklin Eland

Plaintiff

Lavania Grace Potgieter

Plaintiff

Tshepiso Levy Chabaku

Plaintiff

Puseletso Mokoena

Plaintiff

Riaan Lakay

Plaintiff

Rodze Vergotine

Plaintiff

Sunnyboy Lennox Nong

Plaintiff

Asanda Pakathi

Plaintiff

Mziwethu Nomabhungu

Plaintiff

Jan van Nel

Plaintiff

Tumelo Collings Nzingelwa

Plaintiff

Maleko Petrus Sesinyi

Plaintiff

Robert Peter Janse van Rensburg

Plaintiff

Lewis Stores (Pty) Ltd

Defendant

National Credit Regulator

Defendant

Procedural Posture

Civil Application / Application to Amend Particulars of Claim; Exception Raised; Judgment on Amendment

Legal Issues

  1. 1 Whether the absence of a certificate from the National Consumer Tribunal under Section 164(3) of the National Credit Act is an absolute bar to the plaintiffs proceeding with a claim in the High Court for prohibited conduct.
  2. 2 Whether the proposed amendments to the particulars of claim cure the excipiability of the plaintiffs' claims.
  3. 3 Whether declaratory relief regarding prohibited conduct or criminal offences under the National Credit Act is competent in civil proceedings.

Ratio Decidendi

The court held that the National Credit Act establishes both the wrong and the entitlement to claim for loss or damage arising from prohibited conduct, but requires that such claims be preceded by a determination and certificate from the National Consumer Tribunal. The plaintiffs failed to allege or provide such a determination or certificate, and their proposed amendments did not cure this fundamental defect. The attempt to seek declaratory relief regarding prohibited conduct or criminal offences in civil proceedings was found to be incompetent and contrary to the statutory scheme. The application to amend the particulars of claim was dismissed as the claims lacked the necessary...

Court Disposition

Application to amend particulars of claim dismissed with costs.

Orders

  • The application to amend lodged in terms of Rule 28(4) of the Uniform Rules of Court is dismissed with costs.