Els v Swart N.O. and Another (MG10/2015) [2016] ZANWHC 43 (16 September 2016)

Els v Swart N.O. and Another (MG10/2015) [2016] ZANWHC 43 (16 September 2016)

The court found that the agreement between the appellant and the respondents did not constitute a credit agreement as contemplated by the National Credit Act. The parties were not dealing at arm's length, as they were co-members of a close corporation and the trust, and thus the arrangement was expressly excluded from the application of the NCA under section 4(2)(b)(iv)(aa). The inclusion of interest in the claim was a mistake and did not alter the substance of the agreement. The appellant was not a credit provider required to register under section 40 of the NCA, and the amount claimed did not exceed the statutory threshold. Therefore, compliance with section 129(1) was not necessary....

Citation
[2016] ZANWHC 43
Parties
Appellant: Petrus Johannes Stephanus Els; Respondent: David Gerhardus Cornelius Swart N.O.; Respondent: Joyce Swart N.O.
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
16 September 2016
Case Number
MG10/2015
Procedural Posture
Civil Appeal / Appeal Against Upholding of Special Plea in the Court a Quo
Outcome
Appeal upheld; decision of the court a quo set aside; costs order set aside; each party to pay its own costs.
Judges
Kgoele, Gura
Legal Topics
National Credit Act, Credit Agreement Definition, Special Plea, Arm S Length Transaction, Costs Order
Civil Procedure Commercial and Corporate National Credit Act Credit Agreement Definition Special Plea Arm S Length Transaction Costs Order

Case Brief

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Parties

Petrus Johannes Stephanus Els

Appellant

David Gerhardus Cornelius Swart N.O.

Respondent

Joyce Swart N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal Against Upholding of Special Plea in the Court a Quo

Legal Issues

  1. 1 Whether the agreement between the parties constitutes a credit agreement regulated by the National Credit Act.
  2. 2 Whether the appellant was required to comply with section 129(1) of the National Credit Act before instituting action.
  3. 3 Whether the appellant was a credit provider required to register under section 40 of the National Credit Act.

Ratio Decidendi

The court found that the agreement between the appellant and the respondents did not constitute a credit agreement as contemplated by the National Credit Act. The parties were not dealing at arm's length, as they were co-members of a close corporation and the trust, and thus the arrangement was expressly excluded from the application of the NCA under section 4(2)(b)(iv)(aa). The inclusion of interest in the claim was a mistake and did not alter the substance of the agreement. The appellant was not a credit provider required to register under section 40 of the NCA, and the amount claimed did not exceed the statutory threshold. Therefore, compliance with section 129(1) was not necessary....

Court Disposition

Appeal upheld; decision of the court a quo set aside; costs order set aside; each party to pay its own costs.

Orders

  • The appeal is upheld.
  • The decision of the court a quo upholding the special plea is set aside.