Forsyth v Heydenrych (31749/2011) [2019] ZAGPJHC 100 (25 March 2019)

Forsyth v Heydenrych (31749/2011) [2019] ZAGPJHC 100 (25 March 2019)

The court found that the transaction under consideration was not an arms-length transaction and, therefore, the National Credit Act did not apply. The judgment in Du Bruyn NO & others v Karsten was distinguished on the basis that it concerned an arms-length transaction, whereas the present matter did not. Since the NCA was not applicable, the requirement to register as a credit provider did not arise. However, due to the ongoing confusion surrounding the interpretation of the NCA, the court held that the test for leave to appeal under section 17 of the Superior Court Act was satisfied, and leave to appeal should be granted.

Citation
[2019] ZAGPJHC 100
Parties
Respondent: Dr Howard Bruce Mortimer Forsyth; Applicant: Gerhard Christopher Heydenrych
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 March 2019
Case Number
31749/2011
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment Delivered on 18 October 2018.
Outcome
Leave to appeal granted to the full court of the Gauteng Local Division.
Judges
I Opperman
Legal Topics
Leave to Appeal, Credit Provider Registration, National Credit Act, Arms Length Transaction
Civil Procedure Banking and Finance Leave to Appeal Credit Provider Registration National Credit Act Arms Length Transaction

Case Brief

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Parties

Dr Howard Bruce Mortimer Forsyth

Respondent

Gerhard Christopher Heydenrych

Applicant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment Delivered on 18 October 2018.

Legal Issues

  1. 1 Whether the applicant is entitled to leave to appeal against the judgment of 18 October 2018.
  2. 2 Whether the National Credit Act applies to the transaction in question.
  3. 3 Whether the transaction was an arms-length transaction requiring registration as a credit provider.

Ratio Decidendi

The court found that the transaction under consideration was not an arms-length transaction and, therefore, the National Credit Act did not apply. The judgment in Du Bruyn NO & others v Karsten was distinguished on the basis that it concerned an arms-length transaction, whereas the present matter did not. Since the NCA was not applicable, the requirement to register as a credit provider did not arise. However, due to the ongoing confusion surrounding the interpretation of the NCA, the court held that the test for leave to appeal under section 17 of the Superior Court Act was satisfied, and leave to appeal should be granted.

Court Disposition

Leave to appeal granted to the full court of the Gauteng Local Division.

Orders

  • Leave to appeal the judgment dated 18 October 2018 is granted to the full court of the Gauteng Local Division.
  • The costs of the application for leave to appeal are to be costs in the appeal.