National Credit Regulator v Getbucks (Pty) Ltd and Another (140/2020) [2021] ZASCA 28; [2021] 2 All SA 747 (SCA) (26 March 2021)

National Credit Regulator v Getbucks (Pty) Ltd and Another (140/2020) [2021] ZASCA 28; [2021] 2 All SA 747 (SCA) (26 March 2021)

Regulation 44 was not validly promulgated because the Minister failed to comply with the procedural requirements of consultation with the National Credit Regulator and did not allow the minimum 30 business days for public comment as required by section 11 of Schedule 3 to the National Credit Act. The National Credit Regulator could not rely on Regulation 44 to deregister Getbucks, as the regulation was ultra vires and invalid. The challenge raised by Getbucks was a collateral, defensive challenge to the validity of the regulation, which is permissible and not subject to the time limits applicable to review proceedings under PAJA. The Supreme Court of Appeal dismissed the appeal and upheld...

Citation
[2021] ZASCA 28
Parties
Appellant: National Credit Regulator; Respondent: Getbucks (Pty) Ltd; Respondent: Minister of Trade and Industry
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 2021
Case Number
140/2020
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs.
Judges
Petse, Zondi, Mbatha, Gorven, Weiner
Legal Topics
Ultra Vires Promulgation, National Credit Act, Collateral Defensive Challenge, Regulatory Consultation, Public Comment Period, Legality Principle
Administrative Law Banking and Finance Civil Procedure Ultra Vires Promulgation National Credit Act Collateral Defensive Challenge Regulatory Consultation Public Comment Period +1 more

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Parties

National Credit Regulator

Appellant

Getbucks (Pty) Ltd

Respondent

Minister of Trade and Industry

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Was Regulation 44 under the National Credit Act validly promulgated?
  2. 2 Did the Minister comply with the procedural requirements for public comment and consultation?
  3. 3 Can the National Credit Regulator rely on Regulation 44 to deregister Getbucks?

Ratio Decidendi

Regulation 44 was not validly promulgated because the Minister failed to comply with the procedural requirements of consultation with the National Credit Regulator and did not allow the minimum 30 business days for public comment as required by section 11 of Schedule 3 to the National Credit Act. The National Credit Regulator could not rely on Regulation 44 to deregister Getbucks, as the regulation was ultra vires and invalid. The challenge raised by Getbucks was a collateral, defensive challenge to the validity of the regulation, which is permissible and not subject to the time limits applicable to review proceedings under PAJA. The Supreme Court of Appeal dismissed the appeal and upheld...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • The National Credit Regulator is barred from prosecuting Getbucks or seeking any relief against it before the National Consumer Tribunal in respect of any alleged contravention of Regulation 44 of the National Regulations GMR 489 published in the Government Gazette of 31 May 2006, prior to its subsequent review and...