National Credit Regulator v Opperman and Others (CCT 34/12) [2012] ZACC 29; 2013 (2) BCLR 170 (CC); 2013 (2) SA 1 (CC) (10 December 2012)

National Credit Regulator v Opperman and Others (CCT 34/12) [2012] ZACC 29; 2013 (2) BCLR 170 (CC); 2013 (2) SA 1 (CC) (10 December 2012)

Section 89(5)(c) of the National Credit Act, as interpreted by the High Court and confirmed by the Constitutional Court, denies an unregistered credit provider the right to restitution of money lent under an unlawful credit agreement, without affording the court any discretion to consider whether restitution would be just and equitable. This results in the arbitrary deprivation of property, contrary to section 25(1) of the Constitution. The provision cannot be saved by constitutional interpretation or by section 36(1) as a reasonable and justifiable limitation, because less restrictive means exist to achieve the Act's objectives. The Court declined to read-in a discretion and found that...

Citation
[2012] ZACC 29
Parties
Applicant: National Credit Regulator; Respondent: Fillippus Albertus Opperman; Respondent: Jacobus Boonzaaier; Respondent: Minister of Finance; Respondent: Minister of Trade and Industry
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
10 December 2012
Case Number
CCT 34/12
Procedural Posture
Constitutional Confirmation / Appeal From High Court; Confirmation of Constitutional Invalidity
Outcome
Appeal dismissed; order of constitutional invalidity confirmed.
Judges
Van der Westhuizen, Mogoeng, Moseneke, Khampepe, Nkabinde, Skweyiya, Cameron, Froneman, Jafta
Legal Topics
Arbitrary Deprivation of Property, National Credit Act, Unjustified Enrichment, Statutory Interpretation, Constitutional Limitation, Judicial Discretion
Constitutional Law Banking and Finance Civil Procedure Arbitrary Deprivation of Property National Credit Act Unjustified Enrichment Statutory Interpretation Constitutional Limitation +1 more

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Parties

National Credit Regulator

Applicant

Fillippus Albertus Opperman

Respondent

Jacobus Boonzaaier

Respondent

Minister of Finance

Respondent

Minister of Trade and Industry

Respondent

Procedural Posture

Constitutional Confirmation / Appeal From High Court; Confirmation of Constitutional Invalidity

Legal Issues

  1. 1 Whether section 89(5)(c) of the National Credit Act is consistent with section 25(1) of the Constitution.
  2. 2 Whether section 89(5)(c) results in arbitrary deprivation of property.
  3. 3 Whether the provision can be interpreted in a constitutionally compliant manner.

Ratio Decidendi

Section 89(5)(c) of the National Credit Act, as interpreted by the High Court and confirmed by the Constitutional Court, denies an unregistered credit provider the right to restitution of money lent under an unlawful credit agreement, without affording the court any discretion to consider whether restitution would be just and equitable. This results in the arbitrary deprivation of property, contrary to section 25(1) of the Constitution. The provision cannot be saved by constitutional interpretation or by section 36(1) as a reasonable and justifiable limitation, because less restrictive means exist to achieve the Act's objectives. The Court declined to read-in a discretion and found that...

Court Disposition

Appeal dismissed; order of constitutional invalidity confirmed.

Orders

  • The appeal is dismissed.
  • The order of the High Court is confirmed.