Nel and Others v Cilliers (A208/2021) [2022] ZAGPPHC 856 (7 November 2022)

Nel and Others v Cilliers (A208/2021) [2022] ZAGPPHC 856 (7 November 2022)

The court found that agreement 'D2' constituted a credit agreement under section 8 of the National Credit Act 34 of 2005. Both parties were not registered as credit providers, rendering 'D2' unlawful and unenforceable in terms of section 89. The appellants' argument that 'D2' was a settlement was rejected due to their prior concession and lack of pleading. The court held that 'D1' was abandoned by the parties when 'D2' was entered into, and thus could not be revived. Furthermore, 'D1' was found to be inchoate, as the First Appellant testified that certain terms were still to be clarified. Even if 'D1' were complete, it would also be unlawful under the National Credit Act due to the...

Citation
[2022] ZAGPPHC 856
Parties
Appellant: JJG Nel; Appellant: Ivy Jewel 3 (Pty) Ltd; Appellant: Ivy Jewel 4 (Pty) Ltd; Appellant: Labonte 1 (Pty) Ltd; Appellant: Labonte 2 (Pty) Ltd; Appellant: Silkblaze 3 (Pty) Ltd; Appellant: Silkblaze 4 (Pty) Ltd; Appellant: Rusty Rose 52 (Pty) Ltd; Respondent: PJJ Cilliers
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 November 2022
Case Number
A208/2021
Procedural Posture
Civil Appeal / Appeal From Judgment of the Court a Quo
Outcome
Appeal dismissed with costs, including costs of two counsel where employed.
Judges
G Ally, T Bokako, N Janse van Nieuwenhuisen
Legal Topics
Credit Agreements, National Credit Act, Novation, Inchoate Contracts, Unenforceable Contracts
Commercial and Corporate Civil Procedure Credit Agreements National Credit Act Novation Inchoate Contracts Unenforceable Contracts

Case Brief

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Parties

JJG Nel

Appellant

Ivy Jewel 3 (Pty) Ltd

Appellant

Ivy Jewel 4 (Pty) Ltd

Appellant

Labonte 1 (Pty) Ltd

Appellant

Labonte 2 (Pty) Ltd

Appellant

Silkblaze 3 (Pty) Ltd

Appellant

Silkblaze 4 (Pty) Ltd

Appellant

Rusty Rose 52 (Pty) Ltd

Appellant

PJJ Cilliers

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of the Court a Quo

Legal Issues

  1. 1 Whether agreement 'D2' is a credit agreement under the National Credit Act 34 of 2005.
  2. 2 Whether agreement 'D1' can be revived if 'D2' is declared unlawful and invalid.
  3. 3 Whether 'D1' was inchoate and whether reliance on its inchoateness by the respondent was appropriate in law.

Ratio Decidendi

The court found that agreement 'D2' constituted a credit agreement under section 8 of the National Credit Act 34 of 2005. Both parties were not registered as credit providers, rendering 'D2' unlawful and unenforceable in terms of section 89. The appellants' argument that 'D2' was a settlement was rejected due to their prior concession and lack of pleading. The court held that 'D1' was abandoned by the parties when 'D2' was entered into, and thus could not be revived. Furthermore, 'D1' was found to be inchoate, as the First Appellant testified that certain terms were still to be clarified. Even if 'D1' were complete, it would also be unlawful under the National Credit Act due to the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel where employed.

Orders

  • The appeal is dismissed.
  • The appellants are to pay the costs of the appeal, including the costs of two counsel where employed, the one paying the other to be absolved.