Oos Vrystaat Kapp Bedryf Beperk v Cilliers (1521/2017) [2018] ZAFSHC 168 (23 October 2018)

Oos Vrystaat Kapp Bedryf Beperk v Cilliers (1521/2017) [2018] ZAFSHC 168 (23 October 2018)

The court held that the defendant failed to exhaust remedies under the Consumer Protection Act before approaching the court, as required by section 69, and thus cannot rely on the CPA as a defence. Clause 2.18 of the agreement is not void for conflict with the CPA, as the defendant did not pursue the statutory remedies available. Regarding jurisdiction, the court found that clause 2.13 does not oust the High Court's jurisdiction but was inserted for the defendant's benefit, and the defendant unequivocally submitted to the jurisdiction of the High Court by his conduct throughout the proceedings. The reliance on section 90(2)(k)(vi)(aa) of the National Credit Act was misplaced, as the...

Citation
[2018] ZAFSHC 168
Parties
Plaintiff: Oos Vrystaat Kaap Bedryf Beperk; Defendant: Friedel Cilliers
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 October 2018
Case Number
1521/2017
Procedural Posture
Civil Trial / Trial; Determination of Separated Special Pleas
Outcome
The defendant's special pleas regarding jurisdiction and the enforceability of clause 2.18 are dismissed.
Judges
Naidoo
Legal Topics
Jurisdiction of High Court, Consumer Protection Act, Special Plea, Credit Agreement, Costs Order
Civil Procedure Commercial and Corporate Jurisdiction of High Court Consumer Protection Act Special Plea Credit Agreement Costs Order

Case Brief

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Parties

Oos Vrystaat Kaap Bedryf Beperk

Plaintiff

Friedel Cilliers

Defendant

Procedural Posture

Civil Trial / Trial; Determination of Separated Special Pleas

Legal Issues

  1. 1 Whether the Free State High Court has jurisdiction to hear the matter in light of clause 2.13 of the finance agreement.
  2. 2 Whether clause 2.18 of the finance agreement is unenforceable due to conflict with the Consumer Protection Act 68 of 2008.
  3. 3 Whether the defendant was obliged to exhaust remedies under the Consumer Protection Act before approaching the court.

Ratio Decidendi

The court held that the defendant failed to exhaust remedies under the Consumer Protection Act before approaching the court, as required by section 69, and thus cannot rely on the CPA as a defence. Clause 2.18 of the agreement is not void for conflict with the CPA, as the defendant did not pursue the statutory remedies available. Regarding jurisdiction, the court found that clause 2.13 does not oust the High Court's jurisdiction but was inserted for the defendant's benefit, and the defendant unequivocally submitted to the jurisdiction of the High Court by his conduct throughout the proceedings. The reliance on section 90(2)(k)(vi)(aa) of the National Credit Act was misplaced, as the...

Court Disposition

The defendant's special pleas regarding jurisdiction and the enforceability of clause 2.18 are dismissed.

Orders

  • The two special points raised by the defendant are dismissed.
  • The defendant is ordered to pay the plaintiff's attorney and client costs on the Magistrates' Court scale.