South Africa Case Law

Bayport Securitisation Limited and Another v University of Stellenbosch Law Clinic and Others (507/2020)

Bayport Securitisation Limited and Another v University of Stellenbosch Law Clinic and Others (507/2020) [2021] ZASCA 156; 2022 (2) SA 343 (SCA) (4 November 2021)

Court

Supreme Court of Appeal

Case number

507/2020

Judges

Ponnan, Makgoka, Gorven, Phatshoane, Molefe

The Supreme Court of Appeal held that the definition of 'collection costs' in the National Credit Act does not include legal costs incurred during litigation. The court reaffirmed the common law distinction between collection costs and litigation costs, noting that legal costs commence with the issuing of summons and are subject to judicial discretion and taxation. The statutory language of the Act does not evidence an intention to include litigation costs within collection costs. Furthermore, section 103(5) of the Act does not apply post-judgment, as a judgment alters the character of the de…

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• National Credit Act
• Collection Costs
• Litigation Costs
• Declaratory Relief
• Emoluments Attachment Orders

Lonmin Ltd and Others v CG Steyn Inc t/a Steyn Attorneys and Others (M619/16)

Lonmin Ltd and Others v CG Steyn Inc t/a Steyn Attorneys and Others (M619/16) [2018] ZANWHC 10 (26 April 2018)

Court

North West High Court, Mafikeng

Case number

M619/16

Judge

Kgoele

The High Court dismissed an application challenging emoluments attachment orders because key interested parties, including consumers and issuers, were not joined.

• Emoluments Attachment Orders
• Non Joinder
• Collection Costs
• National Credit Act
• Judicial Oversight
• Class Action Requirements

National Credit Regulator v Self Discovery Cash and Marketing CC (NCT/71714/2016/140(1))

National Credit Regulator v Self Discovery Cash and Marketing CC (NCT/71714/2016/140(1)) [2018] ZANCT 28 (9 January 2018)

Court

National Consumer Tribunal

Case number

NCT/71714/2016/140(1)

Judges

T Woker, A Potwana, X May

The Tribunal found repeated National Credit Act breaches, cancelled the respondent’s credit-provider registration, and imposed a R100,000 fine.

• National Credit Act
• Affordability Assessment
• Unlawful Contractual Terms
• Interest Rate Regulation
• Emoluments Attachment Orders
• Administrative Penalty

Khiba v Nel and Another, Tyabazayo v Nel and Another, Tyabazayo v Nel and Another (2765/2016, 2497/2016, 3316/2016)

Khiba v Nel and Another, Tyabazayo v Nel and Another, Tyabazayo v Nel and Another (2765/2016, 2497/2016, 3316/2016) [2017] ZAECGHC 47 (11 April 2017)

Court

Eastern Cape High Court, Grahamstown

Case number

2765/2016, 2497/2016, 3316/2016

Judge

M.J Lowe

The High Court dismissed three review applications against Magistrates’ Court default judgments, finding unreasonable delay, no substantial prejudice, and no basis to interfere.

• Review Of Magistrates Court Proceedings
• Default Judgment
• National Credit Act Compliance
• Delay In Review
• Gross Irregularity
• Emoluments Attachment Orders

University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others; Mavava Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others (CCT127/15)

University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and Others; Mavava Trading 279 (Pty) Ltd and Others v University of Stellenbosch Legal Aid Clinic and Others (CCT127/15) [2016] ZACC 32; 2016 (6) SA 596 (CC); (2016) 37 ILJ 2730 (CC); 2016 (12) BCLR 1535 (CC) (13 September 2016)

Court

Constitutional Court

Case number

CCT127/15

Judges

Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J, Zondo J

The Constitutional Court held that section 65J(2) of the Magistrates’ Courts Act, in its original form, permitted emoluments attachment orders to be issued without mandatory judicial oversight, which is inconsistent with section 34 of the Constitution. The absence of judicial supervision allowed for abuses and hardship among vulnerable debtors, as orders could be issued by clerks of the court based on written consent or procedural compliance, without a magistrate’s consideration of the debtor’s circumstances. The Court found that judicial oversight is constitutionally indispensable for all fo…

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• Judicial Oversight
• Emoluments Attachment Orders
• Magistrates Courts Act
• National Credit Act
• Access To Court
• Debt Enforcement

Anglo American Platinum Ltd and Others v Pienaar and Others (89567/2014)

Anglo American Platinum Ltd and Others v Pienaar and Others (89567/2014) [2016] ZAGPPHC 656 (29 July 2016)

Court

North Gauteng High Court, Pretoria

Case number

89567/2014

Judge

NP Mali

The court found that the first respondent, as administrator of the fourth and fifth applicants, has a direct and substantial interest in the main application and should be joined as a respondent. The court rejected the first respondent's jurisdictional objection, holding that the High Court has jurisdiction to hear the matter, particularly where declaratory relief and interpretation of legislation are sought and where the remedies under the Magistrates' Court Act are inadequate for unsophisticated debtors. The court determined that the issues raised by the applicants pertain to the same quest…

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• Joinder Of Parties
• Administration Orders
• Emoluments Attachment Orders
• Statutory Fee Caps
• Magistrates Court Act
• Debt Collection Regulation

University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others (16703/14)

University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others (16703/14) [2015] ZAWCHC 99; 2015 (5) SA 221 (WCC); [2015] 3 All SA 644 (WCC); (2015) 36 ILJ 2558 (WCC) (8 July 2015)

Court

Western Cape High Court, Cape Town

Case number

16703/14

Judge

Desai

The court found that section 65J of the Magistrates' Court Act, which allows clerks to issue emoluments attachment orders (EAOs) without judicial oversight, is unconstitutional and invalid to the extent that it fails to provide for judicial oversight. The process resulted in excessive deductions from low-income earners' salaries, undermining their rights to dignity and access to courts. The court held that section 45 of the Magistrates' Court Act does not permit debtors to consent to the jurisdiction of courts outside their district in proceedings to enforce credit agreements governed by the…

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• Emoluments Attachment Orders
• Judicial Oversight
• Forum Shopping
• Reckless Lending
• Access To Courts
• Consumer Protection