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Banks should be careful about rushing into bond foreclosure proceedings, when the arrears owed are not significant. Instead, the bank should try to engage with the consumer and see if a settlement can be negotiated to prevent foreclosure and the consumer losing their home. In FirstRand Bank Limited v Makaleng, Mr Makaleng was in arrears for R12 945.53. The bank sent him a notice on 23 July 2015 in terms of the National Credit Act…
In November 2016, the Supreme Court of Appeal reiterated that if a respondent in a liquidation application disputes the indebtedness on bona fide and reasonable grounds, the liquidation application should be refused. Liquidation proceedings are not designed for the enforcement of disputed debts. In the case of Freshvest Investments (Pty) Ltd v Marabeng (Pty) Ltd, the court concluded that the lower court had erred in referring the liquidation application to oral evidence after finding…
On 15 September 2016, the Constitutional Court in Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd, held that a full and final settlement clause in an agreement to settle a dispute was lawful, even though the agreement contained a waiver to approach the CCMA or any other court for relief. The court highlighted the importance of giving effect to agreements concluded by parties. Parties who have equal bargaining power are to be held to…
If a loan is repayable in instalments and includes an acceleration clause that if the debtor defaults on paying any instalment, the creditor is entitled on notice to terminate the loan agreement and claim the full balance outstanding, the debt ordinarily only prescribes three years after the date of the notice claiming the full outstanding balance. In Standard Bank v Miracle Mile Investments, Standard Bank granted a loan for an amount of R13 984 600. The…
Creditors of a company have a substantial interest in an application to set aside business rescue proceedings or the adoption of a business rescue plan. A court will dismiss such an application if the creditors are not joined as parties to the application. Giving notice of the application to the creditors does not cure the failure to cite the creditors as parties to the application. This is clear from the recent SCA judgment in Golden
A bank needs to ensure that a company has authorised its director to allow the company’s bank account to be debited each month, if the payments settle the director’s personal obligations. This much is clear from the recent SCA judgment in First National Bank and Another v Scenematic One (Pty) Ltd. Mr Naude, a former director of Scenematic, entered into an instalment sale agreement with Wesbank. Mr Naude’s purchase of a vehicle was going…
The new regulations prescribing the maximum rates of interest, initiation fees and service fees that credit providers can charge come into effect on 6 May 2016. An urgent application by Micro Finance South Africa (MFSA) to stay the implementation of the new regulations pending the outcome of an application to set aside the Minister of Trade and Industry’s decision to enact the new regulations has failed. In a judgment delivered on 5 May 2016,…
If tender documents impose an obligation on a bidding party to disclose that it has the necessary financial resources to execute a project, the failure by the bidder to disclose that it was placed under business rescue after the bid was submitted but before the contract was awarded, resulted in the successful award of the tender to that bidder being set aside. In Umoso Construction v MEC for Road and Public Works Eastern Cape Province
The purpose of s129 of the National Credit Act (NCA) is to ensure that a consumer is notified of the default and of the various options available to the consumer. In Sebola v Standard Bank the Constitutional Court held that a credit provider can normally show compliance with s129 by: proving that the notice was sent by registered mail; proving that the notice reached the correct post office; and producing a post-despatch track and trace…
All laws and court orders must be written in a clear and accessible way. Vague laws or court orders violate the rule of law, which is a founding principle of our Constitution. In Minister of Water and Environmental Affairs v Kloof Conservancy, the Supreme Court of Appeal set aside part of a court order because it was so open ended and vague. The order required the Minister “to do all such things and take all…