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The appeal court has found that the requirement to register as a credit provider is applicable to all credit agreements once the prescribed threshold is reached (currently zero), irrespective of whether the credit provider is involved in the credit industry and irrespective of whether the credit agreement is a once-off transaction. The appeal court reluctantly adopted this approach which is clear from the remarks made in the judgment – that this is an imperfect…
If a company goes into liquidation claims must be lodged and proved within three months as from the conclusion of the second meeting of creditors of the insolvent company. The case of Wishart v Billiton is a reminder that although the Companies Act 1973 was largely repealed, the provisions relating to winding-up of companies remain in force until a comprehensive insolvency law is enacted. Section 44(1) of the Insolvency Act is applicable to claims against companies…
In our blogs from July 2015 and August 2015 we dealt with the High Court’s judgment declaring certain aspects of the long-established but often abused debt collecting process of emolument attachment orders unlawful. On 13 September 2016, the Constitutional Court confirmed that changes must be effected to section 65J (2)(a) and (b) of the Magistrates Courts’ Act (MCA), so the court and not the clerk of the court can issue the order, ensure that it…
On 11 May 2016, the Department of Trade and Industry announced in Government Gazette 39981 that the new credit provider registration threshold will be Nil (R0). Is the threshold rational and reasonable? If the threshold is not rational, credit providers whose credit agreements are to be declared void may be able to challenge the threshold. The essence of the newly set threshold is that any person who grants credit within the ambit of the National…
A settlement agreement concluded outside South Africa between a foreign company and a person resident in the United Kingdom that was concluded completely outside the South African credit market and has no bearing on accessibility to credit by South Africans or the nature of credit products available within South Africa does not “have an effect within” South Africa and is consequently not regulated by the National Credit Act (NCA). In Sunrock Limited v Louis and
A plaintiff who was a shareholder in a liquidated company sued the company’s bank for a R50 million loss in value of his indirectly held shareholding allegedly caused by intentional conduct of the bank for lending money beyond the means of the company and then liquidating the company. The delictual claim for pure economic loss failed because no wrongfulness was proved. The plaintiff was a shareholder thrice removed from the company. The notion that a company…
Default judgment, without any evidence being led, was granted against a director under section 424(1) of the Companies Act 1973 on the basis that the business of the company was carried on recklessly or with intent to defraud creditors or for some other fraudulent purpose. No evidence was led to establish these allegations. Even though the defendant director in Minnaar v van Rooyen failed to take the steps he should have taken to defend the action,…
In early July 2015 the High Court declared aspects of a long-established but often abused debt collecting process unlawful, with potential wide-ranging consequences. It could render hundreds of thousands of salary attachment orders unenforceable. In our recent blog post we highlighted the findings of what is known as the Desai Judgment (after the judge who wrote it). On 20 July 2015 the Department of Justice and Constitutional Development announced that it is working on an…
The High Court has declared aspects of a long-established but often abused debt collection process unlawful, with potentially wide ranging consequences, as it could render hundreds of thousands of salary attachment orders unenforceable. Aspects of a salary attachment process, known as an emoluments attachment order (EAO), was declared unconstitutional in The University of Stellenbosch Legal Aid Clinic v The Minister of Justice and Correctional Services on 8 July 2015. In summary, the court found that:…
The Minister published the draft regulations on the review of the limitations of fees and interest rates on 25 June 2015. The regulations will increase and decrease interest rates and fees that credit providers can levy on consumers’ mortgage agreements, credit cards, store cards and unsecured credit transactions. The proposed changes to the interest rates for credit cards, store cards and unsecured credit transactions may leave some credit providers dissatisfied, however, the proposed increases to…