Mahomed v Bezuidenhout and Others

• Judge: Blackwell J
• Judgment Date: 31 August 1948
• Citation: 1948 (4) SA 369 (T)
• Hearing Date: 31 August 1948
• Court: Transvaal Provincial Division

Blackwell, J.:

This is an application for a review of taxation. On 11th December of last year the present petitioner issued

Blackwell J

summons in this Court for two amounts, the first summons was for £3,030 3s. 6d. upon a dishonoured cheque against the first respondent, and the second summons was also on a dishonoured cheque for £800 3s. 6d. against the second respondent. Apparently the two respondents are so connected - whether in the domestic sphere or in business I cannot say - that the two actions raised issues that were substantially identical and, for the sake of convenience, were heard together as if they were one.

In reply to this summons, the respondents filed affidavits in which they made the following allegations, firstly that the plaintiff had, over a period of years, charged excessive and usurious interest on the loans to them, secondly, they sought to bring into issue more than 140 individual transactions over the same period involving a total amount of £73,000 and they called upon the plaintiff, in terms of sec. 9 of the Usury Act 37 of 1926, to furnish full details of these transactions. They also called upon plaintiff, in terms of sec. 11 of the said Act, to present himself for cross-examination at the hearing of the case, not only on the claims involved in the summonses to which I have referred but on other points in these transactions going back for a period of 13 years.

When the attorney for the plaintiff got these affidavits and saw the nature of the defence that was to be raised and the wideness of the issues involved, he then advised his client that this was a matter for senior counsel and senior and junior counsel were thereupon briefed and a consultation was held with both counsel in which, in some degree, the merits of the claim put forward by the defendants was considered and discussed.

When the matter came before the Court, the obviously convenient line was taken of arguing whether in law the claims put forward by the defence were justified, in other words whether being sued upon two dishonoured cheques for the amounts mentioned they could seek to invoke the provisions of the Usury Act in regard to a series of transactions totalling £73,000 and going back for thirteen years.

This point was argued and the Court was told that if the defendants failed on this point then they had no defence based on the Usury Act to the actual claims brought against them in the present proceedings. After argument, the learned...