Renier Nel Inc and Another v Cash on Demand (Kzn) (Pty) Ltd
Jurisdiction | South Africa |
Citation | 2011 (5) SA 239 (GSJ) |
Renier Nel Inc and Another v Cash on Demand (Kzn) (Pty) Ltd
2011 (5) SA 239 (GSJ)
2011 (5) SA p239
Citation |
2011 (5) SA 239 (GSJ) |
Case No |
A 5040/2011 |
Court |
South Gauteng High Court, Johannesburg |
Judge |
Satchwell J, Willis J and Monama J |
Heard |
March 14, 2011 |
Judgment |
March 22, 2011 |
Counsel |
P Sieberhagen for the appellants. |
Flynote : Sleutelwoorde B
Credit agreement — Consumer credit agreement — Applicable legislation — Whether agreement subject to NCA — Discounting transaction — Applicant advancing cash to seller of immovable property and taking as security cession of seller's rights in property — Applicant immediately acquiring C ownership of seller's claim (purchase price of property less deductions such as mortgage payments), but only receiving payment of claim on registration of transfer of property — Applicant also charging 'discounting fee' — Conveyancing attorneys paying claim and discounting fee to applicant after registering transfer of property and deducting their fees and disbursements — Act not applying to transaction — National Credit Act 34 of 2005. D
Headnote : Kopnota
The applicant would advance a cash payment to a seller of immovable property and take as security a cession of the seller's rights in the property. The applicant would immediately acquire ownership of the seller's claim (the purchase price of the property less deductions, such as outstanding E mortgage payments), but would only receive payment of the claim on registration of transfer of the property. It would also charge a 'discounting fee'. The applicant would nominate the conveyancing attorneys attending to the registration of the transfer and these attorneys would, after deducting their fees and disbursements, pay to the applicant the claim and discounting fee. The court held that the National Credit Act 34 of 2005 did not apply F to these transactions. (Paragraphs [3] – [5], [21] – [22] and [27] – [28] at 241A – D, 243F – 244B and 245C – G.)
Cases Considered
Annotations:
Reported cases G
Bridgeway Ltd v Markam 2008 (6) SA 123 (W): referred to
Burger v South African Mutual Life Insurance Society (1903) 20 SC 538: dictum at 545 applied
Commissioner of Customs and Excise v Randles Brothers & Hudson Ltd 1941 AD 369: referred to
Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530: H dictum at 545 applied
De Villiers v Roux 1916 CPD 295: referred to
FirstRand Bank Ltd t/a First National Bank v Seyffert and Another and Three Similar Cases 2010 (6) SA 429 (GSJ): referred to
JMV Textiles (Pty) Ltd v De Chalain Spareinvest 14 CC and Others 2010 (6) SA 173 (KZD): approved I
Kennedy v Steenkamp 1936 CPD 113: referred to
Lion Match Co Ltd v Wessels 1946 OPD 376: referred to
Mahomed Abdullah v Levy 1916 CPD 302: referred to
National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; [2008] 1 All SA 197; 2009 (4) BCLR 393): referred to J
2011 (5) SA p240
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): applied A
S v De Blom 1977 (3) SA 513 (A): referred to
Shooter t/a Shooter's Fisheries v Incorporated General Insurances Ltd 1984 (4) SA 269 (D): referred to
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C): B referred to
Tucker v Ginsberg 1962 (2) SA 58 (W): dictum at 62G applied
Voltex (Pty) Ltd v Chenleza CC and Others 2010 (5) SA 267 (KZP): referred to
Western Bank Ltd v Registrar of Financial Institutions and Another 1975 (4) SA 37 (T): referred to.
Statutes Considered
Statutes C
The National Credit Act 34 of 2005: see Juta's Statutes of South Africa 2010/11 vol 2 at 1-558.
Case Information
Full-bench appeal against a decision of Heaton-Nicholls J in the South D Gauteng High Court, Johannesburg.
P Sieberhagen for the appellants.
GME Lotz SC for the respondent.
Cur adv vult.
Postea (March 22). E
Judgment
Willis J (Satchwell J and Monama J concurring):
[1] This is a so-called 'full bench appeal' from the judgment of Heaton-Nicholls J F delivered in the South Gauteng High Court on 2 February 2010. The appeal is heard with the leave of the court below. The appellants were the respondents in motion proceedings in the court below. The applicant, who is the respondent in this appeal, relied on a contractual undertaking to seek specific performance of the payment of certain sums of money. The learned judge granted the applicant the G relief which it sought. It may facilitate the reading of this judgment if one hereinafter refers to the parties as they were in the court below.
[2] The applicant carries on the business of providing short-term bridging finance. The four transactions in question each relate to the provision of such finance by the applicant to the sellers of certain H immovable property owned under a sectional title scheme, as provided for in the Sectional Titles Act 95 of 1986. The sectional title scheme, in each instance, was known as Will-O-Sue, Portion 3, Erf 658, Hibberdene in KwaZulu-Natal. Two of the transactions relate to section 1 of the scheme and the other two to section 2 thereof. In respect of both I section 1 and section 2, the initial agreement was varied but nothing turns on this. The challenged transactions took place between January and February 2009 in Durban. In terms of the order of the court below the respondents were made jointly and severally liable, the one paying the other to be absolved, to pay the applicant a total sum of approximately R820 000 together with interest at the rate of 15,5 % to date of J payment and costs.
2011 (5) SA p241
Willis J (Satchwell J and Monama J concurring)
[3] Typically, the applicant would provide short-term finance in the A following manner. It would advance a cash payment to a seller of immovable property and take as security a cession of the seller's rights, title and interest in the property. The applicant would immediately acquire ownership of the seller's claim but would only receive payment in respect of the claim upon the registration of transfer of the property. B
[4] The claim would be defined as being the right to receive payment of a surplus after transfer. The surplus, in turn, was defined as the net amount that would otherwise have been payable to the seller after all specified deductions (eg payments in terms of a mortgage bond registered over the property) had been made. The applicant would charge a C 'discounting fee'.
[5] The applicant would nominate the conveyancing attorneys attending to the registration of the transfer. The conveyancing attorneys would, after deduction of their fees and disbursements, pay over to the applicant an amount which would D include the claim for the surplus which would otherwise have been due to the seller and, in addition, the discounting fee.
[6] In each instance in this particular case, the seller in the Will-O-Sue scheme was the Watchword Two Trust duly represented by Zhaun Pete Swart, and the conveyancer was the first respondent, represented by the E second respondent, the sole director of the first respondent.
[7] Copies of the so-called 'Master Discounting Agreement' entered into between the applicant and the seller in each instance appear to have been mislaid.
[8] The applicant has relied on a specimen copy of the agreement, the F terms of which appear to be common cause because the respondents have claimed that this Master Discounting Agreement was an unlawful agreement on the grounds that it fell foul of the National Credit Act 34 of 2005 (the NCA) by reason of the following:
The applicant was not a registered credit provider in terms of the G NCA.
The...
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