---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

Case Number: A509/2107

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

REVISED

DATE: 18/12/2019

In the matter between:

SHOPRITE INVESTMENTS LIMITED                                                                     Appellant

And

THE NATIONAL CREDIT REGULATOR                                                             Respondent

 

JUDGMENT

 

JANSE VAN NIEUWENHUIZEN J

 

INTRODUCTION

[1] This appeal emanates from a finding by the National Consumer Tribunal ("the Tribunal") that Shoprite Investments Limited (“Shoprite") extended reckless credit in contravention of the provisions of the National Consumer Credit Act, 34 of 2005 r the NCA").

[2] In view of the finding supra, the Tribunal issued the following order:

“119. Wherefore the Tribunal:

119.1 Declares that the Respondent has repeatedly contravened section 81(3) of the Act, read with sections 80(1)(b)(ii) and 81(2)(a)(li) and (iii),

119.2 Declares that the Respondent's repeated contravention of section 81(3) of the Act, read with sections 80(1)(b)(ii) and (iii)constitutes conduct prohibited under the NCA;

119.3 Declares that the Respondent's credit agreements with consumers (e), (f),(g), (h), (j), (k), (l), (m) and (n) are reckless in terms of section 83(1);

119.4 Interdicts and restrains the Respondent from, in future, granting credit recklessly to consumers;

119.5 Orders the Respondent at its costs to appoint a debt counsellor to conduct assessments on whether consumers (e), (f), (g), (h), 0), (k), (l), (m) and (n) are over-indebted as at the date of these proceedings and provide his or her assessment to the Tribunal within 60 days of the date of this order for the Tribunal to consider whether to impose remedies as provided for in section 83(3). The consumers must specifically be informed of all the Implications of this debt review process by the debt counsellor and must specifically consent and agree to this process before itis undertaken;

119.6 Imposes an administrative fine on the Respondent in the amount of R 1 000 000, 00 to be paid within 30 days of date of this order; and

119.7 Makes no order as to costs. "

 

GROUNDS OF APPEAL

[3] Shoprite's appeal against the judgment and order of the Tribunal can conveniently be dealt with under the following headings:

[3.1] dismissal of the point-in-limine,

[3.2] the finding that reckless credit was granted; [3.3] the imposition of the administrative fine; and [3.4] the relief that was granted.

 

POINT IN LIM/NE

[4] Shoprite raised a point in limine in the forum a quo in respect of the validity of the initiation of the complaint by the National Credit Regulator ("the Regulator''). Shoprite further contended that, should it be found that the initiation of the complaint was not valid, the investigation in terms of section 139 and the referral to the Tribunal in terms of section 140(1)(b) and (2)(b) are consequently also invalid.

[5] The Tribunal dismissed the point in limine and proceeded to adjudicate the merits of the complaint.

 

Facts

[6] The facts underlying the initiation of the complaint by the Regulator in terms of section 136(2) are common cause.

[7] The Regulator stated that certain newspaper articles alleging that some retailers extend reckless credit to its customers prompted an investigation that led to the decision to initiate a complaint against Shoprite.

[8] In order to establish whether the allegations carry any weight, the Regulator took the following steps:

[8.1] on 17 September 2014 the Regulator addressed a letter to Shoprite requesting: “a detailed list of all credit agreements entered into by Shoprite Investments” for the period June 2013 and June 2014;

[8.2] the requested information was duly supplied by Shoprite;

[8.3] on 20 November 2014 the Regulator addressed a further letter to Shoprite with the following request:

“Kindly supply us with Information and evidence of the affordability assessments concluded in terms of section 81(2) of the National Credit Act 34 of 2005 (the Act) for "the transactions highlighted in blue on the attached excel file. This information should be provided in the format outlined in the attached excel file”.

[8.4] the requested information was supplied in the correct format, i.e an excel file;

[8.5] on 6 March 2015 the Manager: Credit Information & Research of the Regulator addressed an Internal memorandum to the Regulator's Company Secretary requesting a further interrogation into certain transactions supplied by Shoprite.

[9] The request led to a decision taken on 17 July 2015 to initiate the present complaint against Shoprite.

[10] Much was made of the contents of the internal memorandum dated 6 March 2015 by Mr Breitenbach SC, counsel on behalf of Shoprite, and I deem it prudent to refer to the contents of the memorandum, insofar as it is relevant to the present enquiry:

“Background

In September 2014 the Chief Executive Officer of the NCR recommended that the Credit Information & Research Department conduct affordability assessments for a selected number of credit providers. The department issued data requests to a total of twenty-six (26) entitles were sampled for the exercise.

Discussion

The following conclusions can be drawn from the exercise:

1. The data request showed instances where credit providers appeared to have granted credit to consumers already had in excess of 8096 of their nett Incomes already committed with prior debt obligations.

2. Not all credit providers make use of a credit bureau report as part of their credit decision process.

3. In some instances, credit providers pushed the consumers to 90% of their nett incomes once they had taken the new loans. In such instances the consumer does not have any buffer Income In case of any unforeseen occurrences thus increases the chances of default.

4. Some credit providers appeared to provide loans to pensioners with the reported existing total commitments seem to be unreasonable.

Based on the findings of the abovementioned analysed data we request that the following entities should be subjected to further interrogation of the specified identified transactions as per attached excel file."[sic]

[11] The excel file referred to in the memorandum was not attached to the memorandum.

 

Submissions and discussion

[12] Shoprite maintains that a valid complaint must be:

[12.1] specific, namely it must be a complaint concerning an alleged contravention of the Act or one concerning an allegation of reckless credit;

[12.2] based on reasonable grounds, which the Regulator must provide when challenged to do so;

[12.3] the reasonable grounds must be based on objective facts and information the Regulator should be able to produce when required to do so.

[13] Mr Breitenbach indicated during argument that the succinct question to be answered is whether the internal memorandum of 6 March 2015, relied upon by the Regulator as the reasonable grounds for its decision, was specific enough for purposes of determining the reasonableness of the Regulator's decision to initiate a complaint against Shoprite.

[14] Mr Breitenbach submitted that due to the absence of the excel file referred to in the internal memorandum, the memorandum does not contain sufficient specificity for the purposes of a valid initiation in terms of the NCA.

[15] In considering Shoprite's proposition, it is apposite to bear in mind that a complaint may only be initiated by the Regulator If there Is a reasonable suspicion that an alleged contravention of the NCA occurred. In order to determine whether a reasonable suspicion was present, one must evaluate the objective facts and information available to the Regulator when the decision was taken.

[16] In order to determine this question, the reasons provided by the Regulator need to be examined. The point raised by Shoprite is concerned with the latter determination and more specifically whether the reasons provided by the Regulator comply with the specificity test.

[17] In support of Shoprite's contention that the specificity test was not met, Mr Breitenbach relied on paragraph [35] in Woodlands Dairy (Pty) ltd and another v Competition Commission 2010 (6) SA 108 SCA In order to appreciate the Import of the principle mentioned in paragraph [35], I deem it prudent to refer to the preceding paragraphs and the subsequent paragraphs in the judgment, to wit:

“[33] I now revert to the 2005 initiation. The tribunal did not deal with its invalidity because of Its finding that the summonses were bad for other reasons. The CAC did not deal with the issue In Its main judgment, but belatedly during the course of its Judgment dealing with the merits of the application for leave to appeal. It focused on the question whether it is possible to initiate a complaint against a cartel within an Industry without naming any one of the parties thereto, and expressed the view that any finding that a party has to be mentioned would amount to Austinian formalism of the kind of Jurisprudence employed during apartheid.

[34] The problem with this generalisation and tar-brushing is that it Ignored the structure of the Act the impact of the Constitution on its Interpretation, the CAC'S own jurisprudence, not only In Sappi[1] but also Glaxo Wellcome[2] and the relevant facts. The CAC did not take into account that the Initiation must at least have a jurisdictional ground by being based on a reasonable suspicion. The initiation and subsequent investigation must relate to the Information available or the complaint filed by a complainant.

[35] There is in any event no reason to assume that an Initiation requires less particularity or clarity than a summons. It must survive the test of legality and Intelligibility. There are reasons for this. the first Is that any Interrogation or discovery summons depends on the terms of the initiation statement. The scope of the summons may not be wider than the initiation. Furthermore, the Act presupposes that the complaint (subject to possible amendment and the fleshing-out) as initiated will be referred to the tribunal It could hardly bs argued that the commission have referred an investigation into anti­competitive behaviour in the milk industry at all levels to the tribunal.

[36] Members of the supposed cartel were in fact mentioned in the Initiating statement It was therefore not a case where no cartel member had been Identified. The problem is that there were no facts that could have given rise to any suspicion that others were involved... ·(own emphasis)

[18] In casu:

[18.1] the Regulator in its letter dated 29 September 2014 requested specific information from Shoprite;

[18.2] in respect of the bulk of the Information that was received, the letter of 28 November 2014 narrows the scope of the further Information that was required and stated, with reference to the NCA, the reasons why the information is required;

[18.3] this information informed the request for an initiation in respect of the precise grounds set out in paragraph 1-4 in the internal memorandum of 6 March 2015;

[18.4] Shoprite is specifically mentioned In the memorandum.

[19] Applying the Woodlands test to the facts supra, the following emerges:

[19.1] the initiation and subsequent investigation did relate to the information available to the Regulator on 6 March 2015; and

[19.2] there were facts that gave rise to the suspicion that the relevant provisions of the NCA were contravened.

[20] In my view, the point in limine has no merit and the Tribunal was correct, albeit for different reasons, to dismiss the point.

 

RECKLESS CREDIT

[21] The issue pertaining to the merits of the complaint is whether the method utilised by Shoprite in Its affordability assessment of potential customers complies with the provisions of the NCA.

 

Legal framework

[22] The sections in question read as follows:

[22.1] Section 80(1)(b)(ii):

“80. Reckless credit

(1) A credit agreement is reckless if, at the time that the agreement was made, or at the time when the amount approved in terms of the agreement is Increased, other than an increase in terms of section 119 (4) -

(b) The credit provider, having conducted an assessment as required by section 81(2), entered into, the credit agreement with the consumer despite the fact that the preponderance of information available to the credit provider indicated that:

(ii) Entering into that credit agreement would make the consumer over-Indebted."

[22.2] Section 81(2)(a)(ii) and (iii) and 81(3):

“81. Prevention of reckless credit. –

(2) A credit provider must not enter Into a credit agreement without first taking reasonable steps to assess-

(a) the proposed customer's:

(i) debt re-payment history as a consumer under credit agreements;

(ii) existing financial means, prospects and obligations;

(3) A credit provider must not enter Into a reckless credit agreement with a prospective customer.”

[23] As a starting point, section 81(3) prohibits a credit granter from entering into a “reckless credit agreement" with a customer. In terms of section 80(1)(b)(ii) a credit agreement is "reckless” if the conclusion thereof would make the consumer ·over­ indebted To determine whether a customer would be "over-indebted”·upon conclusion of a credit agreement, a credit provider must have regard to the debt re­ payment history of the consumer under credit agreements and to the consumer's financial means, prospects and obligations.

 

Facts

[24] Mr Carstensen SC, counsel for the Regulator, provided, in his heads of argument, a handy summary of the calculations in respect of each consumer. I liberally quote from the heads:

[24.1] Biogio,

[24.1.1] Prior to Shoprite granting credit, Biogio had a nett salary of R19 900.01, monthly instalments of R17 160.00, monthly deductions of RS 060.00 and thus a disposable Income of -R3 319.99. After the granting of the loan, the disposable income was -R3 542.37;

[24.1.2] Koekemoer on behalf of Shoprite stated that Shoprite disregarded an instalment of R456, as there was only one instalment left and thus the shortfall was reduced to -R3 086,37. In addition the consumer had a good repayment history and could borrow R47 035 from his bond.

[24.2] Feeks,

[24.2.1] Feeks, a 61-year-old pensioner, had prior to the granting of the loan a nett disposable income of - R201.00 and after the granting of the loan, had a disposable income of -R493.25;

[24.2.2] In answer Koekemoer stated that Shoprite disregarded an instalment from OK furnishers of R199 as the ITC records were not up to date, disregarded instalments of R127 per month because the customer only had two or three months to go, and taking into account a Truworths instalment the shortfall was an amount of - R547.25. Feeks was, however, married and Koekemoer stated that this was an indication that his wife could assist him with payments.

[24.3] Scheepers,

[24.3.1] Scheepers, a 67-year-old pensioner, had prior to the granting of credit by Shoprite a nett disposable income of -R435.00 and after the granting of the loan, had a disposable income of -R500.76;

[24.3.2] Koekemoer stated that Shoprite disregarded instalments of R161, R180, R113 and R118, but this still left a negative disposable income of -R1 725. Koekemoer, however, stated that Scheepers was a good payer and as he was married, which led to the indication that his wife could assist him with payments.

[24.4.] Price,

[24.4.1] Price was the subject of a garnishee order on his salary and had a nett monthly disposable income of -R9 888.29. After the granting of the loan he had a nett disposable income of -R 10 113.77.

[24.4.2] Koekemoer explained that the negative disposable income was-R9 888.29, but the fact that he was married and his wife could assist was taken into account.

[24.5] Potgieter,

[24.5.1] Potgieter, a 61-year-old pensioner, had a disposable monthly income of -R810.65 prior to the loan, and after Shoprite granted the loan she had a nett disposable income of-R1 144.02. There was also an account from Foschini dated 12 June 2003 indicating that Potgieter was in arrears with her monthly repayments. Potgieter defaulted on her payments to Shoprite and the goods were repossessed on 5 June 2014 and sold, leaving a shortfall of R3 977.66, which Shoprite demanded from Potgieter.

[24.6] Mavimbele,

[24.6.1] Prior to Shoprite granting Mavimbele the loan, his nett income was -R2 136.48. After granting the loan, his disposable income was -R2 619.83;

[24.6.2] Koekemoer explained that an Instalment of R269 was disregarded because ITC was not up to date, an Instalment of R119 was disregarded because it was a "month to month expenditure", a Barko instalment of R2525 was disregarded because Barko lends until month end, (no evidence of this is provided), monthly obligations due to Tracker, MiWay and Multlchoice were not taken into account and thus the consumer had a positive disposable Income of R183.17. Mavimbele was also married which resulted in an indication that his wife could assist him with payments.

[24.7] Dontsa

[24.7.1] Prior to the grant of the loan, Dontsa had a nett disposable income was -R2 411.91 and after the granting of the loan, his disposable income was -R2 674.01.

[24.7.2] According to Koekemoer Shoprite disregarded monthly expenses of R11 535 as they were month to month expenses. Dontsa was still left with a deficit of R2 770.01, but Koekemoer stated that Dontsa had a good repayment history. This notwithstanding the fact that Dontsa's Autopage account was in arrears and the account did not have a healthy repayment history. Koekemoer stated that this was disregarded because "there may be some reason, unconnected with poor payment as such, why the Autopage account appears to be so far overdue'. The fact that Dontsa was also married and his wife could assist him with payments was also taken into account.

[24.8] Mbaniwa

[24.8.1] Mbaniwa, a 64-year-old,had a nett monthly income prior to the grant of credit of-R5 273.32 and after the grant of credit was -R5 868.62;

[24.8.2] Koekemoer stated that Shoprite ignored the instalments due to Vodacom (R687), Multichoice (R293) and "other commitments" of R3 000 and an amount of R2 088 which was "probably being a wrong recollection by the consumer." Even so Mbawina still had a shortfall of -R2 205,32 but a good repayment history.

[24.9] Baeta,

[24.9.1] Baeta, a 78-year-old pensioner, had a nett disposable income of-R48.00 prior to the grant of credit. After the granting of credit, the nett disposable income was -R462.61.

[24.9.2] Koekemoer explained that Shoprite ignored the ITC records in respect of Baeta because they were not correct.

 

Tribunals' finding

[25] The Tribunal considered the aforesaid facts and held as follows:

“80. Considering the apparent position customers now may have found themselves in after the assessment, and without going into extensive detail on this aspect, the Respondent's evaluation mechanisms, or models and procedures do not bring about a 'fair and objective result to all parties concerned-

80.1 Consumers' pre-existing commitments and future commitments are being sacrificed In favour of the consumer entering into a new credit agreement with the Respondent,

80.2 Pre-existing debt obligations are disregarded contrary to the provisions of the Act;

80.3 That credit bureau Information Is adjusted by the Respondent to enable it to grant credit where the information points to the contrary.

…

84. Having regard to the foregoing the Tribunal finds that the Respondent repeatedly contravened section 8 1(3), read with section 80( 1}(b)(ii) and 81(2)(a)(ii) and (iii)of the NCA through entering into credit agreements with consumers “E”, “F”, “G”, “H”, “J”, “L”, “M” and “N”.

85. The Tribunal furthermore finds that the Respondents evaluation mechanisms or models and procedures used in meeting its assessment obligations under section 81, does not result in a fair and objective assessment as through the machinations it described to enter into credit agreements with cor1sumers meant them having to sacrifice meeting their obligations under existing credit agreement and other short-term financial obligations.” [sic]

 

Submissions and discussion

[26] Shoprite contends that the Tribunal erred in failing to take into account the various types of adjustments Shoprite made in its affordability calculations. Furthermore, the Tribunal erred in overemphasising the negative outcomes of the pro forma affordability calculations performed by Shoprite. lastly the Tribunal erred in its finding that Shoprite took final (and not proforma) calculations and then deliberately tinkered with them so as to make the outcomes inaccurate. According to Shoprite the exact opposite is true. Shoprite contends that the adjustments were made and certain factors were taken into account precisely because the pro forma affordability calculations on their own did not give an adequate, complete and fair picture of the relevant consumer's overall situation and his or her likelihood of becoming over­ indebted.

[27] To my mind the "adjustments" made by Shoprite pose several problems. The following comes inter alia to mind:

[27.1] prospective customers were blissfully unaware of the way in which Shoprite is arranging their financial affairs;

[27.2] customers were not consulted on whether they are prepared to sacrifice their short term insurance or DSTV prescriptions in order to obtain the credit;

[27.3] Shoprite did not have facts pertaining to the income and expenses of the spouses of the customers;

[27.4] the assumption that a spouse will stand in if the customer default is speculative to say the least;

[27.5] it is not clear whether a customer would be willing to increase his or her monthly home loan instalments in order to obtain the credit offered by Shoprite. This does not even take the amount with which the home loan instalment will increase into account.

[27.6] merely excepting that a good reason most probably exists for an account being in arrears for almost six months, cannot be sufficient without knowledge of the true facts.

[28] The most astonishing aspect of Shoprite's approach is the fact that many consumers still had negative affordability figures after the "adjustment” exercise.

[29] In view of the aforesaid, I agree with the finding of the Tribunal that Shoprite extended reckless credit.

 

ADMINISTRATIVE FINE

[30] The tribunal imposed, in terms of the provisions of section 150(c) read with section 151, an administrative fine of R 1 000 000,00 on Shoprite.

 

Legal framework

[31] Section 150 relates to the orders that the Tribunal may make. Section 150(c) provides for the imposition of an administrative fine in terms of section 151.

[32] The relevant provisions of section 151 read as follows:

“151.  Administrative lines.

(1) The Tribunal may Impose an administrative fine in respect of prohibited or required conduct in terms of this Act, ......

(2) An administrative fine imposed in terms of this Act, , may not exceed the greater of-

(a) 10 per cent of the respondent's annual turnover during the preceding financial year; or

(b) R 1000 000.

(3) When determining an appropriate fine, the Tribunal must consider the following factors-

(a) the nature, duration, gravity and extent of the contravention;

(b) any loss or damage suffered as a result of the contravention;

(c) the behaviour of the respondent,

(d) the market circumstances in which the contravention took place;

(e) the level of profit derived from the contravention;

(f) the degree to which the respondent has co-operated with the National Credit Regulator, and the Tribunal, and

(g) whether the respondent has previously been found in contravention of this Act, …"

 

Tribunal's findings

[33] The reasons for imposing the administrative is set out in the judgment as follows:

“117.4 The Tribunal is of the view that the nature of the offense, namely entering Into reckless credit agreements with the consumers to the level and extent of negative affordability and placing consumers In a position where they have to consider defaulting on pre-existing contracts to pay for new credit with the Respondent as is evident in this matter, justifies the imposition of an administrative fine. "

[34] In respect of the factors mentioned in section 151(3)(a) to (g), the Tribunal's relevant reasons read as follows:

"118.1 With regard to the gravity, nature and extent of the prohibited conduct, in the absence of evidence from the Applicant In these proceedings the number of instances of prohibited conduct in this matter counts nine (9). There is no evidence before the Tribunal of what portion of the Respondent's lending these contracts represent.

118.2…

118.3 The Tribunal agrees with the Applicant's analogy of punishment for criminal acts to the extent that for each different crime the person may get charged and penalized. However, in this case the contravention relates to one specific type of contravention (crime) and the number of consumers involved would impact on the extent of the fine not the number of fines to be imposed.

118.4 A factor the Tribunal takes into account, as an aggravating factor in the determination of the amount of the administrative penalty in terms of section 151(3) vis-a-vis the “… (c) the behaviour of the respondent·•is that even after the Respondent had "addressed" the negative pro forms calculations and "influenced them for the better: and the majority of the consumers still had negative affordability figures, It still continued and entered into credit agreements with them.”

 

Submissions and discussion

[35] The respondent submitted that the Tribunal erred in:

[35.1] concluding that it could impose an administrative fine not exceeding R 1 000 000, 00, without any reference to Shoprite's turnover;

[35.2] only having regard to two of the factors mentioned in section 151(3), when it considered the amount of the fine.

[36] When it was pointed out to Mr Breitenbach during the hearing of the matter that section 151(2) refers to the greater" of the 10% of the annual income of a respondent or R 1 000 000, 00, he conceded that the first ground of appeal is bad in law.

[37] Should 10% of the annual income of a respondent exceed R 1 000 000, 00, the Tribunal may impose such amount. Should the 10% annual income be less than R 1 000 000, 00, the Tribunal may impose a fine of R 1 000 000, 00. The illogical reasoning underlying the first ground of appeal is apparent and the concession by Mr Breitenbach was well made.

[38] In respect of the second ground of appeal, the respondent is correct that section 151(3) provides that the Tribunal, in considering an appropriate fine, must take all the factors listed in the section into account. In the result, the section js mandatory and the Tribunal may not impose a fine if information pertaining to the various factors is not before it. [See: National Credit Regulator v City Finance (NCTl22130/2015/55(6) NCA) ZANCT 14 (2 July 2015)]

[39] Whether the Tribunal took account of the factors contained in section 151(3) (b), (d), (e), (f) and (g) is not apparent from the judgment. Mr Carstensen submitted, in his heads of argument, that it is "clear" that the Tribunal took all the factors mentioned in section 151(3) into account. In support of this submission Mr Carstensen referred to paragraph (117.4] of the Tribunal's judgment quoted supra.

[40] The difficulty with the aforesaid submission, is the fact that it does not appear from the judgment itself that all the factors mentioned in section 151(3) were taken into account and to what extent each factor had an Influence in the Tribunal's decision to impose a fine of R 1 000 000, 00.

[41] I agree that the Tribunal erred in this regard. The question then arises whether it is possible for this court to evaluate the appropriateness of the fine in view of all the information contained in the record.

[42] Shoprite stated that it has not previously been found to have contravened the Act and consequently evidence in respect of section 151(3)(g) is on record. It appears from the evidence that Shoprite has co-operated with the Regulator as envisaged in section 151(3)(f). The market circumstances in which the contravention took place, is clear from the evidence. The affected consumers are mostly pensioners and individuals with a low average Income. In the result, the market for which Shoprite caters largely consists of financially vulnerable members of society.

[43] No evidence is on record in respect of any loss or damage suffered as a result of the contravention (section 151(3)(b)) or of the level of profit Shoprite derived from the contravention (section 151(3)(e)). In the result, both these factors will be taken to be in Shoprite's favour.

[44] Having had regard to all the factors supra, I am of the view that the nature and gravity of the contravention coupled with the market in which the contraventions took place justifies the imposition of a fine of R 1 000 000, 00.

[45] In the result, the appeal in respect of the appropriateness of the fine falls to be dismissed.

 

RELIEF

[46] Shoprite submitted that the declaration in paragraph [119.1] of the order, that it had “repeatedly" contravened the relevant sections of the Act is not correct. Shoprite pointed out that the evidence produced by the Regulator proves that it had only contravened the Act in nine instances.

[47] Mr Carstensen submitted that the word "repeatedly" is not strictly speaking necessary for the declaration that Shoprite had contravened the relevant sections of the Act and on the aforesaid basis had no objection to the word being deleted from the order.

[48] In respect of the interdict contained in paragraph [119.4] of the order, which restrains Shoprite from granting reckless credit in future, Mr Carstensen, quite correctly, conceded that the interdict will serve no purpose as Shoprite may in any event in view of the provisions of the Act, not grant reckless credit.

[49] These concessions will be reflected in the order infra.

 

COSTS

[50] The Regulator has been substantially successful and is entitled to its costs.

 

ORDER

1. The appeal succeeds to the following extent:

1.1 the word "repeatedly” is deleted from paragraph [119.1];

1.2 the interdict in paragraph [119.4] is set aside.

2. Except to the extent indicated in paragraph 1 above, the appeal is dismissed.

3. The appellant is ordered to pay the costs of the appeal.

 

 

_______________

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

I agree

 

 

__________________

C.P. RABIE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

I agree

 

 

____________________________

N.P. MNGQIBISA-THUSI

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

DATE HEARD 20 November 2019

JUDGMENT DELIVERED 18 December 2019

 

APPEARANCES

Counsel for the Appellant: Advocate A.M. Breitenbach SC and

Advocate C.R. Cilliers

(082 775 0599/072 187 2589)

Instructed by: Werksmans Attorneys

(021 809 6019)

Ref. No. H VAN NIEKERK/

J MARDON/SHOP0010.659

Counsel for the Respondent: Advocate P.L. Carstensen SC

(011 290 4000/082 451 4065)

Instructed by: Mamokgalake Chuene Attorneys

(011 784 2505)

Ref: MR CHUENE/NCR1

---