IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 6408/2008
In the matter between:

and

JUDGEMENT DELIVERED ON 10 OCTOBER 2008

ELIZE STEYN AJ

THE  APPLICATION

THE OPPOSITION

4.	Another point not raised In the Defendants' Heads of Argument, but raised by the Defendants in their affidavit opposing Summary Judgment was that the Defendants denied that the deponent to Plaintiffs affidavit had the requisite authority to sign the affidavit, I was persuaded by Mr. Sievers, with reference to reported decisions that this purported defence, is without merit.

5.1	Plaintiffs summons is vague and embarrassing and therefore excipiable in terms of Rule 23 and/or irregular in terms of Rule 30, in essence, because Plaintiff made spelling errors when referring to Defendants on 5 separate occasions in the summons;
5.2	Sections 4(1)(a), 4(1)(b) and 4(2)(c) of the National Credit Act, no. 34 of 2005 (The Act') are unconstitutional in so far as it states that the Act is not applicable to a juristic person.

THE SUMMONS
6.	Plaintiff instituted action against Defendants by way of a simple summons as provided for in Uniform Rule of Court 17(1),

See Erasmus, Superior Court Practise, B 124 and further and the comments and cases quoted.
See also BW Kuttle & Association Inc v O'Connell Manthe and Partners Inc 1984 (2) SA 665 (CPD) at 668 B-D and VolKskas Bank Ltd v Wilkinson and Three similar Cases 1992 (2) SA 38* (CPD) at 394 J.

EXCEPTIONS and IRREGULAR PROCEDURE

9.	It is trite law that an overly-technical approach by the Court with regard to exceptions and irregular procedure should be avoided. The Court does not look too critically at a pleading.
10.	Whether a pleading is vague and embarrassing on the ground of lack of particularity depends on whether it complies with the provisions of the relevant Rules of the Uniform Rules of Court. Prejudice to a litigant faced with an embarrassing pleading lies ultimately in an inability to prepare properly to meet an opponent's case.
11.	As stated hereinabove the simple summons (Form 9) intended for use in claims for a debt or liquidated demand should contain only an indication of the Plaintiff's cJaim in the most general terms. All that is required is that the claim be set out with sufficient particularity for the court to decide whether judgment should be granted and for the Defendant to be made aware of what is being claimed from him.

THE CONSTITUTIONALITY OF SECTIONS 4(1)(a), 4(1 )(b) and 4(2)(c), OF THE NATIONAL CREDIT ACT No 34 of 2005. ('The Act')
13.	The National Credit Act No 34 of 2005, (Ihe Act') is limited in its application regarding incidental credit agreements on the one hand and all credit agreements in terms whereof the consumer is a juristic person on the other hand. A juristic person has an extended meaning for purposes of the Act. It includes partnerships, any association or body of persons, corporate or unincorporated and trusts with three or more trustees. Companies and close corporations fall within the concept of a juristic person. Juristic persons do not enjoy the protection contained in certain parts or sections of the Act. The exceptions are numerous and include that juristic persons do not have the protection of the parts of the Act dealing with reckless credit, debt review, rescheduling of debt etc.

17.	The Defendants have failed to comply with the relevant provisions of Uniform Rules of Court 10 and 16 regarding the raising of constitutional issues in an action. I will deal with their submissions regardless.

(b)		ensuring consistent treatment of different credit products and different credit providers;
(c)	promoting responsibility in the credit market by;

"should he astute not to lay down sweeping interpretations at this stage but should allow equality doctrine to develop slowly and hopefully surely. This is clearly an area where issues should be dealt with incrementally and on a case by case basis with special emphasis on the actual context Mwhioh each problem arises.'

24.	There may be Instances of discrimination which do not amount to unfair discrimination. In the final analysis it has been held that it is the impact of discrimination on a complainant that is the determining factor regarding trie unfairness of the discrimination. To establish unfairness in this context various factors must be considered, including the position of the complainants in the society and whether they have suffered in the past from, patterns of disadvantage, the nature of the provision and the purpose sought to be achieved by It. If the purpose is aimed at achieving a worthy societal goal, this purpose may have a significant bearing on the question whether complainants have in fact suffered the Impairment in question.

CONCLUSION

ORDER
Judgment is claimed and is granted as follows:

i

   1,1.   Payment ofthe sum of R 982 115,42;  
1.2.   Interest:
1.2.1      on R 828 000,00 at 13.25% per annum from 9 April 2008;
1.2.2 on R 156 115.42 at 14.75% per annum from 9 April 2008 to 28 May 2008 and thereafter on R 154 115,42 at 14.75% per annum to date of payment in full.

1.3. An order declaring Erf 3186 Somerset West, in the City of Cape Town, Stellenbosch Division, Western Cape Province, specially executable.

1.4.   Costs of suit

2.     Against Second Defendant, (jointly and severally with First Defendant) for
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Elize Steyn, AJ