Sales of immovable property in terms of the National Credit Act 34 of 2005 and the Alienation of Land Act 68 of 1981

Abstract

The National Credit Act 34 of 2005 (“NCA”), the Act currently regulating the consumer credit industry in South Africa, enjoys a wide field of application. The reason for this is that, in addition to the fact that the NCA applies to basically all agreements in terms whereof credit is granted (sales and leases of movable goods, service rendering contracts, mortgage agreements, credit facilities such as credit cards, money loans), it also contains a catch-all provision in section 8(4)(f). The latter provides that the NCA also applies to any other agreement (than the ones specifically defined) in terms whereof money that is owed by one person to another is deferred, and interest, fees or charges are payable to the provider of the credit. This dissertation investigates sales of immovable property as an example of the other agreement in terms of the NCA. It also shows that Chapter II of the Alienation of Land may simultaneously to the NCA be applicable to a contract of sale of immovable property. The interrelationship between the two pieces of legislation is investigated, with a particular reference of their debt enforcement notices. The dissertation culminates in a discussion of the Amardien-decisions in terms whereof a High Court decision was overturned by the Constitutional Court.