Vonnisbespreking : Die uitwerking van 'n bevel vir skuldherstrukturering op 'n kredietgewer se reg op skuldafdwinging waar kennis van beeindiging van skuldhersiening voor verlening van die bevel gegee is : Firstrand Bank v Raheman 2012 3 SA 418 (KZD)

Abstract

Although the court did not refer to or deal with it explicitly, the legal question in Raheman concerned the way in which the credit provider's right to debt enforcement is affected by a debt restructuring order in a case where the debt review was terminated in terms of section 86(10) of the National Credit Act before granting of the order. The author suggests that the answer to this question depends on the legal position pertaining to the following issues: (i) The moratorium on debt enforcement and the interrelationship between sections 88(3) and 86(10); (ii) the requirements for a notice of termination and the interrelationship between section 86(10), 5(b) and (11); and (iii) the legal effect of a notice of termination and the interrelationship between sections 86(10), (5)(b), (11), 87(1) and 130(1)(a). The aim of this case note is to discuss and analyse the facts and decision in Raheman with reference to the above-mentioned issues. The author concludes that the result of the decision in Raheman, although clearly inconsistent with the decision of the supreme court of appeal in Collett v Firstrand Bank Ltd 2011 4 SA 508 (SCA), is correct. However, there are several gaps in the decision. The reasons for the decision are not clear and the relevant issues and the interrelationship between the applicable sections of the National Credit Act are not properly explained. The author concludes that the apparent inconsistency between the decision of the high court in Raheman and that of the SCA in Collett indicates that the uncertainties with regard to termination in terms of section 86(10) have by no means been clarified and that they should be urgently addressed by legislative amendment.