In a recent case, the KwaZulu- Natal High Court Pietermaritzburg (sitting as a court of appeal) was called on to decide whether levies payable to bodies corporate under s 37 of the Sectional Titles act 95 of 1986 are subject to the National Credit act 34 of 2005 (the NCa). In TS Dlamini v Body Corporate of Frenoleen (KZNP) (unreported case no aR611/09; 11-03-2010) Swain J and Vahed aJ held that levies are not subject to the NCa. The appellant argued that the charging of interest on arrear levies had the consequence that this was deemed to be an ?incidental credit agreement? as defined in s 1 of the NCa*

consumer law

applicability of National Credit act to sectional title levies

Lisa Mills * See also 2010 (April) DR 26 ? Editor. and that the respondent was therefore obliged to comply with the provisions of s 129 before issuing summons, which the respondent had failed to do. The respondent argued that the claim for arrear levies did not constitute an incidental credit agreement under the NCa, for the following reasons: ? Section 1 of the NCa defines an incidental credit agreement as an agreement ?in terms of which an account was tendered for goods or services that have been provided to the consumer, or goods or services that are to be provided to a consumer over a period of time ??. ? an ?agreement? is defined in NCa as ?includ[ing] an arrangement or understanding between or among two or more parties, which purports to establish a relationship in law between those parties?. ? a ?consumer? is defined in the NCa as, inter alia, ?the party to whom goods or services are sold ? the party to whom money is paid, or credit granted ... the party to whom or at whose direction money is advanced or credit granted under any other credit agreement?. ? a ?credit provider? in respect of a credit agreement to which the NCa applies is defined as, inter alia, ?the party who supplies goods or services under [an] ... incidental credit agreement?. ? In the premises, a levy account cannot constitute an incidental credit agreement, because - a body corporate does not supply goods or services to its

2010 Certificate Courses

2 nd

Semester (12 July to 25 October)

members, nor does it advance money or credit to its members; - levies charged by a body corporate to its members do not constitute an ?account ... tendered for goods or services ... provided [by the body corporate] to the consumer?; and - levies are not payable by members of a body corporate in terms of an agreement, as defined in the National Credit act, but are payable by virtue of the provisions of the Sectional Titles act and the Regulations promulgated in terms thereof. The court accepted this argument and found for the respondent on this issue. Lisa Mills BA LLM (UND) is an advocate in Durban. She appeared for the body corporate in this matter. q The Mandela Institute of the School of Law, University of the Witwatersrand, Johannesburg will be offering the following stand-alone postgraduate certificate courses aimed at legal practitioners and graduates in the 2nd semester during the period 12 July to 25 October 2010: 2ND SEMESTER (12 JULY TO 25 OCTOBER 2010) ? Advanced Administrative Law ? Intellectual Property Law ? Advanced Broadcasting Law ? Land and Water Law ? Advanced Company Law II ? Law of Banking and Financial Markets ? Advanced International Trade Law ? Negotiation and Mediation: Deals and Disputes ? Collective Labour Law ? HIV/AIDS and the Law ? Prospecting and Mining Law www.law.wits.ac.za M

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SCHOOL OF LAW Lectures are held once a week from Monday to Thursday from 17:30 to 19:00. Advanced Company Law II lectures take place on a Saturday morning from 08:30 to 10:00. Negotiation and Mediation lectures will be held at 5 week intervals. The fee per course is R7,500. Registration and enquiries: Magda van Noordwyk ? Tel: 011 717 8435 ? Fax: 086 553 5581 ? E-mail: mandela.institute@wits.ac.za Mandela Institute 2nd semester courses 2010_De Rebus.indd 1 3/26/10 12:03:44 PM DE REBUS, may 2010 61

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