IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION : MTHATHA)

CASE NO. 1751/08

REPORTABLE

In the matter between:

NOZUKO CECILIA ZOKUFA Applicant

and

COMPUSCAN (CREDIT BUEAU) Respondent

JUDGMENT

_____________________________________________________________

ALKEMA J

[1] This application concerns, firstly, the issue of jurisdiction; and if found

to exist, secondly, the applicant’s entitlement to a mandamus in terms of s.

70(2)(g) read with s.65(1) and (2) of the National Credit Act 34 of 2005.

Hereafter referred to as “the Act.”

[2] The relevant facts, which are largely common cause, may be summarized

as follows:

[3] The applicant resides in Mthatha and is an incola of both the Republic

of South Africa and of this Court. The respondent is a company with limited

liability duly registered as such and carrying on business as a credit bureau

in Stellenbosch where it has its registered office and main place of business.

It has no place of business within the area of jurisdiction of this court. As

such, it is an incola of South Africa but a peregrinus of this court.

[4] During May 2008, the applicant applied for certain credit facilities from

the Capitec Bank in Stellenbosch. The application was refused. The

applicant, as she was entitled to do, asked for reasons for the refusal.

Capitec Bank advised her that the refusal was based on adverse credit

reports obtained from, inter alia, the respondent in Stellenbosch.

[5] Acting on her instructions, and on 12 August 2008, a firm of attorneys in

Mthatha, A.S. Zono and Associates, addressed a letter to the respondent in

Stellenbosch requesting it to furnish it “…with a copy of the credit records,

file and information and their originating sources concerning our client for

inspection …”

[6] Protracted correspondence followed between the respondent and Zono

Attorneys, the particulars of which are of no moment. It suffices to say that

the respondent required the applicant to sign a document entitled

“Application for your personal credit profile” which contains certain terms

and conditions upon which it was said the information will be released, such

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as the consent by applicant to the jurisdiction of the Stellenbosch

Magistrate’s Court; the payment of a prescribed fee; the consent by applicant

to the indemnification and limitation of liability of the respondent

consequent upon incorrect information being supplied; and the acceptance

by applicant of a “voetstoots” clause to the effect that no warranty is given

that the information supplied is correct. Some negotiations followed

between the parties regarding the terms of conditions for the release of the

information, but eventually the applicant refused to consent to any condition

and insisted on the unconditional release of the report. The respondent

refused to release the report unconditionally, and the applicant instituted the

present application.

[7] The various orders sought by the applicant in her Notice of Motion have

all essentially the same effect, and are encapsulated by paragraph 2 in which

she asks that the respondent is “… directed to make available … the credit

record, file and information concerning applicant … in terms of the

National Credit Act 34 of 2005.” The application was instituted on 14

November 2008 and served on the respondent on 24 November 2008. On 15

January 2009 the respondent filed and served its answering affidavit in

which it raised the following defenses:

1. The lack of jurisdiction of this court to entertain the application;

2. Save for the condition pertaining to the payment of a fee which

condition was waived by respondent prior to the institution of

the proceedings, the fact that the other conditions relating to

indemnity and the like are necessary for the protection of the

business rights of the respondent and are not precluded by the

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Act, and may therefore be lawfully insisted upon by a credit

bureau before the release of the information.

3. The failure on the part of the applicant to exhaust alternative

remedies available to her under Chapter 7 of the Act, and in

particular her failure to refer her complaint to the National

Credit Regulator in terms of s. 136 thereof.

[8] The defense raised under (3) above; namely the failure to refer the

complaints to the National Credit Regulator under s.136 was not persisted

with by counsel for Respondent in either his Heads of Argument or in

argument before me, and it is therefore unnecessary to deal therewith.

[9] In regard to the issue of jurisdiction, Mr Botma, who appeared on behalf

of the respondent, argued that the foundation of applicant’s case rests on the

provisions of s.72(1)(b) of the Act which provides, and I paraphrase, that:

“every person has a right to … inspect any credit bureau, or national credit

register file or information concerning that person …” The operative verb

“inspect,” so the argument goes, shows that the applicant’s right (to

inspection) arises and can only be enforced where the national credit

register, file or information held by such a credit bureau is kept.

[10] In casu, the respondent and all its credit registers, files and information

kept by it, can only be inspected at its place of business which is in

Stellenbosch.

[11] Therefore, so he argued, all jurisdictional facts allegedly giving rise to

the claim for a mandamus arose outside the area of jurisdiction of this Court.

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[12] Alternatively, and in any event, Mr Botma argued that based on the

principle of effectiveness, this court has no jurisdiction to order a peregrinus

of this court to do something outside its area of jurisdiction in circumstances

where it has no power to enforce its order.

[13] Mr. Matebese, who appeared on behalf of the applicant, countered the

above arguments by submitting that the case of the applicant is not that the

respondent refused her to inspect any register or file or information kept by

the respondent, but rather that it refused to furnish (my emphasis) her with

copies of credit records, files and information concerning her, as requested

in the letter from Zono Attorneys dated 30 August 2008 referred to above.

Mr Matebese referred me to s.70(2)(g) of the Act which provides, and I

paraphrase, that:

“…a registered credit bureau must …issue a report to any person who

requires it….”

[14] He argued that the applicant qualifies as a person “who requires it”,

and that the statutory obligation on respondent under s.70(2)(g) of the Act is

to issue the report containing the required information to the applicant, who

is in Mthatha where she “requires it”.

[15] Mr Matebese therefore contended that all, or most, of the jurisdictional

acts necessary for a mandamus occur within this court’s area of jurisdiction.

[16] In regard to the merits of the application, Mr Matebese argued that the

statutory rights and obligations under the Act are conditional only to those

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conditions imposed by the terms of the Act, and a credit bureau is not

lawfully entitled to unilaterally impose any other condition. The respondent

was therefore obliged to furnish the applicant with the required information

without attaching any conditions to its statutory obligations.

[17] In this regard Mr Botma argued that, in order to give business efficacy

to s.72 and 70 of the Act, a credit bureau must be allowed to attach limited

conditions to the rights of inspection in order to at least protect its business

interests. In the alternative, he argued that the respondent had attached to its

answering affidavit three default judgments entered against the applicant

based on acknowledgements of debt duly signed by her, which constitutes

substantial compliance with the Act.

[18] Mr Botma submitted that since the applicant had knowledge of these

default judgments prior to the institution of these proceedings, she realized

that they formed the basis of the adverse credit report and that, accordingly,

the information sought was already in her possession and she is therefore not

entitled to the relief claimed. He submitted, in the alternative and whatever

the outcome of this application may be, that she should in any event be

deprived of any costs; alternatively, and only if the application succeeds, she

should not be granted costs after the filing and service of the answering

affidavit.

[19] Ordinarily, the merits of an application is only decided if the court has

the necessary jurisdiction to entertain the application. However, for reasons

which will hopefully arise during the course of this judgment, the merits of

the application are so closely interwoven with the issue of jurisdiction, that it

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is not possible to decide the issue of jurisdiction without also deciding the

merits. The starting point nevertheless remains the issue of jurisdiction.

[20] Neither Counsel referred me to any case law or authority dealing

specifically with the issue of jurisdiction under ss 70 or 72 of the Act, and

nor was I able to find any authority on these issues. I must therefore decide

the issue of jurisdiction on general principle and I now proceed to do so.

[21] This task is made difficult not only by the paucity of decided cases on

the subject of jurisdiction in interdict proceedings, but also by the added

difficulty of extracting general principles from the available judgments, few

as they are. The starting point, I believe, are the provisions of s. 19(1) of the

Supreme Court Act 59 of 1959.

[22] Section 19(1) of the Supreme Court Act 59 of 1959 endows a provincial

or local division of the High Court with jurisdiction in civil matters “… over

all persons residing or being in and in relation to all causes arising ….

within its area of jurisdiction…”

[23] The Respondent is neither “residing” nor “being in” the area of this

court, and the issue remaining is whether it can be said, on the facts of this

case, that “all causes arising” within the area of jurisdiction of this court are

present. First, it must be established what is meant by “all causes arising”

within the meaning of s.19(1).

[24] For a proper understanding of the meaning of that expression in s.19(1),

I believe it is unavoidable to have regard to the history of the section. I

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intend to deal with such history very briefly, but for a full discussion on the

subject, see, for instance, Herbstein and Van Winsen, The Civil Practice of

the High Courts of South Africa (5th Ed.) (Vol. 1) p.4-93; Estate Agents

Board v Lek 1979 (3) SA 1048 AD at 1059C-1060A.

[25] Since the 17th century there existed various courts in Southern Africa,

independent from each other and each with its own area of territorial

jurisdiction. Each court derived its particular jurisdiction from a statute

operating in that particular area. As time went on, the wording in these

different statutes became similar. They essentially provided that the powers

of jurisdiction will be determined according to common law, which at the

time was Roman-Dutch law. This situation continued throughout the

gradual colonization of South Africa from the 18th century until after the

Anglo-Boer War in 1902. Although a new order in the judicial system was

introduced in 1902, the various Supreme Courts retained their original

jurisdiction. The position remained unaltered by the promulgation of the

South Africa Act, 1909 which established the Union of South Africa and

also a uniform Supreme Court of South Africa.

[26] The judicial system was again re-structured by the Supreme Court Act

1959, but again the various provincial and local divisions of the Supreme

Court of South Africa retained their original jurisdiction. Such original

jurisdiction was in the first instance conferred, as I remarked, by certain

statutory provisions going back to early colonial times such as, for instance,

the Charter of Justice 1832 of the Cape. The jurisdictions of, for instance,

the (then) OFS and TPD divisions of the Supreme Court were defined by

statutes going back to the days of the pre-1899 independent Republics of the

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Transvaal and Orange Free State. In defining jurisdiction, all these statutes

made reference, in some way or the other, to the expression “causes

arising.” The effect of the terminology used in all these enactments was

held by the various courts to be that the court had power of jurisdiction in

respect of legal proceedings over which the common law had jurisdiction

and which arose in its area of jurisdiction. Such terminology was preserved

in the wording of s. 19 of the Supreme Court Act, 1959.

[27] The above state of affairs was not disrupted by either the Republic of

South Africa Constitution Act, 1961 or by the Constitution of the Republic

of South Africa Act, 1996.

[28] It is therefore not surprising that in a long line of cases over a period of

more than 100 years the expression “causes arising” used in the various

enactments (including the Charter of Justice, 1832) was interpreted not as

“causes of action”, but as “legal proceedings” over which the common law

has jurisdiction. The expression “all causes arising” now used in s. 19(1)

of the Supreme Court Act, 1959 and quoted above, bear a similar meaning

and is continuously interpreted in the same manner.

[29] In Bisonboard Ltd v K. Braun Woodworking Machinery (Pty) Ltd 1991

(1) SA 482 A at 486 D-E, Hoexter JA said in relation to s. 19(1):

“In a long line of cases, the words ‘causes arising’ have been

interpreted as signifying not ‘causes of action arising’ but ‘legal

proceedings duly arising’ that is to say, proceedings in which the

Court has jurisdiction under the common law.”

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[30] In Gulf Oil Corporation v Rembrandt Fabrikante en Handelaars

(Edms.) Bpk. 1963 (2) SA 10 (TPD), Trollip J (as he was then), and after

having considered the cases on the subject, came to the conclusion that

“causes arising within its area of jurisdiction” in section 19(1) means an

action or legal proceeding which, according to the law, has duly originated

within the Court’s area of jurisdiction. He therefore concluded at 17F:

“The result is that the Court’s jurisdiction under s. 19(1) is simply

determined, as hitherto, by reference to the common law and/or any

relevant statute.”

[31] This is still the law today. In Cordiant Trading CC v Daimler Chrysler

Financial Services 2005 (6) SA 205 (SCA), Jafta JA in a unanimous

decision succinctly put it at 211D (para 11) as follows:

“Plainly, what is meant in the above interpretation is that ‘causes

arising’ does not refer to causes of action but to all factors giving rise

to jurisdiction under the common law.”

See also: Leibowitz t/a Lee Finance v Mhlana and others (2006) 4 All SA

(SCA) 428 at 430 (para 7).

[32] The issue, therefore, is whether the legal proceedings in this application

can be said to have arisen within the area of jurisdiction of this court. The

legal proceedings are based on facts from which legal inferences may be

drawn. These facts are often referred to as the “jurisdictional connecting

factors” and I will continue to use this description when referring to these

facts.

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[33] The approach generally in considering jurisdictional connecting factors

is now, I believe, firmly established by the Supreme Court of Appeal. The

enquiry depends on (a) the nature of the proceedings, (b) the nature of the

relief claimed therein, or (c) in some cases, both on (a) and (b). In Estate

Agents Board v Lek (supra) at 1063 F, Trollip JA, said:

“I therefore turn to consider whether the court a quo had jurisdiction

in these proceedings according to the general principles of our law.

That depends on (a) the nature of the proceedings, (b) the nature of

the relief claimed therein, or (c) in some cases, both (a) and (b).”

[34] The learned Judge proceeded to point out at 1063H-1064A that

approach (b) is based on the principle of effectiveness; but that it is possible

for one court to have jurisdiction based on the nature of the proceedings, and

for another based on the nature of the relief claimed. I turn first to the nature

of the proceedings in this application.

[35] The claim is for a mandatory interdict, which is part of the adjective

law; i.e. the law of procedure. The law of interdict in South Africa today is

the result of a development of a procedure known by the Roman-Dutch law

as the mandament poenaal. The mandament poenaal under Roma-Dutch

law conferred jurisdiction on a court to prevent the occurrence of an

unlawful act within its area of jurisdiction, which was often coupled with an

order to pay a penalty. Provided the unlawful act was about to take place

within its area of jurisdiction, the mandament founded original jurisdiction

to make the order, and no exception to jurisdiction was allowed. For a full

discussion on the subject, see Prest, The Law and Practice of Interdicts,

p.12-33; Mtshali v Mtambo and another, 1962 (3) SA 469 (GWLD).

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[36] Historically, as Prest, (supra) remarks at page 9, the foundations of the

modern South African law of interdict are to be found principally in the

Roman-Dutch law, although the contribution made by the English law

cannot be disregarded. The requirements for the mandament poenaal under

the Roman-Dutch law was in a long line of cases over more than 150 years

refined and developed which ultimately culminated in Setlogelo v Setlogelo

1914 AD 221, which is to this day the leading case on the requirements for

an interdict. Our courts have over the succeeding years further elaborated on

the set of requirements for the grant of interlocutory interdicts, but since this

case is concerned with the grant of a final interdict, these requirements are of

no further concern.

[37] It is now trite that the three requirements for a final interdict are (1) a

clear right; (2) a threat to breach such right (in the case of a prohibitory

interdict) or a refusal to act in fulfillment of such right (in the case of a

mandatory interdict); and (3) no other remedy.

[38] I believe, with respect, that it follows from all of the above that on a

proper interpretation of s.19(1) and on general principle a court will have

jurisdiction to grant an interdict if the jurisdictional connecting facts

supporting the requirements for the interdict are present within its area of

jurisdiction. There is some authority for the above proposition, but as I will

shortly demonstrate, the decided cases and legal writing on the subject are

not harmonious, few as they are.

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[39] The first case of some note and often referred to, is Kibe v Mphoko and

Another 1958 (1) SA 364 (O). The facts in Kibe (supra) were these: Both

applicant Kibe and first respondent Mphoko were not only peregrini of the

court, but also of South Africa. The applicant applied for an interdict

preventing the first respondent from withdrawing money from a banking

account held by first respondent with second respondent (the bank) at

Zastron, within the area of jurisdiction of the Court.

[40] Referring to Hacklaender v Standard Bank and Another, 1923 CPD 271

(which case did not follow two earlier decisions in the same division) De

Wet A.J held at 367A-B that:

With due respect to the learned Judge, our Court have held that,

where the respondent is a peregrinus, the Court has jurisdiction if, in

the case of a mandatory interdict, the act is to be carried out within

such area, or in the case of a prohibitory interdict, if the act against

which an interdict is about to be done in such area. (See Leyland v

Chetwynd, 18 (1901) S.C. 239; Kramarski v Kramarski and Others,

1906 T.S. 937; Brown v McDonald,1911 E.D.L. 423; Ex parte

Kirsten, (supra);Ex parte Winter, 1948 (3) S.A. 377 (W)).”

[41] The learned Acting Judge then proceeded to say (at 367C) that he was

therefore not prepared to follow Hacklaender (supra) and he came to the

conclusion “… that in the case of a prohibitory interdict, the Court has

jurisdiction if the act against which the interdict is claimed is about to be

done in such area.”

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[42] It is clear from the above extract of the judgment that the court applied

the law of jurisdiction as it was known under the mandament poenaal

without having regard to the other requirements for a final interdict as laid

down in Setlogelo (supra). Such failure, with respect, not only offends the

recognized interpretation of s.19(1) (which admittedly was not yet

promulgated at the time of the judgment), but by focusing only on the

unlawful act it also disregards the most fundamental requirement for the

grant of a mandatory interdict, namely the existence of a clear right. Take

the following example:

[43] The applicant is domiciled in, say Johannesburg, where he operates a

banking account. The respondent is in Cape Town. The respondent

threatens to unlawfully withdraw funds from applicant’s banking account

either electronically or from an automatic teller machine (ATM) in Cape

Town. If the location of the unlawful act against which the interdict is

claimed is the only determining factor, then only the Western Cape High

Court to the exclusion of the North Gauteng High Court will have

jurisdiction. This approach ignores the fact that the applicant’s clear right

(not to have funds unlawfully withdrawn from his account which is held in

Johannesburg), vests in Johannesburg. That is also where the breach takes

place (the second requirement) and where he is prejudicially affected; albeit

by a physical act committed in Cape Town.

[44] Generally, a breach of a right occurs at the place where the right vests.

The act of setting the breach in motion may occur somewhere else, but the

breach usually takes place where the right vests.

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[45] The same principle applies in the case of a mandatory interdict: if the

same applicant has a legal right against the same respondent which

obligates the respondent to make payment to the former in his banking

account in Johannesburg on a certain date by either an electronic transfer or

a deposit, and the latter unlawfully refuses to do so whilst he or she is

temporally in Cape Town, then on the principle formulated in Kibe (supra)

the Western Cape High Court will have exclusive jurisdiction to the North

Gauteng High Court.

[46] As I will indicate later more fully, the Appellate Division (as it was then

known) rejected this approach in Estate Agents Board v Lek (supra) as

“tenuous and uncertain,” and disapproved of the notion that a court will

have jurisdiction depending on the fortuitous whereabouts of a respondent at

any given time. There is, in any event, no reason in either principle or in

logic to simply ignore the first requirement for an interdict (the existence of

a right) in the enquiry into “legal proceedings duly arising” within the

meaning of s.19(1). By having regard to all the facts supporting all three

requirements for an interdict, full effect is given to the meaning of s.19(1)

and, on the example given above, the North Gauteng High Court will have

jurisdiction (and depending on the facts in some cases also concurrent

jurisdiction with the Western Cape High Court), to entertain both a

prohibitory and a mandatory interdict.

[47] It follows that in my respectful view, the principle as formulated in

Kibe (supra) is outdated and should no longer be followed.

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[48] The second judgment worthy of comment, and in my respectful view

preferable and more compatible with general principle, is Mtshali v Mtambo

and another (supra). This judgment was decided after the promulgation of

the Supreme Court Act, 1959 and s.19 thereof. The facts were briefly the

following.

[49] The applicant applied for a declarator that the conference of the

Ethiopian Church of South Africa held at De Aar during December 1961

was not a properly convened conference, and secondly for an interdict by

prohibiting the carrying out of the resolutions taken at the conference, and

costs.

[50] The learned Judge, De Vos Hugo J, lamented at 473C-D:

“There is a singular dearth of authority in the form of decided cases

dealing with jurisdiction in the interdict procedure. None in point has

been cited to me and my own researches have failed to reveal any

such case. The obvious course, therefore, is to go to the Roman-

Dutch authorities.” (No mention is made of Kibe (supra) in the

judgment).

[51] The learned Judge thereupon proceeded to examine the Roman-Dutch

authorities and the practice of the “mandament poenaaal” discussed above.

The learned Judge had regard to the development of the mandament poenaal

and the modern day requirements of an interdict as laid down in Setlogelo

(supra), because he concluded at 474A of the judgment:

“On the short ground, therefore, that lack of jurisdiction cannot be

interposed as an objection in proceedings for an interdict in which

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the recognized requirements of an interdict are satisfied by facts

within the territorial jurisdiction of the Court, I hold that Mr

Witepski’s point is unfounded and I reject it.” (My emphasis)

[52] As I said, at the time the above judgment was delivered in 1962, s.19(1)

was already on the statute books but no reference is made in the judgment to

the section. A possible explanation is that cases such as Gulf Oil

Corporation (supra) and other judgments mentioned earlier in which the

meaning of s.19(1) were fully interpreted, may not yet have been reported.

[53] The judgment in Mtshali (supra) nevertheless, in my respectful view,

gives full effect to s. 19(1) as the section was developed in our case law over

the years culminating in recent cases such as Cordiant Trading CC (supra)

and Leibowitz (supra). It also takes cognizance of the development of the

mandamus poenaal as it culminated in Setlogelo (supra). By having regard

to the facts giving rise to the requirements for an interdict and by enquiring

whether those facts originated or exist in the court’s territorial area of

jurisdiction, full effect is also given to “legal proceedings duly arising”

within the meaning of s.19(1), and it overcomes the difficulty posed in the

hypothetical example mentioned above.

[54] The decisions in Kibe (supra) and Mtshali (supra) appear to be the

leading cases on the subject of jurisdiction in interdict proceedings, and have

been referred to with approval in a number of cases; most noteably in a

judgment of this court in Vulindlela Furniture Manufacturers (Pty) Ltd v

MEC, Department of Education and Culture, Eastern Cape, and Others

1998 (4) SA 908 (Tk). However, the distinction between Kibe (supra) and

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Mtshali (supra) and between the various tests for jurisdiction such as the

cause of action; the location of the pending unlawful act or omission to act;

or the location of the facts supporting the requirements for an interdict, seem

not to be made in any of the reported judgments. The prevailing position in

our case law today appear to be that if any of the aforesaid tests can be

successfully applied to the facts, then the court will have jurisdiction in

interdict proceedings.

[55] Not surprisingly, and perhaps by reason of the aforesaid, the position is

no different in the legal writings on the subject. Our legal writers likewise

appear to apply the aforesaid three tests indiscriminately and arbitrarily.

[56] For instance, Prest, in The Law and Practice of Interdicts (2nd Ed.)

p.266 relying on, inter alia, Kibe (supra) and other ancient authorities, states

that, on general principle, where an interdict is sought against a peregrinus

in the court’s area of jurisdiction, the court has jurisdiction if the cause of

action arose within such area.

[57] Whereas the above statement is generally correct, it does not apply in

all cases. It has now repeatedly and authoritatively been held, as mentioned

earlier in this judgment, that “causes arising” within the meaning of s.19(1)

do not refer to “causes of action” but to “legal proceedings duly arising.”

Although “legal proceedings duly arising” ordinarily include “causes of

action,” the converse is not necessarily true. “Legal proceedings” seem to

be a much wider concept than “cause of action.” The test for jurisdiction

can therefore not be confined to “causes of action” as suggested by Prest.

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[58] Nathan, The Law and Practice relating to Interdicts, p.38 dealing with

jurisdiction in general, states that in the case of interdicts, the same rule

prevails as in other causes of action; namely, that a high court has

jurisdiction over all persons residing or domiciled within its area of

jurisdiction (which is accepted as a generally correct statement), but it also

has jurisdiction “over all causes of action arising therein.” For the same

reasons mentioned above, this statement does not accord with the case law

on the meaning of “causes arising” within the meaning of s. 19(1) and can

therefore not be followed.

[59] Pistorious, Pollak on Jurisdiction (2nd Ed.) at 118-119 advocates the

principle applied in Kibe (supra). He states that the court can exercise

jurisdiction over a peregrinus in exactly the same way that it does over an

incola if the interdict relates to an unlawful act which is unlawfully either

not being performed, or threatened to be performed, within the area over

which it exercises jurisdiction.

[60] For the reasons mentioned above, I believe this approach is too narrow;

does not fit in with the meaning of “legal proceedings” as contemplated by

s.19(1); does not take cognizance of all the requirements for an interdict; and

may result in findings on grounds already rejected by the Appellate Division

in Estate Agents Board v Lek (supra).

[61] In my respectful view, the preferred approach which accords with the

accepted interpretation of s.19(1) and with general principle, is advocated by

Joubert in LAWSA (First Reissue) (Vol. 11) p.287 para 305. Relying on

Mtshali (supra), Kibe (supra) and Ex parte Hay Management Consultants

19

(Pty) Ltd 2000 (2) All SA 592 (W), the learned author on the subject

(Harms) states that if the requirements for the grant of an interdict are

satisfied by facts within the territorial jurisdiction of a High Court, the court

will possess jurisdiction to decide the matter. For the reasons more fully

discussed above, I respectfully agree with this approach and I intend to

follow it in this case.

[62] I therefore conclude that in interdict proceedings a court will have

jurisdiction if the requirements for the grant of an interdict are satisfied by

facts within the territorial area of jurisdiction of that court. I believe, with

respect, that this is the only test which should be applied in deciding

jurisdiction in interdict proceedings.

[63] The next step is to establish the facts supporting the three requirements

for an interdict, and then to establish whether or not those facts originated or

exist in the territorial area of jurisdiction of this court. This enquiry by

necessary implication entails an analysis of the applicant’s substantive legal

rights. It will be recalled that the applicant seeks a mandamus against the

respondent directing it to make available to her the credit record, file and

information pertaining to her under the National Credit Act. The first

requirement for a mandamus is a clear right. Her legal right to these

documents therefore calls for closer scrutiny.

[64] The conventional common law grounds of jurisdiction are usually

categorized in claims sounding in money, claims involving property, et

cetera. Therefore, in interdict proceedings, the substantive legal right to the

relief sought will usually determine the grounds of jurisdiction. For

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instance, if the interdict relates to immovable property to which the applicant

has shown a legal right, then normally the court in whose area of jurisdiction

the land is situated, will have jurisdiction. In casu, the legal right relied on

relates to a statutory claim to information, which is not covered by the

conventional common law grounds of jurisdiction. The enquiry must

therefore be to determine where, geographically, such right resides or is

situated.

[65] The right to access to information is a fundamental right under s.32 of

the Constitution of the Republic of South Africa, 1996. It operates both

vertically and horizontally and provides that “anyone has the right of access

to … any information that is held by another person and that is required for

the exercise or protection of any rights.”

[66] There are numerous statutes giving effect to this constitutional right in

South Africa. The National Credit Act 34 of 2005 (the Act) is one of these

statutes.

[67] The matter is dealt with in Chapter 4 of the Act. I will deal with only

those provisions I consider to be relevant.

[68] Every consumer has the right to apply for credit (s. 60). If the

application is declined, and on request from the consumer, the credit

provider (the bank) must advise the consumer in writing of the dominant

reason for the refusal (s.62). In doing so, the bank (as in this case) who has

based its decision on an adverse credit report received from a credit bureau

(in this case the respondent) must advise the consumer (the applicant) in

21

writing of the name, address and other contact particulars of the credit

bureau (s.62(2)). It is common cause that these procedures were followed in

this case.

[69] The Act makes detailed provisions for the manner in which the right to

access to information is not only to be exercised, but also to be complied

with by both the credit provider (the bank) and the credit bureau (the

respondent). Section 70 details the obligations of a credit bureau in this

regard. Section 70 (2) provides as follows:

“(2) A registered credit bureau must:

(a) …

(b…

(c)…

(d)….

(e)….

(f)….

(g) issue a report to any person who requires it for a prescribed

purpose or a purpose contemplated in this Act, upon payment

of the credit bureau’s fee except where the Act explicitly

provides that no fee be charged.”

[70] It is common cause that no fee could be charged under s.65(3), and that

the applicant required the information for the required purposes. The

question which needs to be addressed in this case is where, geographically,

the obligation to issue the report is located. There can be little doubt, in my

respectful view, that the decision to issue or not to issue the report was taken

at the respondent’s place of business; i.e. Stellenbosch. Also, the first step

22

in transmitting the report, once it is decided to issue same, is taken in

Stellenbosch. However, s.65 provides for the consumer’s (the applicant’s)

right to receive documents (my emphasis).

[71] S. 65 provides as follows:

“65 RIGHT TO RECEIVE DOCUMENTS

(1) Every document that is required to be delivered to a consumer

in terms of this Act must be delivered in the prescribed manner,

if any.

(2) If no method has been prescribed for the delivery of a

particular document to a consumer, the person required to

deliver that document must

(a) make the document available to the consumer through one

or more of the following mechanisms-

(i) in person at the business premises of the credit provider,

or at any other location designated by the consumer but

at the consumer’s expense, or by ordinary mail;

(ii) by fax;

(iii) by e-mail; or

(iv) by printable web-page; and

(b) deliver it to the consumer in the manner chosen by the

consumer from the options made available in terms of

paragraph (a).

(3) …

(4) …

(5) …

23

(6) ….

(7) ….”

[72] It therefore seems that the Act, broadly speaking, provides for 4 steps,

namely:

1. On request from a consumer, the credit provider must advise

the consumer in writing of the reasons for refusing credit, and if

such refusal is based on an adverse credit report, then the credit

provider must advise the consumer of the name, address and

contact details of that credit bureau (s.62);

2. The credit bureau is obliged (“must”) to “issue” a report to the

consumer who requires it for purposes contemplated in the Act

(s.70 (2) (g);

3. The consumer has the right to “receive” such report, and the credit

bureau has the obligation (“must”) to “make (it) available” to the

consumer in one of the prescribed methods, and then to “deliver”

it to the consumer in the manner chosen by the consumer (s.65(1)

and (2)).

4. The consumer then has the right to “inspect” the credit bureau,

national credit register, file or information concerning him/her

(s.72);

[73] Step1 refers to the credit provider and does not concern the respondent.

In any event, it has been complied with.

24

[74] Step 2 goes to the merits of this application. However, in order to

decide the location of Applicant’s right for purposes of jurisdiction, it

becomes not only necessary to comment on respondent’s obligation to issue

the report, but also an applicant’s right to receive such report (step 3) (my

emphasis).

[75] Step 4 concerns applicant’s right to inspect the credit bureau, or

national credit register, file or information concerning her. Such inspection

presumably only takes place after the credit report has been dispatched to

and received by the credit consumer, who then wishes to take the matter

further.

[76] Having inspected the records, the consumer then has the right to

challenge the accuracy of any information (s.72(1)(c). But this is not

necessarily the sequence. It seems that a consumer may carry out the

inspection under s.72(1)(b) without having first requested and received the

credit report, but this issue is not relevant for present purposes. The

applicant’s case is not that she wishes to “inspect” either respondent or any

of its files, but rather that the respondent is obliged to “issue” the credit

report to her by transmitting same to her attorney’s address in Mthatha under

s.70(2)(g). The focus should therefore be on the right and obligation to

respectively receive and issue the report, and on the nature and location of

such right and obligation (steps 2 and 3). I will deal firstly with

respondent’s obligation to issue the report.

25

[77] The respondent’s obligation to issue the report under s.70 (2)(g) of the

Act is dependant on the requirement that the applicant requires it for a

prescribed purpose or a purpose contemplated in the Act. The applicant

challenges the correctness of the information, and she obviously requires the

report to exercise her rights under the Act and to correct the information in

order to qualify for credit from the credit provider. I therefore have no doubt

that she “requires” the report for a purpose contemplated in the Act within

the meaning of s.70(2)(g). Fulfillment of such requirement automatically

triggers the respondent’s obligation under s.70(2)(g) to “issue” the report to

her. It is common cause that the respondent refuses to issue the report

unconditionally.

[78] The respondent claims, both in its papers and in argument before this

court, that the Act does not preclude a credit bureau from attaching certain

conditions to the release of the report. In the present matter the respondent

required the applicant to sign an agreement containing terms and conditions

upon which the report will be released. Such terms and conditions relate to

the payment of a fee (which is prohibited on the particular facts of this case

under the Act, and which condition was subsequently waived by the

respondent); a “voetstoets” clause in terms of which the respondent gives no

warranty in regard to the correctness of the report; an indemnification

against any loss or damage arising from giving false information to the

credit provider; a limitation of liability clause, and a confidentiality clause.

[79] The applicant refused to sign the required agreement. She insisted on

the unconditional release of the report. It was stalemate and the applicant

launched this application. The question is whether the respondent is legally

26

entitled to insist on a conditional release of the report, and to dictate the

conditions of release.

[80] The wording of s.70(2)(g) is peremptory: “A registered credit bureau

must issue a report …” (my emphasis). It is true that the Act does not,

either expressly or by implication, prohibit a credit bureau from attaching

conditions to the release, but in view of the mandatory tone of the provision

any conditional compliance is, in my respectful view, impliedly if not

expressly prohibited. The section therefore, in my view, commands

unconditional compliance. It does not follow, however, that conditional

compliance or even non-compliance, may not be authorized under the

Constitution Act, 1996. Such authorization was not argued before me, but it

is nevertheless necessary for purposes of completion to refer briefly to the

Constitution.

[81] Section 32 of the Constitution which entrenches the right to access to

information limits the horizontal application of s.32 to information “… that

is required for the exercise or protection of any rights.”

[82] It is not suggested by the respondent that the unconditional release of

the report is not required by the applicant for the exercise or protection of

her rights; or put differently, that only the conditional release of the report is

required for such protection. Indeed, the applicant avers that she requires

the information to enable her to exercise her rights under the Act and to

challenge the correctness of the information. She obviously also has the

right to protect her financial credibility against false or incorrect credit

27

reports. Section 32 is therefore, in my view, not available to the respondent

on the facts of this case.

[83] Secondly, section 36 of the Constitution deals with the limitation of

rights on the direct constitutional application of rights. The obstacle with

any reliance on s.36 is that the conditions which the respondent seeks to

attach to the release of the report, cannot be said to be a “… law of general

application …” within the meaning of s.36 of the Constitution. I therefore

hold that neither s. 32 nor 36 are available to the respondent in attaching any

conditions to its obligation under s.70(2)(g) of the Act to issue the report to

the applicant.

[84] Finally, and having regard to the object and purpose of the Act (to

which I shall shortly return), I believe the intention of the legislature under

s.70(2)(g) of the Act was to obligate the respondent to unconditionally issue

the report.

[85] It follows that I conclude that the respondent’s failure to issue the report

unconditionally is unlawful and in breach of its statutory obligations under

the Act.

[86] The argument that the respondent has substantially complied with its

duty to deliver the report by attaching copies of default judgments to its

answering affidavit, is unconvincing. The default judgments may constitute

partial reason for the adverse credit report, but they do not constitute the full

report to which the applicant is entitled under s.70(2)(g) of the Act. The

respondent remains in default of its obligations.

28

[87] In regard to the location of the respondent’s obligation to issue the

report, the answer must logically be: Stellenbosch. That is where the credit

records of the respondent and all files and information pertaining to her, are

kept. That is where the respondent carries on business and where it

performs its functions and duties, including its statutory functions and

duties. I therefore hold that the respondent must comply with s.70 (2)(g) of

the Act at its place of business in Stellenbosch.

[88] I now turn to the applicant’s right to receive the report. Such right is

essentially contained in s.65 of the Act quoted earlier in this judgment.

[89] The heading to s.65 reads:

“Right to receive documents”

[90] The section provides that every document that is required to be

delivered in terms of the Act (which includes the credit report mentioned

above), must be delivered in the prescribed manner; and in the absence of a

prescribed manner, in the manner provided for in sub-section (2) (a) and (b).

This entails making the document available to the consumer:

(i) in person or by ordinary mail;

(ii) by fax;

(iii) by e-mail; or

(iv) by printable web-page;

and then to deliver the document in the manner chosen by the

consumer from the above options.

29

[91] Starting with sub-section (1), the “prescribed manner” of delivery is

dealt with in the definition of section 1 of the Act where the word

“prescribed” is defined as “prescribed by regulation.” The regulation in

turn, describes “delivery” in the definition of section 1 thereof. To

paraphrase, “delivered” is defined in the Regulations as, “unless otherwise

provided for …,” by sending a document by hand, by fax, by e-mail, or

registered mail to an address chosen in the agreement by the proposed

recipient; and if no such address is available, to the recipient’s registered

address.

[92] In Munien v BMW Financial Services (SA) (Pty) Ltd and Another 2010

(1) SA 549 (KZN) at 554/5 (para 12) the court, per Wallis J, came to the

conclusion that the Minister has prescribed the manner of delivering

documents to a consumer in terms of the Act and that the method of delivery

must be in accordance with the provisions of the definition of “delivered” in

the regulations, rather than in terms of s.65(2) of the Act.

[93] In the case of Starita (aka Van Jaarsveld) v ABSA Bank Ltd and

Another 2010 (3) SA 443 (SG) Gautschi AJ remarked at p.450 (para.18.4) as

follows in regard to the aforesaid conclusion reached in Munien (supra):

‘It is fallacious, in my view, to apply a definition in the Regulations to

an expression used in the Act (the National Credit Act 34 of 2005).

The Act does not permit the Minister, in making Regulations, to define

expressions in the Act; the Minister is not empowered to dictate

matters in the domain of the Legislature. The definition of the word

‘delivered’ in the Regulations also does not purport to contain a

‘prescribed manner’ for delivery. It is only a definition and simply

30

indicates the meaning to be ascribed to the word ‘delivered’ as used

in the Regulations. In my view, therefore, no regard can be had to the

definition of the word ‘delivered’ in the Regulations in interpreting

sections of the Act.”

[94] Both Munien (supra) and Starita (supra) were concerned with whether

a section 129 notice under the Act must be received by the consumer before

it will constitute a valid notice, entitling the credit provider to approach the

court for an order to enforce the credit agreement. That is not the issue in

this case and to such extent both Munien (supra) and Starita (supra) are

distinguishable from this case. It is common cause in this case that the

respondent has failed to issue the credit report to the applicant as it was

required to do under s.70(2) (g) of the Act. The issue in this case is whether

the applicant has a legal right in terms of the Act to be furnished with the

report; and if so, where such right resides or is situated or located.

[95] This application is not concerned with either the question whether

respondent must prove “receipt” of the report on applicant; (the issue in

Munien (supra) and Starita (supra), nor with the question how the “issue”

of the report by the respondent under s.70(2)(g) of the Act will constitute

proper delivery thereof under s.65. However interesting these issues may

be, the fact remains that it is common cause that the respondent has failed to

issue or deliver the report to the applicant. The issue whether such delivery,

when and if it takes place, is in accordance with the provisions of the Act,

may or may not arise in future. These issues have not yet arisen, and it is

unnecessary and premature, indeed undesirable, to comment thereon at this

early stage.

31

[96] I believe it is neither the function nor the duty of this court to determine

the manner or method of delivery of a report which is issued by a credit

bureau to a consumer under section 70(2)(g) of the Act. Its duty is to

determine the content and nature of the applicant’s right, on the facts of this

case, to receive or be issued with the report under s.70(2)(g) of the Act, and

to determine the location of such right for purposes of jurisdiction.

[97] However, for purposes of this judgment I accept, without making any

finding in this regard, the correctness of the findings in both Munien (supra)

and Starita (supra) to the effect that a section 129 notice need not be

received by a consumer, although the duty remains on the credit provider to

deliver such a notice in terms of the Act. By analogy, and without making

any finding in this regard but only for purposes of this judgment, I accept

that there is no onus on the respondent to prove receipt of the report by the

applicant, but merely that it was issued to her in terms of s.70(2)(g) of the

Act (my emphasis).

[98] Whatever nomenclature is used in the different sections of the Act and

the regulations to submit documents to a consumer, they have one common

denominator: they protect consumers by regulating and improving standards

of consumer credit information and reporting, and to this end they regulate

the issue of reports to consumers by credit bureaux and promote a fair and

transparent credit industry. That is not to say a credit bureau necessarily

bears an onus of proving receipt (my emphasis) of a document on a

consumer, but it is obliged to follow the prescripts of the Act or regulations

in issuing, delivering, serving or furnishing a document or report under the

32

Act or regulations. The aim and purpose of these prescripts is that the

information comes to the attention of the consumer to ensure that his or her

rights are protected. The manner and method of transmitting the information

to a consumer in all the regulations and sections under the Act, contain one

or more of the methods described in s.65(2) of the Act, namely; delivery in

person, by ordinary mail, by fax, by e-mail or by printable web-page. (see,

for instance, regulations 24(5); 34(1); 37; 38(1); 46; and s.s.96 and 168).

Whatever verb is used to describe the transmission of a document to a

consumer, or whatever method of transmitting the information is used, the

object is that the information reaches and comes to the attention of the

consumer.

[99] The preamble to the Act specifically describes its object and purpose,

and I paraphrase: “To promote a fair … market place for access to

consumer credit and for that purpose to provide for … improved standards

of consumer information; … to provide for registration of credit bureaux

…”

[100] Section 3 describes the purpose of the Act. It states that, to

paraphrase, that the purpose of the Act is “ … to promote and advance the

social and economic welfare of South Africans, promote a fair, transparent

and accessible credit market and industry, and to protect consumers by,

inter alia, improving consumer credit information and reporting and

regulation of credit bureaux ….”

[101] The heading to s.65 of the Act refers to the consumer’s “right” to

receive documents, and sub-sections (1) and (2) dealing with the delivery”

33

of documents to a consumer are in peremptory terms, and so are all the other

sections and regulations dealing with the same subject and referred to above.

[102] In FirstRand Bank Ltd v Dhlamini (unreported, GNP, Case No.

50146/2009, delivered on 17 March 2010 (Murphy J) at paras 28/29) and in

ABSA Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512 (D)

(Naidu AJ) at paras 54/56, both courts emphasized the purpose of the Act as

set out above, and the fact that it is directed at the interests of consumers. I

agree with these views.

[103] The effect of all of the aforesaid seems to be the following: the

sections and regulations describing the manner and method of delivery of

documents by a credit bureau to a consumer are all designed to ensure that

the required information comes to the attention of the consumer. More often

than not, the credit agreement itself contains an address chosen by the

consumer at which the document must be delivered, and also the manner in

which it must be delivered. In the absence of such an agreement, as is the

case in this application, and if s.65 applies, then the document must be made

available and delivered “…to the consumer …” by the person required to

deliver such document.

[104] If the document is delivered to the consumer under s.65(2)(b), the

latter has the right to choose the mechanism of delivery from one of the

options described in sub-section (2)(a). In all the other sections and

regulations dealing with delivery of documents, the sender’s obligation is to

furnish the document to the consumer. As a matter of necessary implication,

this can only be achieved if the document is delivered either at the address

34

chosen by the consumer in terms of the credit agreement, or at his or her

known residential or business address. It follows, in my respectful view,

that the consumer’s right to receive the information is located either at the

address chosen by him or her, or at his or her residential or business address

known to the sender. I believe there is judicial support for this proposition.

[105] In Lek v Estate Agents Board 1978 (3) SA 160 (CPD) (the judgment

of the Court of first instance) the applicant, an estate agent, was an incola of

the court but the respondent (the Estate Agents Board) was a peregrinus, in

that it “resided” in Johannesburg at the relevant time. The respondent

decided at its meeting in Johannesburg not to issue the required fidelity fund

certificate to the applicant who practiced as an estate agent in the Cape

Town area, and communicated such decision to the latter in Cape Town.

The applicant “appealed” against such decision to the CPD in terms of the

relevant legislation. The respondent objected to the jurisdiction of the CPD

on the basis that the decision appealed against was taken in Johannesburg

and not in Cape Town.

[106] In considering the issue of jurisdiction, Friedman J held that since the

communication only became effective when it was received by or

communicated to the applicant in Cape Town, the decision which forms the

subject matter of the litigation, was pronounced in Cape Town. Therefore,

the “proceedings” had their origin within the area of jurisdiction of the

Court within the meaning of s.19(1) of the Supreme Court Act, and the CPD

accordingly had jurisdiction in regard to that decision (at 167H-168E).

35

[107] On appeal, and reported in Estate Agents Board v Lek (supra), the

Appellate Division (as it was then known) confirmed the judgment, but for

different reasons. Trollip AJA, speaking on behalf of an unanimous bench,

regarded the reasoning of the Court a quo in finding jurisdiction, as “too

tenuous and uncertain” (at 1067A). He asked, rhetorically, what if the

respondent (Lek) had received the letter while he was visiting Johannesburg

or some other province?

[108] The Court of Appeal nevertheless confirmed the judgment and

dismissed the appeal on the ground that the CPD did have jurisdiction. It

found jurisdiction on the basis that Lek resided and practiced in Cape Town,

and the decision of the Board, taken in Johannesburg, adversely affected his

legal capacity or right to practice in Cape Town as an estate agent.

(p.1067B-1069G).

[109] Admittedly, as Trollip JA was at pains to point out, the relief claimed

by the applicant in Estate Agents Board (supra) was not a mandamus, but in

the form of a declaratory order. Nevertheless, in my respectful view, the

principle in Estate Agents Board (supra) finds equal application in this case.

[110] In casu, the applicant’s attorney requested that the report be addressed

to her at the address of her attorneys in Mthatha. This is where, in terms of

the Act and regulations, her right to receive the report is located. By failing

or refusing to comply with its obligations under s.70(2)(g) of the Act to issue

the report to her, the breach of Applicant’s right to receive the report was

committed in Mthatha. The inhibitory effect of respondent’s failure to

comply with its statutory obligations hit the applicant in Mthatha where she

36

is resident and where she controls her financial affairs. As was the position

in Estate Agents Board (supra), the physical failure of respondent in

Stellenbosh to transmit the report to Applicant in Mthatha, as it was required

to do, adversely affected the Applicant in Mthatha where she was entitled to

receive the report. Both the first and second requirements for a mandamus

therefore originated within the area of jurisdiction of this court – the

presence of the third requirement being common cause

[111] It is therefore immaterial that some elements of the wrong was

committed in Stellenbosch, i.e. the decision not to deliver the report. It may

very well be, although I make no finding in this regard, that both this court

and the High Court in Cape Town have concurrent jurisdiction to entertain

this application.

[112] Finally, and although convenience is not per se a ground for

jurisdiction, it is an increasingly important consideration which the court

will take into account in a proper case. See, for instance, Sonia (Pty.) Ltd. v

Wheeler 1958 (1) SA 555(A).

[113] In Estate Agents Board (supra) Trollip JA said at 1067E:

“In the present context of our unitary judicial system of having one

Supreme Court with different Divisions, as set out earlier in this

judgment, convenience and common sense, are, inter alia, valid

considerations in determining whether a particular Division has

jurisdiction to hear and determine the particular cause.”

37

[114] Having particular regard to the fact that the applicant essentially seeks

to enforce a right guaranteed by the constitution and that such right vests

within the area of jurisdiction of this court, and that the breach affects her

constitutional rights in the area of jurisdiction of this court, it seems that

every consideration of convenience, fairness and common sense indicate that

she should be able to enforce her rights where she is most affected by the

infringement. From the perspective of the respondent, the order which the

applicant seeks does not require it to do anything outside of its domicile or

place of business. It is simply required to deliver the information to the

Applicant through one of the mechanisms prescribed by the Act or

regulations, and those steps are taken in Stellenbosch where the respondent

conducts its business, irrespective of which court in South Africa orders it to

do so. An order emanating from this court cannot therefore cause any

prejudice to the respondent (to the extent that it is a relevant factor).

[115] For the reasons mentioned I accordingly come to the conclusion that

the responded is obliged to deliver the requested information to the

applicant, and that this Court has jurisdiction to entertain the application.

[116] There remains one further issue which needs to be addressed. Mr

Botma, on behalf of the respondent, spent much time and energy in

argument on the doctrine of effectiveness and urged me to find that this

court has no jurisdiction to entertain the application on the ground, inter

alia, that any order that this court makes can only be enforced in

Stellenbosch. He submitted that on this ground alone this court therefore

has no jurisdiction.

38

[117] The short answer to this argument is that s.26 of the Supreme Court

Act 59 of 1959 provides that the civil process of a provincial or local

division of the High Court “… shall run throughout the Republic and may

be served or executed within the jurisdiction of any division.”

[118] The purpose of the amendment of the Act by the introduction of s.26

was not to augment the jurisdiction of the High Court in any way, but to

streamline the procedure for the enforcement of the process of one division

in the area of another. It is concerned with service and execution of civil

process; it is purely procedural and does not, and indeed cannot, effect any

change to substantive law. See Estate Agents Board (supra) at 1062D-

1063H; Ewing McDonald (supra) at 263E-264D.

[119] Although s.26 does not confer jurisdiction on a court, it certainly

establishes a mechanism or procedure whereby a judgment or an order of

one division can be enforced in another and, as such, may satisfy the

requirement of an effective judgment.

[120] In Estate Agents Board Trollip J.A. specifically recognized that

because one division may have jurisdiction by reason of the application of

the doctrine of effectiveness, such jurisdiction is not exclusive. He

proceeded to say at 1064A, that:

“To decide whether another division also has jurisdiction to hear the

matter, approach (a)-the nature of the proceedings - can also be

adopted and the procedural provisions of the Supreme Court Act of

1959 be regarded.”

39

[121] Historically, the doctrine of effectiveness lies at the root of

jurisdiction. See: Harms, Civil Procedure in the Superior Court, A-17 and

the authorities cited under footnote 1 thereof. However, as noted by Harms,

the doctrine has limitations for the reasons discussed by the learned author.

He concludes:

“It is doubtful whether this doctrine can survive scrutiny.”

[122] The doctrine of effectiveness has further been eroded by the latest

decision of Bid Industrial Holdings (Pty) Ltd. v Strang and Another

(Minister of Justice and Constitutional Development, Third party) 2008 (3)

SA 355 (SCA) at 370 para 59 where Howie P. held that the common-law

rule that arrest is mandatory to find or confirm jurisdiction cannot pass the

limitations test under s.36(1) of the Constitution and must therefore be

abolished. Speaking on behalf of the full court, he stated that where

attachment is not possible, the abolition of the rule must be replaced by “…

the practice according to which a South African High Court will have

jurisdiction if the summons is served on the defendant while in South Africa

and there is sufficient connection between the suit and the area of

jurisdiction of the court concerned so that disposal of the case by that

court is appropriate and convenient.” (my emphasis).

[123] Howie P. proceeded to say that:

“… the new practice could itself be subject to development with

time.”

[124] In any event, as I remarked earlier, jurisdiction can be found, as I did

on the facts of this case, on the nature of the proceedings without having

40

regard to effectiveness. In terms of s.26 of the High Court Act any order

which this court makes has equal force in Stellenbosch where it must be

enforced.

[125] I accordingly make the following order:

1. The respondent is hereby ordered to deliver to the

applicant, in terms of the provisions of the National

Credit Act 34 of 2005, without charge, all files, reports or

information concerning the applicant which constitute the

adverse credit report to Capitec Bank Ltd., Stellenbosch

and delivered by respondent to the said bank.

2. The respondent is ordered to pay the costs of this

application.

_______________________

ALKEMA J

Heard on : 05 May 2009

Delivered on : 01 July 2010

Counsel for Applicant : Mr Matebese

Instructed by : A. S. Zono & Associates

Counsel for Respondent : Mr Botma

Instructed by : Chennells Albertyn Attorneys

41