The interplay between the National Credit Act 34 of 2005 the Consumer Protection Act 68 of 2008 with respect to instalment agreements

Abstract

This study undertakes a critical analysis of the MFC v Botha case in order to address the simultaneous and parallel application of the relevant legislative provisions of the CPA, NCA related specifically to ownership in terms of motor vehicles and instalment agreements. This study further investigates the procedural necessity of accurate legislative interpretation in light of the subject matter of concern (merx), notably identified as motor vehicles in the aforementioned case, and, as such, in accordance with the first critical analysis construct identified, explores the necessary and sufficient inclusion of the National Road Traffic Act 93 of 1996 in cases relating to motor vehicles. The third critical analysis construct presented in this study comprises the exploration of legislative intent with regard to alignment to the Bill of Rights and the Constitution in terms of consumer protection and best business practices. The constructs identified above are based on the study’s argument that there may be a lack of procedural rationality in the MFC v Botha case, wherein it may be argued that the the judiciary erred in its finding and sought to uphold common law principles which may undermine the vulnerable natural person consumer, while disregarding necessary and sufficient procedural rationality on the part of the credit provider. The second critical construct addresses this issue in terms of the potential negligent disregard of the direct influence and interpretive authority that the NRTA and other legislation related to motor vehicles has on all matters pertaining to motor vehicles in the South African context of ownership of goods. The critique of the procedural rationality presented in the MFC v Botha case is expounded upon in answer to the research questions set out in Chapter 1 in terms of the fact that the NRTA specifically addresses vehicle ownership and its definitional elements, thus providing a procedural mechanism that supports the application and enforcement of consumer rights under section 56 of the CPA without resorting to complex and heavily burdensome remedies such as cession of ownership and further aligns with established fiscal practices. In order to support the aforementioned argument, this study focuses on the current practical need for correct legislative application is based on the risk of legal error due to the misinterpretation and erroneous application of legislation, specifically with regard to the CPA and the NCA in the context of motor vehicles purchased through instalment agreements. As such, this critical case analysis is undertaken through both a case-based and literature review substantiated argument presentation in favour of upholding the procedural rationality of safeguarding consumer protection rights and responsibilities while maintaining fair and ethical credit provision and business practices through the use of all relevant legislation in relation to the parties involved as well as the subject matter of the case in question. As such, this study argues that the simultaneous legislative consideration of the CPA and NCA is not sufficient in the context of motor vehicles, specifically, motor vehicles purchased through instalment agreements, which require reference to the NRTA for the clarification of the rights and responsibilities of the parties involved.