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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 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 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.

[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 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 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 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 (5^th Ed.) (Vol. 1) p.4-93; Estate Agents Board v Lek 1979 (3) SA 1048 AD at 1059C-1060A.

[25] Since the 17^th 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 18^th 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 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 [1990] ZASCA 86; 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.”

[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.

[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).

[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.

[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.”

[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.

[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.

[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 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 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 (2^nd 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.

[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 (2^nd 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 (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 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 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:

1. …

(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 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) …

(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);

2. 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)).

2. 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.

[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.

[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 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 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.

[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:

1. in person or by ordinary mail;

2. by fax;

3. by e-mail; or

4. by printable web-page;

and then to deliver the document in the manner chosen by the consumer from the above options.

[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 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.

[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 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” 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 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).

[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 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.”

[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.

[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.”

[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 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

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