National Credit Regulator v Opperman (CCT 34/12)  ZACC 29; 2013 (2) BCLR 170 (CC); 2013 (2) SA 1 (CC) (10 December 2012) per Van der Westhuizen J (Mogoeng CJ, Moseneke DCJ, Khampepe J, Nkabinde J and Skweyiya J concurring; with Cameron J, Froneman J and Jafta J dissenting)
1 The central issue is whether section 89(5)(c) of the National Credit Act (NCA) is consistent with the right not to be arbitrarily deprived of property, recognised in section 25(1) of the Constitution. The Western Cape High Court, Cape Town (High Court) found that it was not, because it denies an unregistered credit provider the right to restitution of money lent out, without affording a court the discretion to consider whether restitution would be just and equitable. The High Court declared the provision to be constitutionally invalid. This Court has to determine whether the order of constitutional invalidity should be confirmed.
2 The National Credit Regulator (NCR) appeals against the declaration of constitutional invalidity. The first respondent, Mr Opperman, opposes the appeal and asks this Court to confirm the order of the High Court. The second respondent, Mr Boonzaaier, and the third respondent, the Minister of Finance, did not file opposing papers in this Court. The fourth respondent, the Minister of Trade and Industry (Minister), opposes the confirmation of the order.
3 The questions to be answered are:
(a) What is the correct interpretation of section 89(5)(c)?
(b) Does section 89(5)(c) deal with property for the purposes of section 25(1)?
(c) Does the provision amount to arbitrary deprivation of property?
(d) Does it contain a constitutionally permissible limitation of the right protected in section 25(1)?
(e) Depending on the above, what is the appropriate remedy?