The majority in the SCA interpreted s 12B(1)(b) of the National Credit Act 34 of 2005 [inserted by National Credit Amendment Act 19 of 2014] as not having retrospective application and did not invalidate the agreement relied upon by bank and so summary judgment in favour of the bank was correctly granted.

Kaknis v Absa Bank Limited; Kaknis v Man Financial Services SA (Pty) Ltd (08/16) [2016] ZASCA 206 (15 December 2016)

Judgment of NP Willis JA (dissenting)

[28]   I have had the benefit of reading the judgments prepared by Shongwe and Van der Merwe JJA.  I agree with Shongwe JA but consider that it may be helpful if I add a few additional remarks in support thereof.  It is indeed correct as Van der Merwe JA has emphasised that, generally speaking, there is a presumption against the retrospective operation of law.  The principle is an ancient one alluded to by J Voet in Commentarius Ad Pandedas (1723) 1.3.17). It is intrinsic to the rule of law.  I understand the principle to derive from the fact that in freedom-loving and enlightened societies that human beings are free to do as they please, except as is either proscribed or prescribed by law.

[29]   The principle against the retrospective operation of the law is not, however, an absolute one.  For example, another principle that in favour of freedom has the consequence that new penal provisions that operate in favour of the persons thereby affected do indeed have a retrospective effect but those that work against them do not. It was made clear in R v Mazibuko 1958 (4) SA 353 (A) at 357E, that  it is indeed also an ancient, well-established principle of our common law that an increase in penalty will ordinarily not operate retrospectively in circumstances where that additional burden did not apply at the time when the offence was committed.  This principle was reaffirmed in R v Sillas 1959 (4) SA 305 (A) at 311E-G and S v Mpetha 1985 (3) SA 702 (A) at 707H-708A and 717I-718B.  Care must obviously be taken not to stretch the analogy too far or inappropriately.

[30]  Sight must not, however, be lost of the fact that among the reasons we have the law of prescription is to set persons free from the burden of debt.  The question we have to ask ourselves is whether, under our constitutional dispensation, it is better, in the transitional period, to set consumers forever free from debt that has prescribed or to allow credit providers the freedom to revive debt that has prescribed through the mechanism of ‘acknowledgement’.  The question is a hard one, especially in the circumstances of this case.

[31]   Nevertheless, if the National Credit Act 34 of 2005 (NCA) is read ex visceribus actus (see, for example, City Deep Limited V Silicosis Board 1950 (1) SA 696 (A) at 702) (comprehensively, as a whole), I am persuaded that this court must come down in favour of the consumer, rather than the credit provider.  I am fortified in this view by reference to a number of cases in which the Constitutional Court has expressed itself on the purposes of the NCA.  I refer, in particular, to

  • Sebola & another v Standard Bank of South Africa Ltd & another [2012] ZACC 11; 2012 (5) SA 142 (CC) para 40;
  • Ferris & another v Firstrand Bank Ltd [2013] ZACC 46;2014 (3) SA 39 (CC) paras 17-18;
  • Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC) paras 36-37 and
  • Nkata v Firstrand Bank Ltd  [2016] ZACC 12; 2016 (4) SA 257 (CC) paras 92-100.